UCLA Undergraduate Law Journal - Volume XXII

UCLA UNDERGRADUATE LAW JOURNAL

UCLA UNDERGRADUATE LAW JOURNAL

VOLUME 22

EDITORIAL BOARD

Editor-in-Chief

Natalie Jiang

Managing Editor

Olivia Bielskis

Senior Editors

Lauren Enge

Carmen Le

Executive Article Editors

Mischa Gureghian Hall

Catherine Hamilton

Editors

Zoie Burt

Sarah Wang

Japji Singh

Gali Hoffman

Alexander Azilazian

Leila Chiddick

President

Ashlie Andrade

Vice Presidents

Sara Eckmann

Lana Rodman

SPRING 2023

The UCLA Undergraduate Law Journal is published every Spring quarter by the UCLA Pre-Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities with the aim of furthering undergraduate legal research. Copies are available at the Pre-Law Society office as well as online at the Pre-Law Society website: www.uclaprelawsociety.com.

It is a great honor to present Volume 22 of the UCLA Undergraduate Law Journal. In its twenty-second year, the Journal continues to be the foremost publication of undergraduate legal scholarship in the nation. Since its inception, the Journal has been a unique opportunity for undergraduates at UCLA and beyond to examine pressing issues of our time using a legal framework. The Journal provides this opportunity to students regardless of their background, interests, or field of study. Volume 22 sees contributors challenge some of the most pressing and unique legal questions of our time. How does artificial intelligence in court technology impact a fair trial in China? How does animal welfare and human rights intersect under the extraterritoriality doctrine? As the United States faces a surge of anti-transgender rights legislation, the Journal is proud to stand with the transgender community and imagine the ways we can make our legal systems more gender inclusive and extend greater legal protections to transgender individuals.

Volume 22’s contributors make up some of the most talented and thoughtful in the Journal’s history. This Volume features the brightest legal scholars from UCLA, UC Berkeley, and the University of Cambridge. The Executive Editors evaluated each article with great consideration, and we ultimately selected a cohort of exceptionally brilliant, hardworking, and dedicated writers and editors. Over the course of the volume, each contributor engaged in extensive collaboration and rigorous critical thinking to create and develop the articles in this publication.

As I conclude my third and final year with the Undergraduate Law Journal, I would like to thank the Executive Editors team, Olivia Bielskis (Managing Editor), Lauren Enge (Senior Editor), Carmen Le (Senior Editor), and Catherine Hamilton (Executive Articles Editor) for their efforts over the course of the year. Without their diligence, the publication of this volume would not have been possible, and I am extremely grateful and honored to work alongside them. I would like to especially thank Mischa Gureghian Hall (Executive Articles Editor), our next editor-in-chief, whose depth of legal knowledge and commitment to elevating the Journal as the nation’s preeminent forum of undergraduate legal research has been invaluable. Finally, I would like to wholeheartedly thank all the writers and editors of Volume 22 for their tireless work and passion. I have had the privilege to see firsthand each contributor’s dedication to arguing, researching, and challenging a diverse range of salient legal issues and envisioning how the law can make our world more just and equitable. It is my hope that the articles that follow will, in turn, inspire you and many others to think more critically and work toward a better, fairer legal system.

Natalie Jiang Editor-in-Chief

Volume XXII of the UCLA Undergraduate Law Journal

UCLA UNDERGRADUATE LAW JOURNAL

Nathaniel Catlin*

Military Research and Sovereign Immunity: Changing the Laws of Today to Protect the Soldiers of Tomorrow

ABSTRACT. The U.S. military’s biotechnological research is currently regulated by a legal framework that bars soldiers from receiving compensation for damages pursuant to their participation and nullifies deterrents against conducting research unconstitutionally. As a result of adjudicating upon issues reserved for Congress, the Supreme Court has severely narrowed the applicability of compensation mechanisms for military personnel damaged during active-duty service, such as in the Federal Torts Claims Act (FTCA), as well as the applicability of deterrents against unconstitutional human experimentation. When considered alongside the broad defenses offered to private government contractors and the goals of current military research, the problems caused by a lack of compensation and deterrence will only continue to increase in severity and urgency. These issues may be resolved through the development of alternative legal doctrines or the reformation of current doctrines guiding the legal framework surrounding biotechnological research. Congress must also address the policy judgments the Court has mistakenly reserved for itself and regulate the pursuit of future biotechnological research.

*Nathaniel Catlin is a second-year Psychology Major and Philosophy Minor who plans on attending law school after college and becoming a public defender. He is also involved in the Bruin Political Review as a writer for the global section and JusticeCorps as undergraduate intern. He would like to thank Zoie Burt for her thoughtful feedback and work throughout the process of editing this article. He took inspiration for this article from his father who served as a JAG in the United States Airforce.

Zoie Burt is a junior majoring in English and minoring in Asian Languages & Cultures (Chinese). She has lived abroad in the Netherlands while on exchange at Utrecht University, where she was able to tour The Hague and familiarize herself with the international law center of the world. She is planning on attending law school upon graduation to specialize in legal research and history. Zoie would like to thank Nate for being a tireless writer over the course of producing this article, as well as the Undergraduate Law Journal for this fantastic legal researching opportunity.

Introduction

In the years following World War II, the United States has often reinforced its role as a global superpower through demonstrations of its military superiority. A key aspect of this process is the overt image of its technological superiority, which has resulted from the militarization of research across various academic disciplines. In this case, “militarization” refers to the restructuring of research endeavors in preparation for the battlefields and conflicts of tomorrow.1 This phenomenon has become the catalyst for new areas of research focused on the enhancement of soldier ability and efficacy.2 The rapid progress of this research alongside its increasingly ambitious aims has raised a number of ethical and legal concerns, especially for those participating in clinical trials. Debates over the use of military technology in civilian life and the reintegration of soldiers into civilian life have become increasingly important as new conflicts and research projects loom on the horizon.

Since 1987, the Supreme Court’s characterization of federal sovereign immunity, which protects the government from being sued without its consent, has prevented military personnel from holding their perpetrators accountable and receiving compensation for damages arising from human experimentation. This characterization is best exemplified by the case of Master Sergeant James B. Stanley, who sued the government after suffering chronic and immediate damages pursuant to his participation in pharmaceutical military research involving LSD.3 Stanley sued the government by filing a Bivens claim and an FTCA claim. In the 1971 case of Bivens v. Six Unknown Agents, the Court created Bivens claims as a legal remedy for individuals whose constitutional rights had been violated by federal employees. 4 FTCA claims were created by the Federal Torts Claims Act to provide individuals with compensation for damages

1 Andrew Bickford, Anthropology of Militaries and Militarization, in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL & BEHAVIORAL SCIENCES 483, 484 (James D. Wright ed., 2d ed. 2015).

2 ANDREW BICKFORD, CHEMICAL HEROES 18–19 (2021).

3 Stanley v. United States, 483 U.S. 669 (1987).

4 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392–95 (1971).

MILITARY RESEARCH AND SOVEREIGN IMMUNITY

resulting from the negligent actions of a federal employee. 5 The Court ruled against allowing Stanley to proceed with either claim because the damages he suffered were incident to his active-duty service.6 Along with the problematic rationales used to bar Stanley’s claims, this ruling is concerning because it can be used to reject other claims involving military biotechnological research, which has continued to progress in ambition and scope since the mid-twentieth century.7 In addition to the Stanley ruling, the government contractor defense upheld in Boyle v. United Technologies Corp. is equally alarming because it waives a government contractor’s liability in the event that its research ends up damaging civilians and servicemen.8 Both of these cases demonstrate how the cost of federal sovereign immunity can outweigh the benefits, especially when it obstructs the pursuit of justice.

When considering federal sovereign immunity and its relationship with the military, past scholarship has focused on alternatives to the Feres doctrine,9 solutions to the ambiguity of the Boyle ruling,10 and how military justice ought to be carried out in Article I courts or Article III courts.11 Yet, scholars have neglected to analyze the application of federal sovereign immunity to contemporary biological and pharmaceutical military research. My article will identify the problems created by the rulings of both cases, namely issues of compensation, deterrence, and liability, and propose the necessary changes in legal doctrine and legislature needed to resolve them.

This article proposes a new understanding of how to address sovereign immunity related to biotechnological military research. First, the article will

5 28 U.S.C. § 2674.

6 Stanley, 483 U.S. 669.

7 BICKFORD, supra note 2, at 9.

8 Boyle v. United Tech. Corp., 487 U.S. 500 (1988).

9 Deirdre G. Brou, Alternatives to the Judicially Promulgated Feres Doctrine 57–67 (Apr. 2007) (LL.M. Thesis, JAG Sch. U.S. Army) (on file with the U.S. Def. Tech. Info. Ctr.).

10 Sean Watts, Boyle v. United Technologies Corp. and the Government Contractor Defense: An Analysis Based on the Current Circuit Split Regarding the Scope of the Defense, 40 WM. & MARY L. REV. 687, 687–88 (1999).

11 Max Jesse Goldberg, Congressional Influence on Military Justice, 130 YALE L.J. 2110 (2021). Article I military courts do not have the full judicial oversight offered to federal courts because they are simply elected tribunals to judge a transgression against military law and enact court martials. On the other hand, Article III courts are full federal courts that have the judicial power of the United States invested in them and whose judges are appointed by the President.

cover current U.S. military research exploring new biotechnological and pharmaceutical methods for soldier enhancement. The second section will focus on the legal and legislative history surrounding military tort claims, Bivens remedies, and sovereign immunity. Specifically, it will examine the application of the Feres doctrine up until Stanley v. United States and describe the enshrining of the government contractor defense used in Boyle v. United Tech. Corps as it relates to the current production of military biotechnology by private companies. Third, this article will analyze the shortcomings of the Feres doctrine’s rationales, specifically regarding claims involving current military biotechnological research, and propose an alternative test that could be used to adjudicate Bivens and FTCA claims without explicit legislative changes. It will also advocate for Boyle to be overruled or, at the very least, be revisited because the government contractor defense can be used as a loophole for dangerous, private, and unregulated military research even if the Feres doctrine is reformed. Finally, the last section will discuss the necessary legislative steps to properly compensate soldiers for damages that may not yet exist, regulate the applications of the government contractor defense, and guide future laws pertaining to military biotechnological research.

I. Development of Biotechnological and Pharmaceutical Military Research

This section will focus on biotechnological and pharmaceutical military research because of their prevalence in warfare and the far-reaching implications such technologies have for soldiers during and after their service in the military.

A. Biotechnologies and Pharmaceuticals on the Battlefield

Biotechnology is defined as the act of using “living material or biological products to create new products for their use in various pharmaceutical, medical, agricultural, and environmental applications.”

12 Early examples of

12 Ashish Swarup Verma et al., Biotechnology in the Realm of History, 3 J. PHARM. & BIOALLIED SCI . 321 (2011).

MILITARY RESEARCH AND SOVEREIGN IMMUNITY

biotechnology being used for warfare include soldiers drinking wine laced with opium in Homer’s Odyssey, 13 assassins smoking hashish in the Middle East, 14 and ancient Siberian tribes consuming psychedelic mushrooms before battle.15 Regarding the U.S. military, combat drugs such as amphetamine, cocaine, dextroamphetamine,16 morphine, and sedatives have been used in military operations ranging from the Civil War to the War in Iraq.17 Recently developed drugs have become more adapted towards solving problems specific to warfare such as modafinil, a cognitive enhancement drug,18 and propranolol, a drug that blocks emotional attachment to memories that may induce PTSD.19 As research progresses, it is becoming increasingly likely that biotechnologies will become one of the major deciding factors of future wars.

B. U.S. Military Research: Current Goals and Projects

The future of biotechnological military research lies in soldier enhancement. One of the U.S. military’s first research projects on using biotechnology for soldier enhancement was the “Idiophylactic Soldier” project presented by Dr. Marion B. Sulzberger in 1962.20 The goal of this project was to explore the concept of “idiophylaxis,” which refers to “every form of protection that can be given to the soldier by preceding mental and physical preparation through

13 Keith Williams, Drugs Used in Conflict and Wars, Part 3: Opium, CAYMAN CHEM. (Sept. 17, 2020), https://www.caymanchem.com/news/drugs-used-in-conflict-and-wars-part-3.

14 Hashish A Short History, NARCONON INT’L , https://www.narconon.org/druginformation/hashish-history.html (last visited Mar. 8, 2023).

15 Lukasz Kamienski, Combat High – How Armies Throughout History Used Drugs to Make Soldiers Fight , MIL. HIST. NOW (Feb. 27, 2017), https://militaryhistorynow.com/2018/05/08/combathigh-a-sobering-history-of-drug-use-in-wartime/.

16 Lukasz Kamienski, The Drugs That Built a Super Soldier, THE ATLANTIC (Apr. 8, 2016), https://www.theatlantic.com/health/archive/2016/04/the-drugs-that-built-a-supersoldier/477183/.

17 Jonathan S. Jones, The “Great Risk” of “Opium Eating”: How Civil War-Era Doctors Reacted to Prescription Opioid Addiction, YALE U. HARVEY CUSHING/J OHN HAY WHITNEY MED. LIBR. (Dec. 1, 2020), https://library.medicine.yale.edu/blog/great-risk-opium-eating-how-civil-war-eradoctors-reacted-prescription-opioid-addiction.

18 Martine Van Puyvelde et al., A State-of-the-Art Review on the Use of Modafinil as A Performanceenhancing Drug in the Context of Military Operationality, 187 MIL. MED. 1286, 1286–87 (2022).

19 Elise Donovan, Propranolol Use in the Prevention and Treatment of Posttraumatic Stress Disorder in Military Veterans: Forgetting Therapy Revisited, 53 P ERS. IN BIOLOGY & MED. 61, 63-64 (2010).

20 BICKFORD, supra note 2, at 111.

UCLA UNDERGRADUATE LAW JOURNAL

21 Writing in Chemical Heroes: Pharmacological Super Soldiers in the US Military, author Andrew Bickford argues that Sulzberger’s paper marked the first major step in militarizing biotechnological research.22 The core principles of Sulzberger! s paper have influenced the focus of current research conducted by the Defense Advanced Research Projects Agency (DARPA) such as the “Augmented Cognition” program,23 the “ADvanced Acclimation and Protection Tool for Environmental Readiness” (ADAPTER) program,24 and the “Inner Armor” program.25 Moreover, DARPA has transplanted these principles into new areas of research through programs such as “Detect It with Gene Editing Technologies” (DIGET) 26 and “PReemptive Expression of Protective Alleles and Response Elements” (PREPARE).27 With the recent budget increase of $30.7 billion for the Department of Defense, newer and more advanced projects are inevitable.28 These projects must be properly regulated in order to ensure the future of all parties involved.

medical means.”

21 Id. at 118.

22 Id. at 112.

23 Dylan Schmorrow & Amy A. Kruse, DARPA’s Augmented Cognition Program - Tomorrow’s Human Computer Interaction from Vision to Reality: Building Cognitively Aware Computational Systems, in PROCEEDINGS OF THE IEEE 7TH CONFERENCE ON HUMAN FACTORS AND POWER PLANTS 7, 7 (J. J. Persensky, Brue Hallbert, & Harold Blackman eds., 2002).

24 Christopher Bettinger, ADvanced Acclimation and Protection Tool for Environmental Readiness (ADAPTER), DEF . ADVANCED R SCH. PROJECTS AGENCY, https://www.darpa.mil/program/advanced-acclimation-and-protection-tool-for-environmentalreadiness (last visited Apr. 8, 2023).

25 BICKFORD, supra note 2, at 7–8.

26 Jean-Paul Chretien, Detect It with Gene Editing Technologies (DIGET), DEF. ADVANCED RSCH. PROJECTS AGENCY, https://www.darpa.mil/program/detect -it-with-gene-editing-technologies (last visited Apr. 8, 2023).

27 Amy Jenkins, PReemptive Expression of Protective Alleles and Response Elements (PREPARE) , DEF . ADVANCED R SCH. P ROJECTS A GENCY, https://www.darpa.mil/program/preemptiveexpression-of-protective-alleles-and-response-elements (last visited Apr. 8, 2023).

28 Press Release, U.S. Dep’t of Def., The Department of Defense Releases the President’s Fiscal Year 2023 Defense Budget (Mar. 28, 2022),

https://www.defense.gov/News/Releases/Release/Article/2980014/the-department-ofdefense-releases-the-presidents-fiscal-year-2023-defense-budg/.

SOVEREIGN IMMUNITY

II. Legal and Legislative History

A. Contextualizing the Federal Torts Claims Act (FTCA)

Before the FTCA, Congress used a system of private bills to address tort claims against the U.S., which led to relatively broad protections for the government’s sovereign immunity.29 Though sovereign immunity was and still is essential to the U.S. government’s ability to carry out the duties and responsibilities given to it by its citizens, it can also hinder the pursuit of judicial justice when government employees are harming citizens.30 This issue is especially concerning considering the degree of power given to federal officials over the course of their duties and their liability to commit torts similar to other private individuals.31

Alongside a desire to change the biased and inefficient system of private bills, Congress addressed these issues by passing the FTCA in 1946. The FTCA typically provides monetary compensation where the government “recognizes a liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties” and that the “United States is liable to the same extent an individual would be in similar circumstances.”32 There are twelve exceptions to this liability, but only two are important to this particular article: Exception A, known as the Discretionary Function Exception, and Exception J. Exception A removes the government’s liability in instances where damages resulted from an employee’s judgment in carrying out duties allotted to them by the government.33 This function was added to protect the discretion of employees and prevent courts from passing judgments on questions of policy reserved for the other branches. Exception J removes the U.S. government’s liability in damages “arising out of the combatant activities of the military or

29 J ONATHAN M. GAFFNEY, CONG . RSCH. SERV., R45732, THE FEDERAL TORT CLAIMS A CT (FTCA): A LEGAL OVERVIEW (2019).

30 Gregory C. Sisk, The Inevitability of Federal Sovereign Immunity, 55 VILL . L. R EV. 899, 904–5 (2010).

31 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390–93 (1971).

32 28 U.S.C. § 2672.

33 28 U.S.C. § 2680.

naval forces, or the Coast Guard, during time of war.” 34 This exception would become important in Supreme Court decisions regarding FTCA claims and military personnel. However, FTCA claims are not the only remedy available to those that have been damaged by the negligence of a federal employee or other military personnel.

B. Bivens-Type Remedies

Unlike an FTCA claim, Bivens-type remedies allow an individual to directly sue federal employees for the violation of their constitutional rights. In Bivens v. Six Unknown Agents , Webster Bivens was arrested without a warrant and subjected to unwarranted searches of his home and seizures of his property by a group of agents from the Federal Bureau of Narcotics.35 Bivens claimed that his Fourth Amendment rights had been violated and sued the agents in a federal district court, which dismissed his claim because it failed to state a federal cause of action.36 The Second Circuit District Court of Appeals upheld this dismissal, but the Supreme Court granted certiorari on the grounds of determining whether such claims could be brought to court in the first place.37 The Court argued that individual federal employees ought to be held liable in the same manner as private citizens when they violate another person’s constitutional rights regardless of what state the violation occurred in, the status of the individual as a federal employee, and the remedial mechanism in place for the violation.38 The plaintiff’s victory in Bivens was initially situated within the context of a private citizen having their constitutional rights violated by a federal officer.39 Compared to FTCA claims, Bivens claims act as far more of a deterrent to misconduct because they are leveled at individuals or groups of federal employees rather than the United States. Recently, the Court has expanded immunities to Bivens-claims and shown increasing hostility towards Bivens suits

34 Id.

35 Bivens , 403 U.S. at 389–90.

36 Id. at 390–92.

37 Id. at 392–95.

38 Id. at 394–97.

39 Id. at 392–94.

because of how they affect government discretion and impact the government’s treasuries.40 However, scholars have questioned this characterization of Bivensremedies due to the scarcity of available remedies for constitutional rights violations committed by federal employees and the mild economic impact on the U.S. Treasury.41 Regardless of who pays, Bivens-claims still play an important role in discouraging the misconduct of federal employees through reputational impact and general deterrence.

C. The Development of the Feres Doctrine

Shortly after the passage of the FTCA, the Supreme Court would pass judgment on the relationship between FTCA claims and military personnel in Brooks v. United States. This case revolved around two off-duty soldiers, Arthur and Welker Brooks, who, along with their father, James Brooks, were struck by an Army truck while driving and subsequently killed.42 As a result, an FTCA claim was filed against the United States due to the truck driver’s negligence. The claim was initially dismissed by the district court but was later upheld by both the Fourth Circuit Court of Appeals and the Supreme Court because none of the FTCA’s twelve exceptions barred claims from soldiers who were not on active duty at the time of the damage.43 The Court’s opinion noted that “[i]t would be absurd to believe that Congress did not have the servicemen in mind in 1946, when this statute was passed.” 44 Its opinion also acknowledged several potential issues with future FTCA claims involving military personnel such as whether double recovery should be allowed under the FTCA and the Veterans Benefits Act (VBA) and whether Congress intended to permit compensation for injuries incident to service under the FTCA.45

The Court would resolve these issues when it decided Feres v. United States , which consisted of three FTCA claims where military personnel were on non -

40 James E. Pfander et al., The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 STAN. L. REV. 561, 561 (2020).

41 Id. at 566–68.

42 Brooks v. United States, 337 U.S. 49 (1949).

43 Id. at 919-920.

44 Id. at 919.

45 Id. at 920-921

combative active duty.46 These claims included a soldier who perished in a fire that occurred in a barracks known to have a defective heating plan (Feres v. United States) , a soldier damaged by an army surgeon’s medical malpractice (Jefferson v. United States ), and another soldier who died from unskilled medical treatment (Griggs v. United States) 47 Since there was no legislature outlining how to determine these FTCA claims made by noncombatant active-duty service members, the Court decided to bar claims incident to service because of opportunities for double recovery under both FTCA claims and Veterans Benefits Administration (VBA) claims, potential intrusions into military decision-making, and the unique federal relationship between the government and its soldiers.48 These concerns would become the basis of the original three rationales of the Feres doctrine: the opportunity for double recovery under FTCA claims and other compensatory acts of legislature,49 the absence of analogous private liability,50 and the distinctly federal relationship between the government and its soldiers.51

During the latter half of the 1950s, the rationales of the Feres doctrine would be reworked by the Court. In United States v. Brown, a veteran sued a Veterans Administration Hospital for medical negligence in the treatment of an injury sustained during active duty.52 In order to further clarify which claims are subject to the Feres doctrine, the Court would add a fourth rationale that barred FTCA claims if they interfered with the special relationship between the soldier and his superior.53 The Court would also reject the private parallel liability rationale during this time as shown by its decisions in Indian Towing Company v. United States , which involved damages resulting from the Coast Guard’s

46 Feres v. United States, 340 U.S. 135, 156–57 (1950).

47 Id. at 156. See Feres v. United States, 177 F.2d 535 (2d Cir. 1949); Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949); Griggs v. United States, 178 F.2d 1 (10th Cir. 1949).

48 Feres , 340 U.S. at 156.

49 Id. at 158–59.

50 Id. at 157–59. Analogous private liability refers to the FTCA’s statement that the United States is liable “in the same manner and to the same extent as a private individual under like circumstances” for negligent actions. Since no private individual can raise or maintain an army, the Feres Court believed the FTCA was inapplicable to cases involving the military’s negligence. Thus, they argued that FTCA claims should be barred from being filed against the military.

51 Id. at 158–59.

52 United States v. Brown, 348 U.S. 110, 111–12 (1954).

53 Ibid.

MILITARY RESEARCH AND SOVEREIGN IMMUNITY

improper operation of a lighthouse,54 and Rayonier v. United States, which was centered on damages resulting from government employees starting a forest fire.55 In both cases, the Court ruled that parallel private liability was applicable in instances where " a private person would be responsible for similar negligence under the laws of the State where the acts occurred.”56 Thus, the Court no longer considered the parallel private liability rationale to be relevant towards the applicability of the Feres doctrine provided that the individual had a colorable FTCA claim under state law. Regardless of their relevance to the current state of the military, the Court’s decision in Feres would be used to bar FTCA claims for decades to come.

D. The Broadening Application of the Feres Doctrine before Stanley

Since its inception, the Feres doctrine has only been expanded in terms of its rationales and its application to novel cases concerning damages incident to service. In doing so, the Supreme Court has circumvented the original purposes of the FTCA and Bivens remedies, which were meant to provide compensation for victims damaged by the negligence of federal employees. In Chappell v. Wallace, five enlisted men in the Navy brought claims against eight of their commanding officers for making racially discriminatory decisions against them.57 The case was initially dismissed by the district court on the grounds that the claims were related to “nonreviewable military decisions, that petitioners were entitled to immunity, and that respondents had failed to exhaust their administrative remedies.”58 While the case was appealed and damages were awarded to the plaintiff by the Ninth Circuit Court of Appeals, its decision was reversed by the Supreme Court when it granted certiorari. 59 The Supreme Court was mainly concerned with preventing courts from impeding military decisionmaking and officer/subordinate relationships.60 Thus, it used the Feres doctrine

54 Indian Towing Co. v. United States, 350 U.S. 61, 123 (1955).

55 Rayonier v. United States, 352 U.S. 315, 315–16 (1947).

56 Id. at 319.

57 Chappell v. Wallace, 462 U.S. 296 (1983).

58 Id. at 298.

59 Id. at 298–99.

60 Id. at 300–2.

to guide the “special factors counseling hesitation” test, barring Bivens-type remedies from proceeding because of the broad protections it offers to members of the military who are acting at their own discretion.61 The Chappell decision would be instrumental in deciding the results of Stanley v. United States

E. The Feres Doctrine & Stanley

After having his initial FTCA claim thrown out because his participation in the research trials was incident to service, James B. Stanley would proceed with a Bivens-type remedy against the government officials who administered LSD to him.62 His petition argued that the remedy was filed against military personnel who were not his superior officers and that the nature of the research program prohibited it from being “incident to service.”63 The Court decided that his second argument did not hold because his FTCA claim had already been barred and the Court saw no reason to revisit that issuance.64 Regarding his Bivens claim, the Court reaffirmed its use of the Feres doctrine in Chappell as the standard of analysis.65 Since Feres does not consider the officer-subordinate to be important in categorizing “incidents to service,” the Court ruled against Stanley’s Bivens claim.66 Moreover, it argued that the non -specificity of the Feres doctrine is important to guiding the denial of Stanley’s Bivens claim because it does not intrude on Congress’ authority to maintain the military and prevents courts from making policy judgments, rather than legal ones.67 Considering these rationales, the Court would hold in Stanley that no Bivens remedies are available for damages “incident to service” regardless of the officer-subordinate relationship.68

61 Id. at 298–99.

62 Stanley v. United States, 483 U.S. 669 (1987).

63 Id. at 674–76.

64 Id. at 677.

65 Id. at 680.

66 Id. at 681.

67 Id. at 682–83.

68 Id. at 683–84.

F. The Government Contractor Defense

Beyond matters of public discretion, the Court has also constructed a legal framework governing the use of private discretion in government-contracted biotechnological military research. In 2021, the Department of Defense (DOD) spent $408.8 billion USD on defense contracts for various services such as repairs, technology assistance, and pharmaceutical drugs.69 DARPA, the DOD’s top research department, often employs government contractors to assist its research mission.70 All of these government contractors have been granted immunity against lawsuits involving damages caused by their products or services because of the government contractor defense.

In Boyle v. United Technologies Corp., a U.S. Marine helicopter pilot, David A. Boyle, was killed in the course of piloting a CH-35D helicopter during a training exercise.71 Though he survived the initial helicopter crash, which was allegedly caused as a result of a faulty repair to the flight controls, he ended up drowning because of an allegedly defective escape hatch.72 Both defections were attributed to the Sikorsky Division of the United Technologies Corporation for the United States.73 Although the initial diversity action against Sikorsky succeeded in the district court, the Fourth Circuit Court of Appeals denied it because of Virginia state law pertaining to the nature of the repairs to the helicopter’s flight system and Sikorsky’s protection under the government contractor defense.74 The petitioner appealed this decision by claiming the government contractor defense had no justification in federal law and if it did exist, it would not be applicable to Boyle’s case.75 In order to clear up the legal ambiguity regarding the government contractor defense and its applicability, the Supreme Court granted certiorari for Boyle’s case.

69 2022-2023 Defense Budget Breakdown, BLOOMBERG GOV ’T, https://about.bgov.com/defensebudget-breakdown/ (last visited Apr. 8, 2023).

70 Contract Management, DEF . ADVANCED RSCH. PROJECTS A GENCY, https://www.darpa.mil/work-with-us/contract-management (last visited Apr. 8, 2023).

71 Boyle v. United Techs. Corp., 487 U.S. 500 (1988).

72 Id. at 502.

73 Id. at 503.

74 Id. at 503.

75 Id. at 503.

The Court first began by ruling that federal law would displace state law in this instance because government contracts are directly related to federal interests.76 In disputing whether the defense could be properly applied, the Court did not agree with the Fourth Circuit Court of Appeal’s use of the FTCA to bar Boyle’s claim because it could be used too broadly (e.g. to bar all claims against government contractors regardless of whether they were incident to service), or it could be used too narrowly (e.g. not barring any superfluous claims made by civilians against the military for a product or service provided by a government contractor).77 Rather, the Court turned to the FTCA’s Discretionary Function Exception to define and justify the principles of the government contractor defense which are listed as follows: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.”78 Since the circumstances of Boyle’s damages fell under these rationales, the Court remanded the case with a note to the Court of Appeals to conduct a proper sufficiency-of-the-evidence determination for a final ruling.79

III. Legal Arguments

A. Analyzing the Rationales Behind the Feres Doctrine in the Context of Military Research

In cases concerning biotechnological military research, the Feres doctrine is the main obstacle towards compensating military personnel and deterring future damages from being committed. This can be attributed to its three primary rationales: the distinctly federal relationship between the government and military personnel, the availability of double compensation, and the possibility

76 Id. at 504–5.

77 Id. at 510–11.

78 Id. at 512.

79 Id. at 514.

MILITARY RESEARCH AND SOVEREIGN IMMUNITY

of interfering with the unique military disciplinary structure. While the discretion of the U.S. military ought to be protected as essential for carrying out its functions with efficiency, this protection has oftentimes come at the cost of relegating military personnel to a second-class status regarding individual damages and protecting the individuals that have damaged them. This cost will only rise as the ambitious goals of the military’s current biotechnological research become reality. When considering the potential impacts of the Feres doctrine on biotechnological military research, it is difficult to ignore the dangers created by the doctrine’s archaic understanding of the military and its broad applicability.

1. The Distinctly Federal Relationship Between the Government and the Members of its Armed Forces

On its own, the first rationale of the Feres doctrine is not inherently an obstacle to the pursuit of compensation or deterrence for damages caused by military biotechnological research. It simply states that the relationship between the government and the military necessarily places the actions of its members within federal, rather than state, jurisdiction.80 However, when placed within the framework of the Feres doctrine, it becomes a way to universally bar FTCA and Bivens claims and prevent plaintiffs from ever receiving justice. That the relationship between the government and the soldier can be categorized as federal is undeniable and certainly overrides the application of state tort law that would normally apply if this relationship was absent.81 However, whether this relationship should be the reason that a Bivens or FTCA claim is barred from being awarded in either civilian or military courts is unclear. By making an indirect policy judgment on this issue, the Court has answered questions beyond its powers and prevented military personnel from receiving any type of compensation whether through federal or state means. Moreover, this rationale has indirectly created a universal exception to any deterrents regulating human

80 Feres v. United States, 340 U.S. 135, 158 –60 (1950).

81 Andrew F. Popper, Rethinking Feres: Granting Access to Justice for Service Members , 60 B.C. L. REV. 1491, 1528–30 (2019)

experimentation in state laws without providing alternative federal deterrents to replace them.82 While problematic, removing this rationale could severely hinder a soldier ! s ability to receive any compensation at all, especially since damages resulting from biotechnological research are likely to lie outside of a state! s compensation schemes. Instead, this rationale should be kept under the condition that the other rationales are altered to fill the current gaps in compensation and deterrence resulting from the removal of state jurisdiction.

2. The Availability of Double Compensation

In addition to assumptions of congressional intent, the second rationale of the Feres doctrine also suffers from being outdated since it was based on compensation schemes from the mid-twentieth century. Regarding congressional intent, the FTCA does not explicitly bar the opportunity for double recovery if a member of the military can also receive compensation under legislation such as the Veterans Benefits Act.83 Thus, the second rationale has no basis in congressional intent and is one of the particularly egregious examples of the Feres Court acting as legislators.

Additionally, the Feres Court reasoned that it would be better for military personnel to recover under such acts because they would be efficiently compensated for their damages. It also assumed that military work-related compensation was a better method of receiving compensation compared to FTCA claims. Unfortunately, the reality of today’s compensation schemes is far different. The process of filing a claim and receiving service from the VBA is notoriously difficult and slow, especially since the COVID-19 pandemic began.84 Since most claims consider the complexity of the injury, claims involving harm suffered from military research could take far longer to be ruled on, as the injuries suffered may not currently exist under compensation schemes.85 Another issue with current compensation schemes is the lack of consideration

82 Cal. Health & Safety Code § 24170–24179.5.

83 Brou, supra note 9.

84 The VA claim process after you file your claim, U.S. DEP’ T OF VETERANS A FF. (Feb. 9, 2023), https://www.va.gov/disability/after-you-file-claim/.

85 Brou, supra note 9.

given to non -economic damages, such as emotional distress, or the effects of the soldier’s death on their family.86 In the case of soldier enhancement, these factors may be far m ore diverse or severe than what current compensatory schemes are equipped to handle. Finally, the Feres Court’s statement regarding the favorability of military work-related compensation versus workers ! compensation simply does not hold true because military healthcare and compensation are far broader than that of worker’s compensation in terms of coverage.87 Considering the following arguments, it is apparent that this rationale is based on a faulty understanding of veteran compensation schemes and is long overdue for removal because it has not been adapted to current compensation schemes. By removing this rationale, military personnel will become one step closer to receiving compensation for the damages they have suffered.

3. Interference in the Military Disciplinary Structure

Of all the rationales cited in the Feres doctrine, the “incident to service” rationale is often considered to be the most egregious and therefore the subject of constant debate. Indeed, the arguments given by the “incident to service” test’s proponents hold a certain degree of validity. Indeed, military disciplinary structures need to be preserved for the military to function correctly and to ensure that the careful system of checks and balances between government branches is adequately maintained.88 On the battlefield, these concerns are especially important because they prevent officers from being second-guessed or disobeyed when giving orders.89 However, while these points are cause for concern, they are unwarranted in cases such as Stanley’s since he was not receiving orders from a commanding officer.90 Moreover, these points are not fully relevant because they have already been addressed by Exception J of the FTCA, which prevents FTCA claims from proceeding if they have resulted

86 Id. at 62–63.

87 Id. at 65 –67.

88 Feres v. United States, 340 U.S. 135 (1950).

89 Brou, supra note 9.

90 Stanley v. United States, 483 U.S. 669 (1987).

from active combat. The instances of negligence discussed thus far have resulted from the extraneous duties the military performs by offering a bevy of medical and legal services that it could be held liable for, similar to a private citizen.91

One still might argue that, while Stanley’s case was not directly related to the military disciplinary structure, it can still affect the military’s abilities and efficacy, which strays into policy judgments reserved for Congress. This argument fails on two fronts. First, holding military officials accountable for their actions has a precedent in federal common law, as noted by Justice Brennan’s dissenting opinion in Stanley 92 Second, this argument also ignores how this issue resulted from the Court appropriating judgments reserved for Congress and creating an inequality in the system of checks and balances. Regarding Bivens-remedies, the human consequences of taking such a cautious approach far outweigh the benefits attributed to the incident-to-service tests. By barring individuals from being held accountable for human experimentation, unconstitutional human experimentation will remain unaddressed and eventually be forgotten because those damaged are unable to bring any claims forward.93 As stated previously, this lack of regulation will become more dangerous as biological experimentation continues to progress and participants in said research are reintegrated into society. If these are the consequences of the “incident to service” test, then the reformation of the Feres doctrine or even the creation of an alternative approach should be seriously considered.

B. The Varig Test as an Alternative to the Feres Doctrine

Based on the above analyses, the Feres doctrine needs to be both revised and updated in order to provide the military with a healthy degree of discretion without diminishing the rights of its soldiers. Yet, this may only serve to put a bandage on a legal bullet wound. Other scholars have suggested that the Supreme Court should look towards other parts of the FTCA in order to determine the validity of the “incident to service” test such as the Discretionary

91 Brou, supra note 9.

92 Stanley, 483 U.S. 669.

93 Brou, supra note 9, at 75–91.

Function Exception (DFE).94 These scholars have often cited United States v. Varig Airlines because of the two-part test that the Court used to determine the validity of FTCA claims against the Federal Aviation Administration (FAA) resulting from its negligent certification of airplanes.95 First, the Court focused on determining whether the FAA had the discretion to perform the action that resulted in negligent damages.96 Then, it focused on determining whether Congress intended to protect the conduct of the actor and the potential policy considerations that would bar the Court from considering the claim.97 By using this test instead of the Feres doctrine, the Court can maintain the systems of checks and balances without doing so at the expense of military personnel.

1. Applying the Varig Test to Stanley

Applying this alternative approach to Stanley reveals how the two-part test used in Varig can assuage the Court’s fears of being overly involved in military operations without preventing the opportunity for compensation and deterrence in cases such as Stanley . Since Congress authorized the military to conduct research through its decisions concerning the defense budget, neither of Stanley’s claims would avoid falling under the first part of the Varig test. However, the second part is unlikely to bar his claims because of both congressional ambiguity and the unlikelihood that Congress intended to protect such actions from being committed. For his FTCA claim, it is unlikely that Congress had intended to bar his claim because it did not explicitly do so in the original writing of the FTCA, nor did it authorize involuntary consent in human experimentation at the time of Stanley’s trial. Regarding his Bivens-remedy, it is almost certain that Congress would never intend to allow a direct violation of one’s constitutional rights. By using the Varig test to determine the validity of military research tort claims, the unique disciplinary hierarchy of the military

94 Brou, supra note 9, at 91–92.

95 United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 799–800 (1984).

96 Id. at 814–15.

97 Id. at 819–21.

can be maintained without judicial oversight, while specific claims similar to Stanley’s can proceed. While the clarification and reformation of the Feres doctrine or the development of alternative doctrines may deter federal employees from causing or pursuing research endeavors that are prone to causing damages, it cannot stop government contractors from doing the same thing.

C. Analyzing the Rationales Behind the Government Contractor Defense

Despite increased funding and rapid progress in recent years, governmentcontracted biotechnological military research still exists within a framework whose benefits far outweigh its costs. The broad discretions created by the government contractor defense has allowed government contractors to focus more on raising profit margins rather than serving public interest.

The first two rationales of the government contractor defense allow government contractors to manufacture products at their own discretion as long as the products are “reasonably precise” to the approved specifications given by the United States.98 The ambiguity of this wording would only be warranted if there was a government official overseeing the production or service of them to the degree noted in Yearsley v. W. A. Ross Construction Co. 99 In this case, the Court extended protection from liability to the work of a government contractor who, with the oversight of a Government Engineer, had precisely followed the specifications given to them by said engineer.100 Compared to the Sikorsky Division, which repaired equipment that resulted in the tragic death of David A. Boyle, this government contractor had significantly less discretion in meeting the terms of its contract. Nowadays, the protection offered to government contractors is especially concerning because of the dual-use technologies that may have originally been contracted for the military but end up being used in civilian contexts as well.101 Not only is a soldier barred from receiving

98 Boyle v. United Tech. Corp., 487 U.S. 500 (1988).

99 Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 19 (1940).

100 Id. at 20–21.

101 What are Dual-Use Goods?, DOW J ONES, https://www.dowjones.com/professional/risk/glossary/dual-use-goods-

compensation for the negligence of a private company, but so is a civilian in such cases.

The third rationale for this ruling is likewise difficult to fully apply to military research, especially biological and pharmaceutical research, because of the magnitude of the search and its potential long-term effects on the individual’s utilizing it. With the enhancement of soldiers, fully grasping the extent of what harm may befall the soldier as a result of products developed by government contractors will prove extremely difficult, especially during their reintegration into society. This rationale is supposed to allow contractors to divulge potential risks without fear of liability, but it does not account for risks that were unknown to the contractor.102 Moreover, its lack of enforceability grants contractors the freedom to choose what risks they want to disclose.

Ultimately, these issues can be resolved by overturning the Boyle ruling entirely and removing the legal precedent set by the government contractor defense, or by revisiting the ruling to create better legal specifications for determining what government contracts should be exempt from liability. Similar to the Feres doctrine, discussion of the government contractor’s rationales lends more weight to the words of both Justices Brennan and Stevens: the function of determining how to weigh the considerations of liability and sovereign immunity is “more appropriately for those who write the laws, rather than for those who interpret them.”103

IV. Policy Recommendations

Throughout the analysis of legal rationales, it has become clear that the Court has overstepped the powers afforded to it by the systems of checks and balances, resulting in disastrous consequences for the soldier. This section proposes the required legislation for preventing more judicial oversteps and clearing the legal ambiguity surrounding the Feres doctrine and the government

definition/#:~:text=Dual%2Duse%20goods%20are%20items,or%20worse%2C%20used%20for%20t errorism (last visited Apr. 8, 2023).

102 Boyle, 487 U.S. 500.

103 Id. at 532.

contractor defense. It will also propose guidelines for regulating current research efforts and providing deterrents against research-related damages.

A. The Feres Doctrine

While the rationales of the Feres doctrine can be changed or restated by the Supreme Court, the legislative impetus to do so is absent. This is why the Feres doctrine, despite its many detractors, has remained federal common law since the mid-twentieth century.104 Though Congress has indeed passed bills that allow for military personnel to recover for damages created by medical malpractice (e.g. the Richard Stayskal Military Medical Accountability Act of 2019), it has yet to address the issue of damages sustained from military research without the help of the flawed private bill system, which allowed Stanley to eventually recover.105 Regarding Bivens-remedies, Congress also needs to decide how the constitutional rights of soldiers should be protected in cases involving military research, especially since Bivens-remedies act as far more substantial deterrents than FTCA claims. By focusing on resolving issues with congressional intent and policy judgments, the protection offered to tomorrow’s soldiers will become worthy of their service to this country.

B. The Government Contractor Defense

Similar to the Feres doctrine, the Court’s upholding of the government contractor defense is predicated upon legislative ambiguity, especially on all of the policy judgments that were part of the original ruling. The question of how to properly monitor the development of products resulting from defense contractor research, whether through the creation of a monitoring agency or additional requirements for the purchasing of a company’s product, needs to be decided for the health and safety of civilians and military personnel alike. Before the government contractor defense is used to bar any more damages and dual-

104 Maximillian Potter, The Feres Doctrine: The Fight to End a Systemic Miscarriage of Military Justice, VANITY FAIR (Nov. 10, 2022), https://www.vanityfair.com/news/2022/11/the-feresdoctrine-the-fight-to-end-a-systemic-miscarriage-of-military-justice.

105 Military Medical Accountability Act, H.R. 2422, 116th Cong. § 2 (2019) (introduced).

use technologies advance beyond the scope of the legislation, Congress should consider Justice Brennan’s advice:

Were I a legislator, I would probably vote against any law absolving multibillion dollar private enterprises from answering for their tragic mistakes, at least if that law were justified by no more than the unsupported speculation that their liability might ultimately burden the United States Treasury.106

C. Regulating Military Research

Besides reforming the current legislative framework surrounding biotechnological military research, additional legislation will be needed in order to deter future damages resulting from human experimentation. One document that Congress should turn to when considering new legislation is the Belmont Report, which discusses important considerations for ethical human experimentation such as informed consent, the assessment of risks and benefits, and the selection of subjects.107 Also, the Belmont Report can be used to reevaluate current legislation such as the U.S.C. §1107, which allows the President or Secretary of Defense to bypass the waiver of voluntary consent during drug research.108 Finally, it can be used to identify and resolve potential compensatory gaps regarding damages incurred from participation in military biotechnological research since that the compensation that it currently offers to veterans is not properly calibrated to today’s research. The legislation that is formed or reformed by the Belmont Report will become instrumental in preventing tragedies similar to Stanley .

Conclusion

Both Congress and the Supreme Court have failed to craft an environment that would (1) allow military personnel to be properly compensated for damages

106 Boyle, 487 U.S. at 515 –32.

107 U.S. DEP’T OF HEALTH, E DUCATION, & WELFARE, BELMONT REPORT 4 (1979).

108 10 U.S.C. § 1107.

resulting from military research, and (2) deter the pursuit of research endeavors that could have perverse effects on the lives of the military personnel participating in them. This has created a legal and legislative framework that is prone to abuse, particularly when it comes to matters of human experimentation. Though the United States has condemned the dangerous and unethical consequences of unregulated human experimentation in the past, it has not taken the necessary steps to prevent itself from committing the same mistakes.

As methods of biotechnological warfare and research continue to progress, it is important that the law develops at a comparable speed. The consequences of neglecting to do so will be too great for either Congress or the Court to fully mitigate. Therefore, it is of the utmost importance that both branches of government begin to craft a stronger framework to prevent such consequences from occurring in the first place whilst also compensating the individuals that have already been affected. Federal sovereign immunity should always take a backseat to the protection of those that are meant to be served by it.

UCLA UNDERGRADUATE LAW JOURNAL

Emma Canavan*

The Future of a Gender-Inclusive Birth Registration System in England and Wales in a Post-R (TT) v. Registrar General for England and Wales World

ABSTRACT. The birth registration system in England and Wales is not sufficiently inclusive of families that exist outside the cis-heterosexual model. Under the current legislative regime, parentage will always be initially recorded according to the biological role played by the individual, regardless of their gender identity. Hence, a transgender man who is the child’s gestational parent will be legally recognized as their child’s ‘mother,’ despite fulfilling the role of father in all other regards. Not only do these legal records pose a threat of ‘outing’ the parent - and thereby opening them up to potential discrimination - but also risk exacerbating feelings of genderdysphoria. This article argues that there is a pressing need for reform and considers that the dual implementation of an anonymous births regime, along with genderneutral language to record parentage, would best promote child and parent welfare.

*Emma Canavan is a third-year law student from the UK, currently studying abroad at l’Université de Poitiers, France. In the fall, she will return to Cambridge to complete her degree. She would like to warmly thank her editor Sarah Wang for her incisive and thoughtful comments on earlier drafts. She would also like to extend her thanks to the journal’s executive team for their continued support.

Editor: Sarah Wang is a fourth year Communications student at UCLA from Arcadia, CA. In college, she has worked at TikTok, Warner Bros. Discovery, and UCLA Engineering and will continue pursuing her interest in data privacy, consumer protections, and ethical AI use at Microsoft, and eventually law school, upon graduation. Sarah would like to thank Emma Canavan for her creativity, vision and remarkable dedication to the pursuit of a more equitable future.

Introduction

The current laws on birth registration in England and Wales are not fit for purpose: whilst the current regime accommodates families who fit within the heteronormative model, the interests of others are effectively sidelined. The recent case of R (TT) v. Registrar General for England and Wales has brought to the judicial forefront these realities and paints a worrying picture of the law’s ability and willingness to keep up with the changing face of ‘family’ in modern Britain. There, the High Court held that ‘mother’ is a purely biological term, in assessing whether TT a transgender man could be registered as YY’s ‘father’ despite being the gestational parent.1 In turn, Sir Andrew McFarlane, President of the Family Division of the High Court, elucidated the current starting point that every child be born with a legal mother: a position found to be justified on the grounds of the best interests of the child (YY), as well as the supposed need to ensure administrative coherency within the registration system. However, the result is that the law facilitates an uneasy disjunct between the law and daily reality for transgender parents. Whilst McConnell may be known legally as his child’s ‘mother,’ the child will only ever socially recognize him as their ‘father.’

The purpose of this article is to outline, and advocate for, a potential model of reform that would help remedy current systemic inadequacies. Here, the proposed suggestions are twofold: first, that there would no longer be a legal requirement that every child have a mother initially registered on the birth certificate thereby introducing an anonymous births regime. Second, that documentation of parentage would henceforth be under the gender-neutral term of “parent.” In doing so, not only would the law in England and Wales better protect the rights and interests of transgender and non-binary parents, but also better reflect modern reproductive technologies such as surrogacy.2 Moreover, this article demonstrates how reforming the birth registration model would not infringe upon the child’s welfare, as President McFarlane had feared, but may

1 R (TT) v. Registrar General for England & Wales [2019] EWHC 2384 (Fam), [2020] Fam 451 (McFarlane, P.) (Eng.).

2 Such arrangements open up the possibility of ‘three parent’ families: a set-up hitherto not afforded legal protection.

THE FUTURE OF A GENDER-INCLUSIVE BIRTH REGISTRATION SYSTEM

rather serve to promote it. Moving towards a contemporary birth registration system in this way is crucial to advancing both child and parent welfare in England and Wales.

I. An Overview of R (TT) v. Registrar General for England and Wales

Firstly, it is helpful to outline the pertinent case of R (on the application of TT) v Registrar General for England and Wales, which has brought to the forefront the critical issues within the current birth registration model.3 The applicant Freddy McConnell (TT) was registered at birth as a female, but later transitioned to the male gender and was issued a Gender Recognition Certificate confirming as much. At that time, he became pregnant after undergoing fertility treatment and gave birth to a child: YY. However, he learned upon registering the birth that his parentage would not be recorded on the birth certificate as ‘father’ or ‘parent’ as he intended, but rather as YY’s ‘mother.’ He challenged this procedure in the High Court, where it fell to President McFarlane to determine the common law meaning of ‘mother,’ where McFarlane ultimately concluded that this was a question of biology divorced from questions of gender or the parent-child’s lived social relationship. In turn, it was held that ‘mother’ denoted the gestational parent: namely the person who carried and gave birth to the child. Whilst President McFarlane conceded that TT’s registration as ‘mother’ constituted a violation of the applicant’s right to respect for private and family life under the HRA 1998, he found that this interference was “very substantially outweighed” by the interests of society.4 More specifically, he emphasized the need to provide an administratively coherent birth registration regime and to promote the child’s interests through affording them certainty over their parentage and origins. The ruling was later upheld by the Court of Appeal5 and serves as a critical illustration of the pressing need to ensure the modernization of the birth registration system.

3 Explanation of the facts here are drawn from the comprehensive case note by Claire FentonGlynn, Deconstructing Parenthood: What Makes a “Mother”?, 79 CAMBRIDGE L.J. 33, 37 (2020).

4 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), at [272] (McFarlane, P.).

5 R (TT) v. Registrar General for England & Wales (AIRE Centre intervening) [2020] EWCA Civ 559, [2021] Fam 77 (Eng.). The Supreme Court denied appellants application to appeal, see R

II. The Inadequacies of the Current Regime

The first shortfall of the current regime is the legal requirement that every child in England and Wales be born with a legal ‘mother’: a label attributed to the gestational parent of the child.6 This position is problematic from three perspectives.

Firstly, the case of R(TT) highlights the system’s marginalizing effect on transgender parents by viewing motherhood through a purely biological lens and failing to adequately recognize its day-to-day use as a gendered term.7 As such, the gestational parent will be chained to the title of ‘mother’, regardless of whether this accords with the social reality of their parenthood.8 Notably, this legal position may have an aggravating effect on the individual’s gender dysphoria, thereby creating a tension that could have consequential harmful effects on the welfare of the child.9

Secondly, the requirement of a ‘mother’ further cements the “dimorphous” nature of parenthood, with parenthood shared exclusively between the ‘mother’ and ‘father’ of the child.10 Note, for example, that the law refuses to recognize the possibility of two legal mothers; instead, the partner of the gestational parent will be referred to as the child’s second female parent.11 More broadly, this has locked out the potential for three-parent families to be recognized in English and Welsh law: families for whom the legal recognition of two parents is not reflective of the child’s lived reality.12 For instance, those who

(McConnell) v. Registrar General for England & Wales (AIRE Centre intervening) [2021] 1 WLR 684 (SC) (appeal taken from Eng.) (UK).

6 See, e.g., Russell v. Russell (The Ampthill Peerage) [1977] 1 AC 547 (HL) 577 (Lord Simon of Glaisdale) (appeal taken from Eng.) (UK); R (TT) v. Registrar General [2019] EWHC 2384 (Fam), at [266] (McFarlane, P.).

7 Liam Davis, Re TT and YY: when a ‘Father’ is a ‘Mother,’ PROGRESS EDUC TRUST (Oct 7, 2019), https://www.progress.org.uk/re-tt-and-yy-when-a-father-is-a-mother/.

8 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), at 135 (McFarlane, P.).

9 See, e.g., id. at [59]–[60] (discussing the evidence submitted by psychologist Clare Brooks).

10 Julie McCandless & Sally Sheldon, The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form, 73 MOD L. REV 175, 187 (2010).

11 Id. at 188 (on the legal framework for artificial reproduction).

12 Andrew Bainham, Arguments About Parentage, 67 CAMBRIDGE L.J. 345 (2008).

THE FUTURE OF A GENDER-INCLUSIVE BIRTH REGISTRATION SYSTEM

become parents with the support of a surrogate and/or those parenting within the context of a blended family.13

Finally, the initial requirement of a legal mother is in contrast to the legal position of the child’s biological father. Here, there is a manifest inconsistency in that whilst the biological mother need always be registered on the birth certificate, the law does not similarly demand that the biological father be recorded. The implied social impact is that men have greater freedoms to reject the responsibilities of parenthood, in a way that a woman cannot initially do. 14

Indeed, it is curious that whilst the law emphasizes the importance of biology in relation to parentage, through viewing ‘mother’ as an indispensable legal relationship at birth, the same approach is not applied to the father despite their gametes being equally instrumental to reproduction.

The second shortfall of the birth registration system is its narrow approach to the question of child welfare. President McFarlane’s approach to the child’s ‘best interests’ in R (TT) is indicative of a rigid over-cautiousness which rejects the flexibility of a child’s substantive interests.15 Despite submitted clinical evidence to the contrary, the judge found that the child’s welfare was a strong policy factor pulling away from allowing the applicant to be registered as the child’s ‘father’ rather than ‘mother’. Concerned that YY would be in an isolated legal position, it remained to McConnell to face the burden of bearing a legal title incompatible with his sense of self.

The problems identified here are of acute relevance. The latest census results indicate that 262,000 individuals within the United Kingdom identify with a gender different to their sex registered at birth, thus demonstrating that

13 Mallory Ullrich, Tri-Parenting on the Rise: Paving the Way for Tri-Parenting Families to Receive Legal Recognition Through Preconception Agreements, 71 RUTGERS U.L. REV 909, 913–14 (2019).

14 Of course, a woman can decide to give up her child for adoption. However, even when she chooses to pursue this course, there will still be the initial requirement that she is registered as the child’s legal mother. As the law stands, there is no possibility of escaping this starting point, compared to the position of French women, to whom the option of ‘accoucher sous x’ is possible a choice that is discussed later.

15 In summary, President McFarlane saw welfare through the narrow lens of the effect on the child if they were to uniquely not have a registered legal mother at birth. It is argued that a focus on a child’s wider interests would have allowed the applicant’s claim, by recognizing the effect parental welfare has on child well-being.

the number of families with transgender or non-binary parents are growing.16 The inadequacies of the current birth regime are pressing, and it is vital that the law is reformed to better mirror the society it purports to govern.

III. Recommendations for Reform

A. Freedom

from

Registration on a Child’s Birth Certificate

The first recommendation for reform is to remove the requirement that every child be born with a ‘legal mother’ registered on the birth certificate. In turn, this would open up the possibility of an anonymous births regime. Here, the gestational parent would have the express choice of not registering their relationship of parentage to the child, thereby allowing them to relinquish the social and legal implications of parenthood.17 Instead, in the section detailing the child’s parents, the space would simply be marked with an ‘X.’ By eliminating obligatory registration in this way, the regime would allow motherhood to be reconceived as an active and ongoing choice, rather than a tie established merely by the biological process of giving birth.18 In this sense, maternity and motherhood are distinguished.19

The advantages inherent to this proposal are striking in relation to the current manner of recognizing transgender parents. By removing the starting point that all children be registered with a birth mother, transgender and nonbinary parents such as McConnell would no longer be legally required to describe themselves in a way that is contrary to their gender identity. Moreover, removing this tick-box exercise, and revising the status quo, would not

16 Michael Roskams, Gender identity, England and Wales: Census 2021, OFF NAT’L STAT (Jan. 6, 2023), https://www.ons.gov.uk/peoplepopulationandcommunity/ culturalidentity/genderidentity/bulletins/genderidentityenglandandwales/census2021#:~:text= 48%2C000%20(0.10%25)%20identified%20as,%25.

17 A similar opportunity is afforded in the U S through the existence of ‘safe haven’ laws. These allow a mother (or father) to legally surrender their child to the state without identification or prosecution. This helps to save the lives of babies who might otherwise be abandoned in unsafe conditions.

18 Nadine Lefaucheur, The French ‘Tradition’ of Anonymous Birth: The Lines of Argument, 18 INT’L J. L., POL’Y & THE FAM 319, 342 (2004).

19 Jill Marshall, Giving birth but refusing Motherhood: inauthentic choice or self-determining identity?, 4 INT’L J. L. IN CONTEXT 171 (2008).

THE FUTURE OF A GENDER-INCLUSIVE BIRTH REGISTRATION SYSTEM

automatically curtail the child’s welfare in tandem. While some may argue that registering certain children as having never had a legal mother “would mark [them] out from all other children under UK law, [and therefore] must be seen as a detriment and contrary to a child’s best interests,” it is wrong to presume that children like YY would be socially excluded, merely by virtue of never having had a legal mother.20 Although this concern may be legally accurate right at the moment of birth, academics Miles, George and Harris-Short explain that this is incorrect when viewed through a “broader lens.”21 For instance, the severing effect of Section 67(3) of the Adoption and Children Act 2002 means that a child adopted by a single man, or gay male couple, will be recorded as not having a legal mother. 22 This is equally true of when a surrogate mother signs a parentage agreement - thereby forfeiting her parentage rights.23 As such, the position of children like YY would, substantively, not be an isolated one. This suggests that the judge’s reasoning in R (TT) itself, that connection to a legal mother is central to the child’s best interests, constitutes a myopic assessment. Moreover, removing the requirement of a legal mother at birth would not lead to acute administrative difficulties. Of course, the coherence of birth registration is a decisive priority for the Government and must be judicially protected.24 However, this neglects to recognize the successful implementation of anonymous birth models elsewhere, without a corresponding sacrifice in administrative coherence.25 For example, France has provided the right to accoucher sous X since “at least the French revolution”.26 Additionally, similar measures were adopted in Austria in 2002 and helped to reduce the number of neonaticides from 7.2 to 3.1 per 100,000 births.27 In turn, concerns over the

20 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [2020] Fam 451, [258] (McFarlane, P.).

21 JOANNA MILES, ROB GEORGE, & SONIA HARRIS-SHORT, FAMILY LAW: TEXT, CASES AND MATERIALS ch. 10 (4th ed. 2022).

22 The effect is that the parenthood of the birth parents is extinguished: namely that the birth parent will no longer have any legal relation to – or claim over – their biological child. This severing effect is non-revocable – even in the case of mistakes in adoption proceedings. See Adoption and Children Act 2002, c. 38, § 67(3).

23 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), at [54] (McFarlane, P.).

24 Id. at [263]

25 Fenton-Glynn, supra note 3, at 37.

26 Lefaucheur, supra note 18, at 342

27 Chryssa Grylli et al., Anonymous birth law saves babies optimization, sustainability and public awareness, 19 ARCHIVES OF WOMEN’S MENTAL HEALTH 291 (2016).

State’s ability to keep uniform records constitute a non-issue and remain relegated to the pressing need for comprehensive reform. Adequately promoting parents’ and children’s rights in this sphere demands a new and improved system, rather than a piecemeal approach to legislative reform that fails to rectify the foundational issues at play.

1. Weighing the Rights of Gestational Parents and Children

A related issue concerns whether the proposal would unequally balance the rights of mothers and children, with regards to both their rights to respect for private and family life.28 Namely, whether accommodating the mother’s desire to retain her anonymity disproportionately compromises the child’s right to know of their biological origins and heritage. Indeed, this fell to the determination of the European Court of Human Rights (ECtHR) in the seminal case of Odièvre v. France. 29 There, the applicant argued their Article 8 rights had been violated through the anonymity afforded by the State to their mother’s identity, through the implementation of the anonymous births regime. Upon consideration, it the Court’s Grand Chamber found that France had adequately balanced the rights of the child’s interests, taking into account that a valid interest in knowing one's biological identity coexists with the other party’s right to privacy.30 Particularly persuasive to the Court’s ruling was the combined effect of the mother being strongly encouraged to leave non-identifying information about herself, and also her being allowed to change her mind later on and revoke her anonymity.31 By contrast, in the similar case of Godelli v. Italy, the non-revocable nature of the anonymous births procedure proved decisive in the Court’s finding that the respective rights of the birth mother and child had not been adequately balanced.32

28 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8, adopted Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 221 [hereinafter ECHR].

29 Odièvre v France, 2003-III Eur. Ct. H.R. 51.

30 Id. ¶¶ 47–49.

31 Claire Simmonds, An unbalanced scale: anonymous birth and the European Court of Human Rights, 72 CAMBRIDGE L.J. 263, 266 (2013).

32 See Godelli v. Italy, App. 33783/09, ¶¶ 53–58 (Eur. Ct. H.R. Sept. 25, 2012).

THE FUTURE OF A GENDER-INCLUSIVE BIRTH REGISTRATION SYSTEM

As the aforementioned case law highlights, there exists the potential to implement an anonymous births regime in a way that does not automatically violate the rights and welfare of the child, whilst also protecting women’s opportunity to dictate motherhood on their own terms. However, in advocating for such a birthing system, caution must be taken to not oversimplify the position. Ultimately, the right to give birth and leave no traces behind remains a highly charged topic, especially for those who are in favor of promoting the rights of the child. Indeed, in Odièvre itself, the judgment attracted a forceful dissent from seven of ECtHR Grand Chamber’s 17 judges who felt that the correct balance between the mother and child’s rights had not been struck. Rather, they believed the birthing model had afforded French women a “discretionary right to bring a suffering child into the world and to condemn it to lifelong ignorance.”33

2. Assessing the Appropriate Scope of a Child’s Right to Medical Transparency

In affording anonymity to mothers, the law would open up the possibility of wider unknowns regarding one’s biological origins – a dilemma that could be problematized from the perspective of medical transparency. More precisely, individuals benefit from an awareness of their family medical history, such as predispositions to certain hereditary diseases. Therefore, it must be considered whether introducing an anonymous births regime would infringe upon the child’s rights under Article 8 of the ECHR, which provides for “the right to respect for private and family life.”34 Central to this assessment is the Court’s enunciation in Gaskin v. United Kingdom that a right to identity falls within the ambit of Article 8, in order to protect the “vital interest in receiving the information necessary to know and to understand their childhood and early development”.35 However this is equally circumscribed by the real need to equally protect the “confidentiality of public records … of third persons.”: in

33 Odièvre, 2003-III Eur. Ct. H.R. at 94, ¶ 7 (Wildhaber, Braztza, Bonello, Loucaides, Cabral Barreto, Tulkens, Pellonpää, JJ., dissenting)

34 ECHR, supra note 28, art. 9.

35 Gaskin v. United Kingdom, App. No. 10454/83, 12 Eur. H.R. Rep. 36, ¶ 49 (1989).

this case, the mother.36 Thus, whilst the child has a right to know of their true biological origins, this is not an absolute right.37 Nevertheless, prioritizing a right to transparency over anonymity has found favor in the Court’s most recent jurisprudence. For instance, in Jäggi v Switzerland, the ECtHR ordered the performance of a paternity test on a deceased man thought to be the applicant’s father, thereby holding that the “right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life.”38 Similarly, in Phinikaridou v. Cyprus, the Court also considered the ordering of a paternity test, which can be distinguished from Jäggi due to the fact that the man in question was still alive.39 Whilst Odièvre may therefore feel outdated compared to the current judicial grain, it importantly serves as a reflection of the margin of appreciation granted by the ECtHR to States to fulfill their obligations under the Convention.40 Evidently, France has struck this balance in favor of maintaining the birth mother’s right to privacy, whereas in Ireland, for instance, the needle has recently swung in the opposite direction with the enactment of the Birth Information and Tracing Act 2022. There, adopted persons, upon reaching ‘qualifying age,’ will receive all details concerning their birth parents and family medical history regardless of any objections on the biological family’s part.41 The supposed saving grace is the ‘Information Session,’ mandated for

36 Ibid.

37 Some rights such as the right to life and right to not be subjected to torture are absolute and cannot be derogated from. Other convention rights, such as Article 8, are ‘qualified rights’. This means that the State may interfere with the right, where necessary for the protection of thirdparty rights or wider public interest. See Some definitions, COUNCIL OF EUR.: EUR. CONVENTION

ON HUM RTS TOOLKIT, https://www.coe.int/en/web/echr-toolkit/definitions (last visited Apr. 15, 2023); Article 8: Respect for your private and family life, EQUALITY & HUM. RTS. COMM’N (June 24, 2021), https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-yourprivate-and-family-life (UK).

38 Jäggi v. Switzerland, 2006-X Eur. Ct. H.R. 19, ¶ 37.

39 See Phinikaridou v. Cyprus, App. No. 23890/02 (Eur. Ct. H.R. Dec. 20, 2007).

40 Parties to the Convention are under an obligation to protect the rights and freedoms enshrined in the text, but in doing so ‘enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights’. The wording of Article 8 makes this clear: ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

41 Birth Information and Tracing Act 2022 (Act No. 14/2022) § 6(1), (2) (Ir.).

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applicants whose biological parent(s) have expressed a desire not to be contacted.42 During this session, the individual is reminded of the need to respect this no-contact preference in order to uphold the parents’ constitutional right to privacy.43 Despite this, no repercussions for failing to do so are envisaged by the legislation. The Act ultimately takes the pursuit of transparency over origins too far, in a way that does not sufficiently protect the Article 8 rights of the biological parents. Keeping in mind the balance between the respective parties’ rights, one can imagine an anonymous births regime that does promote a culture of disclosure and that protects the child’s interest in knowing their birth identity, which is in line with their Convention rights.

Moreover, the implementation of a comprehensive guide to good hospital practice in the event of a mother giving birth anonymously could help foster a greater culture of transparency. More specifically, this would require medical professionals to consult a mother wishing to be registered under ‘X,’ thereby allowing her to divulge any non-identifying family medical history. Such is the case in France, where this step is not mandatory, but encouraged during the consultation with the information privately recorded by the state.44 Similarly, one can look to the perspective of modern technologies, which have helped remove the onus from women to provide a conclusive medical history. The advent and development of genetic testing enables those unsure of their biological fabric to gain access to such information in a way that is more accurate than word-of-mouth accounts of family predisposition to certain conditions.45 In turn, the charged criticism in the dissent of Odièvre, that a child born ‘sous X’ would be condemned to “lifelong ignorance,”46 need not be definitive of the child’s experience.

42 Id. § 17(1).

43 Id. § 17(2)(b)(i).

44 Directorate for Legal & Admin. Info., Delivery under X, REPUBLIC OF FR. PUB. SERV. (Feb. 1, 2022), https://www.service-public.fr/particuliers/vosdroits/F3136?lang=en.

45 See Wendy Chung Do you know your family medical history?, COLUM UNIV IRVING MED CTR (Dec. 12, 2022), https://www.cuimc.columbia.edu/news/do-you-know-your-family-medicalhistory) (“just because a disease like cancer runs in your family doesn't mean every single person in your family will get cancer. That’s where genetic testing can provide greater specificity for members of the family”).

46 Odièvre v France, 2003-III Eur. Ct. H.R. 51, 94, ¶ 7 (Wildhaber, Braztza, Bonello, Loucaides, Cabral Barreto, Tulkens, Pellonpää, JJ., dissenting).

Taking a step further, it could be argued that an anonymous births regime should be implemented in tandem with the legal obligation of full medical disclosure by the birth mother. In short, that anonymization in one respect of someone’s life must be met with its equal sacrifice elsewhere. Only then can a true ‘balance’ in the rights of parties be achieved. However, the normative undesirability of this position rests on two pillars. Firstly, there is no corresponding duty for mothers wishing to be identified on the birth certificate to provide such information to the hospital as to their general family health. This could be an incidence of discrimination: protection against which is enshrined under Article 14 of the ECHR.47 Secondly, mandating the disclosure of this information would constitute an undue qualification to the mother’s article 8 right of “respect for private and family life.”48 In encouraging, but not requiring, women to provide full medical disclosure, the proposed framework circumvents these issues.

3. Evaluating an Anonymous Births Regime in Light of Modern Reproductive Rights

Finally, the reform proposal must address legitimate concerns that introducing an anonymous births regime would be too drastic a measure in the 21st century. In the UK, where abortion is available under the Abortion Act 1967,49 sex education is mandated in schools, and access to contraception is widespread, the residual need for an anonymous births regime is perhaps unconvincing.50 For example, in France, only approximately 600 people use the anonymous birth option per year, 10% of whom are minors.51 As such, there are strong grounds to suggest that this class of people would be better served by targeted health services, rather than providing anonymous birth as a matter of last resort. However, this is a reductive view that only considers the narrow practicalities of the regime, rather than its wider symbolism and ability to

47 ECHR, supra note 28, art. 14.

48 Id. art. 8.

49 See Abortion Act 1967, c. 87, § 1 (UK).

50 Marshall, supra note 19, at 327.

51 Only about 600 women in France make use of this every year. Lefaucheur, supra note 18, at 319.

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improve contemporary parentage laws more generally. This is true both in the cisgender context, where women would no longer be condemned to unwanted motherhood, as well as in the transgender context, where the child’s father need not be registered as ‘mother’ in a way that is counter to their gender identity. The same is also true of non-binary parents. Moreover, whilst it is true that social stigmas around pregnancies outside of marriage have largely disappeared, Marshall helpfully notes that in certain cultures there remain ongoing prejudices.52 For these women, an anonymous births regime would provide an opportunity for relief to their position.

B. Use of Gender-Neutral Language to Record a Parent’s Legal Relationship to the Child

The second substantive reform would entail the use of gender-neutral language, in the instance that a parent does wish to register themselves on the child’s birth certificate. As such, the relationship would be recognized and recorded through the neutral term of ‘parent,’ rather than ‘mother’ or ‘father.’ The law’s current stance is fundamentally misguided and specifically serves to disadvantage transgender and non-binary parents as is clear from R (TT). As discussed, in that case, it turned on President McFarlane to delineate the precise legal meaning of ‘mother’, in order to determine whether the applicant could be legally described as YY’s ‘father’ or ‘parent’. Ultimately, it was concluded that motherhood was an isolated question of biological fact: namely, that “[t]he attribution of motherhood is a consequence of the individual’s unique role in the biological process of pregnancy and birth.”53 Here, the Judge erred in treating “the person’s particular sex or gender” as a non-issue with regards to attribution of motherhood.54 More precisely, the judgment worryingly facilitates a disjunction between legal and societal understandings of parentage within the context of the birth registration system.55 On the applicant’s personal level, the result leads to “a discord between law and identity”, with the birth certificate

52 Marshall, supra note 19, at 326.

53 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [2020] Fam 451, [135] (McFarlane, P.).

54 Id. at [139]

55 Davis, supra, note 7.

expressing a legal relationship not experienced psychologically and emotionally with his child.56 And so, the theoretical difficulties of this ‘inconsistency’ between legal and social extends to harmful real-life impact, which is best remedied through modernization of the birth registration system. To this extent, the current legal regime fails to adequately reflect and protect contemporary families; instead, it serves to exacerbate the gender dysphoria experienced by transgender parents and the associated harmful consequences for their children.57

More specifically, there is a critical need for the implementation of inclusive, gender-neutral language to accurately record the lived reality of parent-child relationships.

1. Preventing the Inadvertent ‘Outing’ of Transgender Parents

Without a gender-neutral birth registration system, the law will continue to effectively ‘out’ transgender parents - thereby exposing them to a risk of “discrimination and prejudice.”58 The worrying nature of this must be understood within the particularities of the current British political climate towards transgender persons. Writer and journalist Shon Faye highlights that, “[h]ere [Britain], suspicion over the presence of trans people (particularly trans women) has persisted, and hostility towards legal rights and protections for trans people has much more traction,” in comparison to other Western jurisdictions such as the United States.59 Most recently, this has been highlighted through protests in response to Sturgeon’s Gender Recognition Reform (Scotland) Bill.60 The proposals sought to liberalize the process of changing genders in Scotland, through removing the need for a medical

56 Fenton-Glynn, supra note 3, at 37. Of course, this will not be the case for all transgender families. For instance, where a parent has transitioned later on in the child’s life, they may still continue to use the same language. For example, continuing to use the term ‘mother’ (as this reflects their psychological reality), even when their biological mother has transitioned to the male gender.

57 In the sense that where the parent experiences discrimination, or more general harm to their welfare, this has a consequential negative impact on their child.

58 Vic Parsons, The UK is making sure kids of trans parents are disadvantaged from the moment they’re born, PINKNEWS (Nov. 16, 2021), https://www.thepinknews.com/2021/11/16/trans-parentslegal-recognition/

59 SHON FAYE, THE TRANSGENDER ISSUE: AN ARGUMENT FOR JUSTICE 229 (2021).

60 Seeking to amend the Gender Recognition Act 2004, c. 7 (UK).

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diagnosis of gender dysphoria, reducing the time requirement of living in the acquired gender to three months and lowering the minimum age of application to 16.61 Criticism that the reforms would result in the erasure of women’s rights, amplified by the ill-timing of transgender rapist Isla Bryson who was removed from a women-only prison, paints a worrying picture of a tendency to indiscriminately characterize all transgender people as dangerous and predatorial.62 From this, the need to take precautions against inadvertently ‘outing’ transgender parents through their child’s birth certificate must be strongly underlined.

However, suggestions that implementation of gender-neutral language must also pay fidelity to the integrality of the biological process to parenthood risk losing sight of the reform’s objective. For example, Deery floats the idea of adopting the “neutral” term of “gestational parent” as an alternative for those not wishing to be recorded as the child’s ‘mother’.63 However, upon careful consideration, this proposed solution would provide little relief to transgender parents like McConnell, to whom use of the term ‘mother’ does not align with their gender identity. Substantively, “gestational parent” still carries the same gendered connotation as ‘mother’, meaning that registration would still bear the serious danger of ‘outing’ the parent.64 These concerns are even more acute, considering that Deery specifically suggests the title could be selected as part of an “opt-in” alternative to registration as ‘mother’: thereby further cementing transgender and non-binary parents as othered.65 It follows that merely implementing a prima facie gender-neutral parentage regime, such as with terms like “gestational parent”, is not in and of itself a de facto protection of transgender parents’ rights: a nuanced and thoughtful approach is critical.

61 Gender Recognition Reform (Scotland) Bill 2022, SP Bill [13], Explanatory Notes, ¶ 17 (Scot.)

62 See Libby Brooks & Severin Carrell, Trans woman found guilty of rape moved to men’s prison, THE

GUARDIAN (Jan. 26, 2023), https://www.theguardian.com/uk-news/2023/jan/26/trans-womanisla-bryson-found-guilty-rape-not-be-held-in-womens-prison-sturgeon; What are the plans for gender reforms in Scotland?, BBC (Jan. 17, 2022), https://www.bbc.co.uk/news/uk-scotlandscotland-politics-60221034

63 Caragh Deery, Male Mothers: The Law’s Struggle to Capture the Modern Family, 10 OXFORD U.

UNDERGRADUATE L.J. 80, 108 (2021)

64 With the applicant in R (TT), the concern was that being registered legally as YY’s mother, despite having the social relationship of being the child’s father, would ‘out’ him as being transgender when required to provide birth certificate records.

65 Deery, supra note 62, at 108.

2. Aligning the Law and Modern Reproductive Technologies

Furthermore, implementing gender-neutral language would not serve to undermine the law’s recognition of biology in this sphere - but rather better reflect the different processes at play in procreation. Simply put, “[c]onfronting the [gender] binary … is not the same as creating biological uncertainty.”66 This point is especially pertinent in cases of three-parent families created through surrogacy agreements.67 Here, even where the surrogate mother does not contribute her own egg, the child in question is biologically dependent on three different individuals: the ovum and sperm providers for their DNA, as well as the surrogate for fetal development and genetic expression.68 However, recognition of this biological fact is ignored by the current law, which is limited to only acknowledging a maximum of two legal parents at any one time. Upon birth, the surrogate mother will be recognized as the child’s legal mother, due to her gestational role, regardless of whether her own egg was used.69 However, the intended parents will then seek to reverse this position by applying to the court for a Parental Order: either under Section 54 (for couples) or Section 54A of the Human Fertilisation and Embryology Act 2008 (HFEA).70 Subject to satisfaction of the statute’s criteria, the order’s effect is to dissolve the legal relationship between the surrogate mother and child. At the same time, legal relations between the child and intended parents crystallize.71 In turn, the surrogate mother will no longer have a legal connection to the child in question - despite the fact that “the process of carrying a child and giving him birth …,

66 Peter Dunne, Recognising transgender parenthood on birth certificates: Re (JK) v Secretary of State for the Home Department, 3 INT’L FAM. L.J. 230 (2015).

67 Three parent families can also arise through the biological parents’ separation and subsequent introduction of a ‘step-parent’ into the child’s life.

68 Does A Surrogate Share DNA With The Baby? – Surrogacy Epigenetics (2022), PREMIUM SURROGACY, https://www.santamonicafertility.com/premium-surrogacy/blog/surrogacyepigenetics-does-a-surrogate-share-dna-with-the-baby/ (last visited Apr. 15, 2023).

69 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [2020] Fam 451

70 See Human Fertilisation and Embryology Act 2008, c. 22, §§ 54, 54A [hereinafter HFEA 2008] (UK). See also McCandless & Sheldon, supra, note 9, at 187–207 (providing the legal framework for the legal regulation of artificial reproduction when it occurs in licensed clinics).

71 Note that surrogate mothers can choose to contest this under the HFEA 2008. The decision will then lie to the court to decide where the child’s best interests lie, under the Children Act 1989, § 1 (UK). Note that the grain of case law suggests that the court will usually find that the child’s best interests lie with going to the intended parents.

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brings with it, in the vast majority of cases, a very special relationship between mother and child.”72 Of course, for many families conceived via surrogacy, this will be both an acceptable and desirable state of affairs, but it provides little relief for surrogate parents who wish to remain legally involved in the child’s life with the parents’ consent.73

This issue is not isolated to the interests of biological and intended parents, but also to those of the child. As the State of California acknowledges, recognizing three-parent families can in fact serve to enhance the child’s welfare.74 Yet despite the paramountcy principle being the central pillar of child law in England and Wales, the current law does not accommodate this welfare argument due to the implications it could provide to common law understandings of parenthood.75 Recognizing the surrogate mother would, depending on the gender of the intended parent(s), require the law to recognize the possibility of having two legal mothers. This would run counter to the established position from R (TT) that motherhood is gestational and therefore can only be attributed to one person. This legal fact is similarly reflected elsewhere. For example, where a lesbian couple conceives a child through artificial reproduction, the HFEA provides that only the gestational parent can be classified as the child’s legal ‘mother,’ whilst her partner will be recorded in law as the second female parent.76 Here again, we see family law’s failure to accommodate the needs of families not conforming to the heteronormative model, using terms which do not reflect their social and lived reality.

72 In re G [2006] UKHL 43, [2006] 1 WLR 2305, [34] (Lady Hale of Richmond) (appeal taken from Eng.) (UK).

73 In that it has been foreseen, and a surrogacy agreement entered into with foresight of the intended consequences.

74 See CAL FAM CODE § 7612(c) (“In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child”).

75 The ‘paramountcy principle’ derives from the language of the Children Act 1989, § 1, which states “the child’s welfare shall be the Court’s paramount consideration” when determining questions relating to “the upbringing of a child,” id. § 1(a), or “the administration of a child’s property or the application of any income arising from it,” id. § 1(b).

76 McCandless & Sheldon, supra, note 9, at 44.

3. Aligning Legal and Social Realities to Enhance both Child and Parent Welfare

Through permitting registration in gender-neutral terms, the aforementioned issues of adequately capturing modern family units would be eliminated. By speaking in terms of ‘parent’ rather than the dimorphic language of ‘mother’ and ‘father,’ birth registration law would open up the opportunity of recognizing the multiple parties at play in a child’s factual and social parenthood.77 In particular, consternation over whether two ‘mothers’ can truly exist from a biological perspective would be bypassed. For families involving two women, in particular, the law would no longer imply that some ‘mothers’ are of a lesser status than others, but rather would recognize their equal contribution to the livelihood of the child. Whilst recognition of ‘three-parent families’ would be a novel concept to English and Welsh law, they have already seen legal approval in U.S. states such as Louisiana and Alaska.78

The change in law would not only be beneficial to three-parent families arising from surrogacy arrangements but could also afford concrete legal recognition to step-parents who similarly play important roles in the child’s life. Currently, their current legal position may be unsatisfactory and precarious.79 Firstly, they could obtain legal parentage of their civil partner/spouse’s child through the adoption procedure; however, this is limited by the adoption framework which provides for the dissolution of the legal relationship between the other birth parent and the child.80 Thus where that parent is still in the picture, it is highly unlikely that they will provide the necessary statutory consent under Section 47(2) for the adoption to take place.81 The only other means of legal involvement is through acquiring ‘parental responsibility’: the

77 Id. at 14.

78 Jennifer Peltz, Courts and ‘tri-parenting’: A state-by-state look, ASSOCIATED PRESS (June 18, 2017), https://apnews.com/article/4d1e571553a34cfbb22b72249a791a44

79 Sarah Hughes, Step-parents in 2019: family but legal strangers?, 168 NEW L.J. 15, 15–16 (2019).

80 Under the Adoption and Children Act 2002, c. 38, § 67(1) (UK), the adopted child is deemed to be the legal child of the adoptive parent(s). This results in the extinction of legal parentage, id. § 67(3), and parental responsibility, id. § 46(1), between the other biological parent and child.

81 Presuming that the Court has not decided that that biological parent’s consent should be ‘dispensed’ with id. § 52.

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legal power to make decisions concerning the child’s upbringing.82 Unlike parenthood, parental responsibility can be exercised by more than two people and can be acquired via a parental responsibility agreement under Section 4A of the Children Act 1989.83 However, whilst legal parents will always have parental responsibility, the parental responsibility of a step-parent can be easily revoked upon the breakdown of the relationship. The statute provides that a parental responsibility agreement can be revoked by the court upon application “by any person who has parental responsibility for the child”.84 Consequently, they will cease to have any legal connection to their ex’s child regardless of how long or deeply they had been involved in their life. In light of the increasingly blended nature of families and the rise of surrogacy agreements, reform would be a clear example of the law’s willingness to keep pace with changing social dynamics and accommodate all family forms, not just those in the nuclear heteronormative model.85

It may be countered, however, that choosing to adopt gender-neutral language would further contribute to, and reinforce, the “highly dominant dogma [in family law, that] whatever is rooted in biology is bad, whatever is socially constructed is good.”86 In particular, that this reform opens up the opportunity of privileging parents’ choice, and interests ahead of the child’s welfare, which is the prime consideration.87 However, welfare must be understood as the product of interlinked relationships, and thus accommodating a parent’s identity can in fact result in the enhancement of the child’s own interests. Failing to fully appreciate the gravitas of the intertwined nature of child and parent welfare was a crucial stumbling block for President McFarlane in R (TT). Specifically, it was disappointing that the critical evidence of clinical psychologists, such as Clare Brooks, who spoke to this symbiosis, was not given

82 Children Act 1989, § 3(1) (“‘Parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”).

83 Children Act 1989, c. 41, § 4A (UK).

84 Id. § 4A(3)(a).

85 Olivia Miller, Number of parents using surrogates in England and Wales quadruples in 10 years, UNIV. OF KENT (Sept. 22, 2021), https://www.kent.ac.uk/news/society/29777/number-ofparents-using-surrogates-in-england-and-wales-quadruples-in-10-years

86 Lefaucheur, supra note 18, at 342

87 Therese Callus, First “Designer Babies”, Now À La Carte Parents, 38 FAM. L. 143 (2008).

due acknowledgment. In particular, she powerfully notes that registering McConnell as a mother, “would put him back to square one in his fight for recognition as a man, and this would be likely to have an indirect adverse impact on Y.”88 This captures an important truth: when the parent’s individual wellbeing is strained, the child could experience harmful knock-on effect. It rightly follows that her professional opinion ultimately concluded that it was “overwhelmingly” in the child’s best interests for TT to be registered as the child’s father, with the alternative giving “the impression of something secretive or shameful.”89

Notably, President McFarlane was not completely dismissive of these welfare-based arguments and instead recognized that the result would lead to a “tension between the legal parentage and the social/psychological parentage,” which would be distressing to the child.90 Yet it is disappointing that such evidence was dismissed as “partial,” failing to take into account the needs of “children and society” as well as the Government’s need for administrative coherence.91 Similarly, the evidence submitted in support of a finding that YY’s welfare would be best promoted through not recording TT as ‘mother’ on the birth certificate, was also criticized for not being “couched in strong or compelling terms” and therefore not altering the position that registration as ‘mother’ was best from a welfare perspective.92 Instead, President McFarlane deferred to the Government’s policy choice of “afford[ing] priority to the need for clarity as to parental status” in the GRA 2004 provisions.93 However, in the process, consistent evidence that the child’s well-being would be compromised was cast aside, and the judge sacrificed the applicant’s dignity as a transgender man and his child’s well-being to accommodate a wider administrative project.

88 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [2020] Fam 451, [59] (McFarlane, P.).

89 Id. at [60]

90 Id. at [147].

91 Id. at [260]

92 Id. at [259]

93 Id. at [263].

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4. Implementation of Gender-Neutral Language in Other Jurisdictions

Encouragingly, however, gender-neutral language has already been successfully implemented in other jurisdictions, without a corresponding sacrifice in administrative coherence.94 This crucially demonstrates that moving to language couched in gender-neutral terms would not be a radical or unimaginable step. For example, in Ontario, Canada, the All Families are Equal Act amended the Children’s Law Reform Act to change the language of parentage laws 95 Now, the legislation speaks in terms of ‘parent’ rather than the previously gendered language of ‘mother’ or ‘father.’96 In turn, the law better aligns with, and thus adequately regulates, the modern ‘family’ and the accompanying rise of reproductive technologies. Morawetz summarizes this well in evaluating that, “[i]t’s elimination of gendered legal terms such as ‘mother’ and ‘father’ in favor of ‘parent’ is an important semantic shift towards normative inclusion of non-heterosexual parental setups.”97

Thus, when Fenton-Glynn emphasizes that, “[w]e need to break down the barriers of our conservative approach to the legal family and re-imagine a model of parenthood fit for the twenty-first century,” the inherent appeal of implementing gender-neutral language becomes clear.98

On the one hand, the proposed model could be criticized as unduly sacrificing the majority’s interests to that of a minority group: namely transgender or non-binary parents who are unsatisfied with the status quo. Indeed, the wider needs of society to have a birth registration system that consistently records parental identity is a governmental “priority.”99 However, the preceding comparative law discussion demonstrates that importing new

94 Fenton-Glynn, supra note 3, at 37.

95 See All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), S.O. 2016, c. 23, amending Children’s Law Reform Act, R.S.O. 1990, c. 12 (Can. Ont.)

96 Andrea Cooley, The All Families Are Equal Act, SISKINDS (Dec 5, 2018), https://www.siskinds.com/families-equal-act/.

97 Colleen Morawetz, The All Families are Equal Act: Does it Fulfill its Potential?, MCGILL J.L. & HEALTH BLOG (Mar. 23, 2017), https://mjlh.mcgill.ca/2017/03/23/the-all-families-are-equalact-does-it-fulfill-its-potential/.

98 Fenton-Glynn, supra note 3, at 37

99 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [2020] Fam 451, [263] (McFarlane, P.).

statutory language, which significantly improves this minority’s legal position, does not automatically erode the rights of cis-heterosexual parents. Moving towards a gender-neutral birth registration model would not prompt systemic disorder, but rather ensure that the rights and interests of all parents are protected. In turn, the ‘legitimate’ aim of ‘establishing a coherent registration system’ becomes a nullity, for its sacrifice can no longer be presumed.100

5. Evaluating the Necessity of an Anonymous Births Regime in the Context of a Gender-Neutral System

Having advocated for the implementation of gender-neutral language, it may be countered that the case for an anonymous births regime becomes redundant. The thrust of the argument is that adopting gender-neutral language is sufficient in and of itself to displace the starting point that every child has a legal mother thereby remedying the problem for parents like McConnell. Whilst an understandable criticism, the disjunct between theory and practice must be analyzed more closely. In line with the proposal, the legal requirement that every child be registered with a legal ‘mother’ would be modified to become an obligation of registration by at least one legal ‘parent.’ Whilst prima facie this appears to ensure greater equality between the sexes, the burden would in practice remain predominantly shouldered by the gestational parent. For example, where a biological father cannot be tracked down, the gestational parent would be required by default to register themselves on the child’s birth certificate. Even where the gestational parent similarly does not wish to be legally affiliated with the child, the circumstances of pregnancy mean that they are not conferred the same possibility of avoiding the initial ties of parenthood.101 In reality, the non-requirement of a legal ‘mother’ would be in name only. The response to this position is not to implement a requirement that both biological parents be ‘tracked down’ to arrive at a mutual decision concerning birth registration. Importantly, consistency must be maintained with the current grain

100 Id. at [253]

101 Of course, they could later choose to give up the child for adoption. Nevertheless, they will still be initially recognized in law as the child’s parent.

THE FUTURE OF A GENDER-INCLUSIVE BIRTH REGISTRATION SYSTEM

of family law, which imposes no obligation on women to identify the father of their child.102 Encouraging drawn-out disputes between biological parents as to who must be registered on the child’s birth certificate would create a burdensome and hostile system that threatens the child’s welfare counter to the paramountcy principle. By implementing an anonymous births regime, this risk is minimized.

Conclusion

It is high time that the law relating to birth registration in England and Wales undergoes sweeping and meaningful change. Whilst President McFarlane correctly identified in R (TT) that, “much of this area of the law is virgin territory,” this should not be grounds for maintaining fidelity to antiquated laws that fail to adequately keep pace with how society is changing.103 Until law reform is implemented, the laws of England and Wales will continue to suppress the rights of transgender parents like McConnell and contribute to the exacerbation of gender dysphoria, by maintaining that parentage is at its core rooted in the biological. The law is not only failing parents but also their children, whose well-being is often interdependent with that of the parent. A narrow consideration of the child’s ‘best interests’ under the current law is indicative of an uninformed or at least unimpressed understanding of the influencing forces of child welfare. To remedy these issues, this article has made the case for a bifold law regime, which firstly terminates the legal requirement that every child be born with a ‘mother,’ whilst secondly permitting the expression of parentage in gender-neutral terms. Understandably, these ideas will not prompt universal consensus, but they highlight the need for a serious conversation regarding how we can ensure the law adapts to modern technologies and the changing profile of ‘family’ in England and Wales. For too

102 For instance, in adoption proceedings, the birth mother need not track down and inform the biological father so long as there is no realistic chance he would take over the care of the child in question. See, e.g., C v. XYZ Cnty. Council [2007] EWCA Civ 1206, [2008] Fam 54, [26] (Arden, L.J.) (Eng.); In re L [2007] EWHC 1771, [2007] EWHC 1771 (Fam), [41] (Munby, J.) (Eng.); Z Cnty Council v R [2001] 1 FLR 365 (Fam) 366–67 (Holman, J.) (Eng.).

103 R (TT) v. Registrar General [2019] EWHC 2384 (Fam), [138] (McFarlane, P.).

long, “the law’s approach to the attribution of legal parenthood [has been] premised upon a binary, two-parent model, ideally consisting of one mother and one father.”104 Parliament must take the first step towards beginning a necessary dialogue that remedies this.

104 ALAN BROWN, WHAT IS THE FAMILY OF LAW?: THE INFLUENCE OF THE NUCLEAR FAMILY 7 (2019).

Dylan Ek*

New Century, New Climate Challenges: The Legal Avenues of Federal Powers Over Construction of Dams and Reservoirs to Address the National Water Crisis

ABSTRACT. The federal government has recently tried to respond to nationwide droughts and water shortages driven by climate change by funding the construction of new dams and reservoirs. However, environmental concerns have led states to resist these projects, raising the question of what legal rights the federal government has when building dams. Under the doctrine of navigable servitude that originates from the Commerce Clause of the U.S. Constitution, the Supreme Court has recognized Congress’ right to build dams and reservoirs over the objections of state and local authorities. However, the Supreme Court has also found that the powers of the executive branch are more limited in building dams and ignoring state laws to do so. Any considerations by the federal government as to what avenues, executive or congressional, are available to them in initiating large-scale construction to address national water shortages must consider these differing treatments imposed by the judiciary. This article will argue that the Court has created an avenue through which the federal government can achieve its newly reaffirmed goal of taking a larger role in managing the national water crisis of the 21st century.

Editor:

Economics

*Dylan Ek is a second year at UCLA majoring in Economics with a minor in History. He plans to attend law school, with an interest in regulatory law and contract law. He would like to thank his family for their support, as well as his editor, Japji, without whom this article would not have been possible.

Japji Singh is a second year student at UCLA studying

and minoring in Mathematics and International Migration. Outside of the Undergraduate Law Journal, she is a contributor for the Daily Bruin, a dancer in Bruin Bhangra, and a member of Bruin Reserve Bank. Japji hopes to attend law school in the future and is particularly interested in international law.

Introduction

Drought seems to be a way of life now in California. After the year 2000, the state of California entered its hottest and driest period since 1901. There is seemingly no refuge from the constant drought periods and heat waves. A recent study has found that 42% of this drought impact can be attributed to man-made climate change.1 This changing environment has put an incredible amount of stress on the state’s already aging water infrastructure, including reservoirs like the Shasta Dam.

The Shasta Dam was constructed in 1945 to supply California’s Central Valley with water to support the state’s agricultural sector and growing metropolitan centers. Since then, the population of California has quadrupled. Snowpack still provides for about a third of the state’s water needs.2 Usually, rain provides the state with water through the autumn and winter, while snowmelt keeps the reservoirs full during the late spring and summer months. However, the changes in climate have caused snowpacks to melt, on average, 21 days earlier than previous years.3 This phenomenon often forces reservoirs to release collected rainfall from winter storms to avoid becoming overwhelmed when the snow melts earlier in the spring. The result of these rapidly emptying reservoirs is subsequent decades of drought in California, where reservoirs that once depended on snowmelt through August dry up during the summer months.

To address these growing climate change concerns in California, the Bureau of Reclamation, which supervises federal water management in the United States, received approval in 2018 to raise the Shasta Dam an additional 634,000 acre feet to the reservoir’s total capacity.4 However, in response to this action, California sued one of the dam’s investors, Westlands Water District, to stop

1 A. Park Williams, Benjamin I. Cook, & Jason E. Smerdon, Rapid intensification of the emerging southwestern North American megadrought in 2020–2021, 12 NAT. CLIMATE CHANGE J. 232 (2022).

2 Ben Chou, California Snowpack and the Drought Fact Sheet, NAT RES DEF COUNCIL (Apr. 2014), https://www.nrdc.org/sites/default/files/ca-snowpack-and-drought-FS.pdf.

3 Kari Hall, Worst Megadrought in 1,200 Years: Early Snow Melt Causing Water Crisis, NBC BAY AREA (Apr. 5, 2022), https://www.nbcbayarea.com/news/local/climate-in-crisis/worstmegadrought-in-1200-years.

4 N. Cal. Area Office, Shasta Dam and Reservoir Enlargement Project, U.S. BUREAU OF RECLAMATION (Mar. 4, 2022), https://www.usbr.gov/mp/ncao/shasta-enlargement.html.

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

them from contracting with the federal government on the project. 5 The state argued that raising the Shasta Dam violated state environmental protections of fisheries. The California Supreme Court sided with the state, temporarily halting construction on the dam.6

This incident reflects the serious state of water infrastructure in the United States and its challenges in meeting the needs of the 21st century. The infrastructure that currently facilitates intra and interstate allocation of water comprises a network of federal, state, and local water projects. This network includes dams built and maintained through cooperation and conflict between various agencies and municipalities. While the federal government was the leader in building large water projects, especially in the American West, during the 1930’s and 1940’s, today, states and local water districts operate their own dams and reservoirs due to a lack of federal leadership. The legal controversy surrounding the raising of the Shasta Dam is indicative of this mismatch of bureaucracy between state and federal bodies. In recent years as water shortages have grown, efforts by the federal government to expand water storage have been met with resistance from some states over concerns over environmental impacts and local sovereignty.

While water infrastructure in the United States has been chronically underfunded in past decades, there are signs that the federal government is gearing up to take a bigger role in expanding the nation’s reservoir system, such as federal investments in the Shasta, Sites, and New Melones dam projects.7 Reflecting this realignment in priorities, Congressman Tom McClintock, a senior member of the House Natural Resources Committee, recently announced that the government “will not solve our water shortages until we

5 People of the State of California ex. rel. Becerra v. Westland Waters Dist., No. 192487 (Superior Ct. Cal., Shasta Cnty. filed May 13, 2019).

6 See Westlands Water Dist. v. Superior Ct., 2019 Cal. Lexis 7169 (Cal. Sept. 25, 2019), denying application to review, 2019 Cal. App. LEXIS 1323 (Cal. App. Aug. 29, 2019).

7 Why America’s Water Infrastructure Is Crumbling, WALL STREET J. (Feb. 2, 2023), https://www.wsj.com/video/series/wsj-explains/why-americas-water-infrastructure-iscrumbling/954FCBDE-03AE-434F-9904-

B5B9AA0DFBEA?mod=Searchresults_pos2&page=1.

build new reservoirs” and introduced legislation to fast track the construction of new dams by the federal government.8

Historically, the process through which the federal government built and improved dams was through executive agencies acting under the power of the Reclamation Act of 1902. However, states and environmental groups have been successful in blocking executive agencies operating under this act, such as the case with the Shasta Dam. Nevertheless, Congress itself as a governing body possesses broader powers than executive agencies over federal water projects under the doctrine of navigable servitude. While executive agencies are bound to state law under the Reclamation Act, the courts have afforded Congress much greater powers, including the ability to bypass states and localities when constructing or renovating dams and reservoirs due to Congress’ constitutional right to regulate navigable waterways.

This article will argue that the Court has created an avenue through which the federal government can achieve its newly reaffirmed goal of taking a larger role in managing the national water crisis of the 21st century. The authority of executive agencies to ignore state and local laws when pursuing new dam construction is severely more limited than that of Congress. Specifically, this article sets forth an argument that the state and federal courts have explicitly afforded Congress – and not the executive – the power to build new dams and reservoirs over the objection of states and localities through the doctrine of navigable servitude originating from the Commerce Clause of the Constitution.

Part I covers the origins of navigable servitude and how the Supreme Court interpreted the Commerce Clause to include navigation. In reviewing the application of the navigable servitude doctrine on building dams, Part II examines how the development of jurisprudence affirms the Supreme Court’s assertion that states could not interfere with Congressional construction of new reservoirs. Part III will then further analyze the restrictions the Supreme Court placed on executive bodies attempting to build new dams and the obligation of these agencies to cede to state law. This section will establish that under existing

8 Rep. McClintock Introduces Six Bills at the Start of the 118th Congress, OFF. OF CONGRESSMAN

TOM MCCLINTOCK (Jan. 12. 2023), https://mcclintock.house.gov/newsroom/pressreleases/rep-mcclintock-introduces-six-bills-at-the-start-of-the-118th-congress.

jurisprudence, only Congress specifically and historically has these powers of dam construction under navigable servitude. Further, Part IV will discuss further complications to the executive introduced by environmental law, particularly the Clean Water Act, and how it has expanded the Court’s interpretation of Congress’ commerce powers. Finally, Part V will argue that the judicial precedent introduced in the previous sections indicates that executive agencies are incredibly limited as far as what water projects they can pursue outside of directives by Congress. Congress holds very broad powers concerning dam construction that trump state and local interests. While the federal government has made clear its wishes to respond to droughts exacerbated by climate change through new reservoirs, there are several legal avenues through which they can do so. This article will conclude by arguing which statutory and constitutional limitations the courts should impose on these federal legal avenues, and thus establish a path forward for future federal action.

I. Early History of Navigable Servitude in the Context of Interstate Commence

The federal government’s ability to build dams and reservoirs originates in its right to navigable servitude. Navigable servitude is a doctrine concerning navigable waterways in the United States. This doctrine originates from the Commerce Clause of the U.S. Constitution, under which Congress has the power to regulate navigable waters. The definition of a navigable waterway is constantly under judicial scrutiny as courts are constantly tinkering with the definition.9 Most commonly, a navigable waterway refers to a river or lake that can be navigated by a watercraft. Under the Commerce Clause, Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”10 What “commerce” encompasses has been a source of debate before the courts. One of the earliest questions the Supreme Court had to answer was whether “commerce” referred only to the direct sale of goods and services, or if it included the avenues through which goods were transported such as rivers and highways.

9 See, e.g., Sackett v. EPA, No. 19-35469 (U.S. argued Oct. 3, 2022).

10 U.S. CONST. art. I, § 8, cl. 3.

In 1824, the Supreme Court unanimously decided that the Commerce Clause empowered Congress to regulate navigation on major rivers and other bodies of water in Gibbons v. Ogden. 11 In this landmark case, the Court interpreted “commerce” to include navigation, not just the sale of goods. This allowed Congress to regulate traffic on rivers and other navigable waters, forming the foundation of the navigable servitude doctrine. The Court also stated that this power over commerce was absolute, and the state right to regulate navigation was subordinate to the congressional one.

In 1876, the Supreme Court reaffirmed and expanded these powers in South Carolina v. Georgia. In this case, the federal government rerouted portions of the Savannah River to improve the Savannah harbor. The Court found that these actions were consistent with Congress’ power to regulate interstate commerce and that these powers include the rerouting or obstruction of a navigable waterway.12 This expanded Congress’ powers to a greater extent than Gibbons, which merely gave Congress the ability to regulate traffic on waterways. In South Carolina v. Georgia, the Court found that the waterways could be fundamentally altered in pursuit of improving navigation. Building on the precedent in Gibbons and South Carolina v. Georgia, future Courts would further expand this power to alter waterways under Congress’ commerce powers to encompass the construction of dams, levies, and reservoirs.

II. Courts Expand Navigable Servitude to Dams and Reservoirs

The rationale of cases like Gibbons seems rather straightforward – Congress has power over interstate commerce, and large rivers are a major avenue for commerce. 13 Therefore, Congress can regulate these large rivers. However, the findings of South Carolina v. Georgia, namely its assertion that Congress has the power to alter waterways to improve navigation, opened up more questions surrounding the limits of Congress’ power under navigable servitude. This uncharted judicial territory included how much Congress could alter a river to

11 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

12 South Carolina v. Georgia, 93 U.S. 4 (1876).

13 See Gibbons, 22 U.S. at 186.

improve its navigability as well as whether the federal government’s powers ended when their actions no longer aided navigation. In a series of cases, the Supreme Court held that Congress’ power to regulate navigation included the construction of reservoirs and that this power was an absolute one.14 Because this was a constitutional right of Congress, states could not block these federal projects. By ruling in this manner, the Court effectively set a precedent that broadened the scope of federal action on navigable waters.

A. The Supreme Court Broadens Federal Power to Improve Navigability on Rivers

While navigable servitude originally pertained strictly to commerce, the Supreme Court began to consider whether Congress had the power to regulate waterways only if these actions directly affected commerce or if these powers could apply more broadly to improving navigation. In doing so, the Court also had to consider what questions surrounding Congress’ exercise of its commerce powers were legal ones and which ones were matters of policy.

United States v. Chandler-Dunbar Water Power Co. was one such case where the Court was faced with these questions. This case arose from a dispute along the St. Mary’s River in Michigan, where the Chandler-Dunbar Water Power Company ran a privately-owned dam to generate hydroelectric power. The dam was condemned by the federal government in an effort to improve navigation along the St. Mary’s River. In retaliation, Chandler-Dunbar sued the federal government for just compensation, contending that the government would have to pay landowners when their property was seized under eminent domain.15 The

14 See Arizona v. California, 283 U.S. 423, 424 (1931) (“As the river is navigable and the means which the Act provides are not unrelated to the control of navigation, the erection and maintenance of the dam and reservoir are clearly within the powers conferred upon Congress”); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523 (1941) (“The fact that portions of a navigable stream are no longer used for commerce does not dilute the power of Congress over them. Congress may control non-navigable parts of a river in order to preserve and promote commerce on the navigable parts”).

15 Under the right of eminent domain, the federal government can seize private land for public use but is usually required to compensate the owners for the value of their property. See e.g., Bauman v. Ross, 167 U.S. 548, 574 (1897) (“In the Fifth Article of the earliest amendments to the Constitution of the United States, in the nature of a Bill of Rights, the inherent and necessary power of the Government to appropriate private property to the public use is

Supreme Court ultimately denied the power company’s demand for just compensation, concluding that the river fell under the direct authority of the federal government under navigable servitude. Therefore, no corporation could assert private ownership over the river.16

Most significant in this rationale is the Supreme Court’s statement that whether or not the government’s actions actually improved the navigability of the river was a legislative question rather than a judicial one. This was in response to Chandler-Dunbar’s claims that the actions of the government did not fall under navigable servitude because they did not actually improve the navigability of the river. In other words, the Court held that asserting that the government did not improve navigability would not diminish the government’s authority over the waterway.17 The Court affirmed that the government has the authority to regulate navigable waterways, and whether or not its actions improve the waterway’s navigability or facilitate commerce is a question for the legislature and not the courts to decide. These two findings were reaffirmed in a similar case, United States v. Twin City Power Co. in 1956. The case held that the Court could not contest Congress’ assertion that its actions improved navigation, and that there could not be private ownership of navigable waterways.18

While Chandler-Dunbar involves the removal of a dam, the Court’s findings would broaden Congress’ commerce powers in two significant ways. First, it shifted the scope of navigable servitude even farther away from the context of commerce, which would allow later courts to expand Congress’ powers to activities that were not intrinsically commercial. Second, it reaffirmed that courts could not question whether the actions of Congress truly improved navigation, meaning that no court could block congressional action on the basis that it did not sufficiently enhance navigation. This precedent would allow

recognized, and the rights of private owners are secured, by the declaration, ‘nor shall private property be taken for public use without just compensation.’”).

16 United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

17 Id. at 54.

18 See United States v. Twin City Power Co., 350 U.S. 222, 224–25 (1956) (“The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one”).

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

Congress to approve many projects, including the building of reservoirs under the guise of improving navigation, even if these projects completely blocked the flow of water on a river.

B. Navigable Servitude Gives Congress the Power to Build Dams

While Chandler-Dunbar allowed the federal government to tear down a dam, later cases decided Congress’ ability to build a dam under the same principle. Arizona v. California was the first in a string of cases call this into question. The state of Arizona challenged the federal government’s water plan for the Colorado River Basin.19 While traditionally most of the Colorado River flowed into Arizona and eventually Mexico, the federal government began construction on a series of dams in the 1930’s that would limit the flow of water to Arizona to support growing populations and agricultural communities in other states. In 1931, the federal government began issuing contracts for the construction on the Boulder Canyon Dam and authorized by the Boulder Canyon Project Act of 1928, which would sit between Nevada and Arizona.20 In response, the state of Arizona sued the federal government and its partner states in the Colorado Basin plan, arguing the project was in violation of Arizona state law because it hindered Arizona’s ability to appropriate water from the Colorado River. Arizona maintained that the Colorado River was not a navigable waterway and therefore not subject to Congress’ commerce powers.

The Court ruled against Arizona, taking judicial notice21 that the Colorado River was formerly navigable.22 The Court found that commercial disuse of a river does not amount to an abandonment of its classification as navigable, nor does it prohibit future exertion of federal control over it.23 The federal government thus had the power to construct the Boulder Dam to improve navigability. Because Congress had said the purpose of the project was to

19 Arizona v. California, 283 U.S. 423 (1931).

20 JOSEPH E. STEVENS, HOOVER DAM: AN AMERICAN ADVENTURE (1988).

21 Judicial notice is a means by which a court can determine certain facts are indisputable. This precludes the need for evidence to be presented to prove them, and these facts cannot be contested during trial. See Fed. R. Evid. 201.

22 Arizona v. California, 283 U.S. 423.

23 Id.

improve the navigability of the river, the Court could not challenge Congress’ stated purpose. The Court also could not deny the federal government’s power to regulate navigable waters by speculating on Congress’ true motive in passing the legislation, as held in Chandler-Dunbar. Moreover, the Court held that any other purpose the dam served outside navigation did not necessarily detract from the federal government’s ability to complete the project.24 United States v. Chandler Dunbar had already established that the Court was very limited in questioning for what purpose Congress’ commerce powers were being exercised. Arizona v. California was further specific by cementing that the Court could not question the motives that prompted Congress to enact such legislation, and that the “Court may not assume that Congress had no purpose to aid navigation.”25 In other words, because Congress stated the purpose of the project was to improve the navigability of the river, the Court had to operate under the assumption that the project indeed was intended to improve navigability.

C. The Court Weighs Federal Powers and State Interests

While the doctrine of navigable servitude had certainly developed in favor of the federal government, there were still areas of this doctrine that required clarification. This included the exact boundary between questions of law and questions of policy. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co. considered whether the federal government still had the same power to erect dams if states could show real damages that would result from the project. This case involved the construction of the Denison Dam on the Red River in Oklahoma, which was authorized by Congress as part of the Flood Control Act of 1938. The state of Oklahoma sought to block the construction of the dam and sued Guy F. Atkinson Co., which was under contract by the federal government to complete construction of the dam. Oklahoma asserted that the construction plan would flood 6,800 acres owned by the state and the flooding of other areas would deprive the state of tax revenue. The state of Oklahoma sued, arguing that 24

construction of the Denison Dam was a violation of the state’s sovereignty under the Tenth Amendment. The federal water project on the Red River was also in direct conflict with a planned state water project on the same waterway. The Court ruled against Oklahoma, holding that the project did not violate the state’s sovereignty and that the construction of the Denison Dam was a proper exercise of Congress’ commerce powers.26

The Court found that the state of Oklahoma’s loss of property and tax revenue were state interests that had to bend to the constitutional right of the federal government to regulate commerce.27 It also found the state of Oklahoma’s planned water project was in conflict with the federal water project, but since the federal government’s right to regulate commerce superseded any state interest, the state water project had to be abandoned in favor of the federal project. The fact that parts of the Red River were no longer used to facilitate commerce did not affect Congress’ power to regulate them as parts of a navigable waterway.28 This is parallels Arizona v. California, in which the Court found that commercial disuse does not negate the navigability of a river. In Atkinson, the Court reaffirmed this focus on the navigability of a river rather than its use in commerce as the determining factor in Congress’ authority over the waterway. Congress’ authority over the waterway in question was due to the assertion in Gibbons that navigation is included in commerce. Whether or not the Denison Dam would improve interstate commerce or flood control, or if Oklahoma’s plan would be better suited for such a purpose, was not a question the Court could properly answer.29 It was a legislative matter decided by Congress, and the Court could not stop the project on the basis that it did not believe the dam sufficiently aided commerce or provided flood control.

In the relationship between state and federal powers on water projects, Atkinson is a landmark case. Its findings very clearly assert that federal powers over interstate commerce, and by extension, the regulation of navigable waters, supersedes any state interests. It also reaffirms the findings in Chandler-Dunbar

27

28

29

26 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).

Id. at 534.

Id. at 523.

Id. at 509.

and Arizona v. California that whether the actions of the federal government actually improve or impede interstate commerce is not a question the courts can answer.

Importantly, the court found that “whether the work of flood control would be better done by a dam of one design or another was for Congress to determine.”30 This further reinforced Arizona v. California’s holding that the Court cannot rule on “whether the resulting benefits to commerce will outweigh the costs of the project.” 31 Whether the design of the dam itself meets Congress’ goals is again, not a judicial question.

D. Building Dams is a Constitutional Rights Held by Congress

These cases outline very broad powers the federal government has in regulating navigable waters and building dams and reservoirs. Chandler-Dunbar established strong federal powers in improving the navigation of federal waterways and limited the Court’s ability to question the motives of Congress in improving navigation when dealing with navigable servitude cases. Arizona v. California reaffirmed these limitations on the Court as well as finding that Congress has the power to authorize the construction of dams over the objections of a state. Atkinson clarified Congress’ powers when dealing with states, including that federal commerce powers supersede any state interest. Moreover, Atkinson expressed that the Court cannot question the effectiveness or motives of Congress’ water plan when deciding whether Congress properly exercised its powers.

These three decisions give Congress the authority to build or remove structures on navigable waters as long as their stated purpose is improving navigability. In this pursuit, state powers must bend to the federal initiative. However, these powers, though protected by the Court, are solely held by Congress. In cases where executive agencies would try to lead dam construction, the Supreme Court would find these agencies could not simply borrow Congress’ commerce powers. The Court would later establish that the vehicle

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

through which executive agencies build a large number of these reservoirs, namely the Reclamation Act of 1902, had its own self-imposed limitations that further constrained the power of the executive.

III. The Limitations of Executive Power

While the Court had previously given broad powers to the federal government in relation to the creation and regulation of water infrastructure, these powers are not without limits. Most of these limitations fall on the authority executive agencies have to act on Congress’ behalf. Several Supreme Court cases and Ninth Circuit Court of Appeals rulings concerning federal water projects in the Western United States significantly restrict the ability for the executive branch to act independently of Congress in building dams or controlling the allocation of water.32 Further restrictions were placed on executive agencies by the Reclamation Act of 1902. The Reclamation Act was passed to expand water infrastructure in the American West but has a number of restrictions that limit the power executive agencies have when dealing with state agencies. Specifically, the Reclamation Act instructs the executive to comply with state laws when they do not conflict with congressional mandates.33 This limitation on the executive revealed itself in the litigation surrounding a water project in the state of Arizona. While Congress had been successful in overruling the state’s objections to build the Boulder Dam, the Secretary of the Interior would be less successful in trying to build a dam without congressional approval.

32 See California v. United States, 438 U.S. 645 (1978) (“Under the clear language of § 8 and in light of its legislative history, a State may impose any condition on ‘control, appropriation, use or distribution of water’ in a federal reclamation project that is not inconsistent with clear congressional directives respecting the project”); United States v. Cal. St Water Res. Control Bd., 694 F.2d 1171, 1177 (9th Cir. 1982) (“In the case before us, therefore, a state limitation or condition on the federal management or control of a federally financed water project is valid unless it clashes with express or clearly implied congressional intent or works at cross-purposes with an important federal interest served by the congressional scheme”).

33 Lowlands Reclamation Act of 1902, Pub. L. No. 57-161, § 8, 32 Stat. 388 (codified at 43 U.S.C. § 391) [hereinafter Lowlands Reclamation Act].

A. The Executive Branch is Limited in Acting on Behalf of Congress

In 1935, the state of Arizona sought to stop the construction of yet another dam on the Colorado River between Arizona and California. In this instance, it was the Department of the Interior, not Congress, that had authorized the dam. The Supreme Court had to consider whether the powers it afforded Congress in its 1931 ruling also applied to executive agencies like the Department of the Interior.

In United States v. Arizona, the federal government argued that the Colorado River was a navigable waterway and that the Secretary of the Interior had the authority to construct the dam over the state’s objections. This time, the Court sided with Arizona, reasoning that it was not executive agencies, but Congress that possessed the right to regulate navigable waters.34 While the waterway in question was in fact navigable and therefore the construction of the dam would fall under Congress’ commerce powers, Congress had not specifically authorized the construction of the dam in question. The Secretary of the Interior had no right to begin construction without Congress’ express approval. While the Court made clear that they were not attempting to scale back Congress’ powers over navigable waters, holding that “the United States has constitutional power to construct the dam in aid of navigation and flood control,” the Court nevertheless sought to set very clear limits on what the executive could do in Congress’ absence.35 In this case, the Court said that “the Administrator of Public Works (the Secretary of the Interior) is without authority to build the dam in the absence of a showing of prior approval of Congress.”36 The Court further emphasized that it is unlawful for private entities to build a dam in navigable waters without the consent of Congress.37 The Court found that this rule applied to government agencies as well as private citizens. In other words, under the precedent in United States v. Arizona, executive agencies had to obtain specific consent from Congress if they aimed to construct dams without the permission of the state and, furthermore, could

34 United States v. Arizona, 295 U.S. 174 (1935).

35 Id. at 176.

36 Id. at 178.

37 See 33 U.S.C. § 401.

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

not act on Congress’ behalf in approving water projects. This ruling severely limited the power of executive agencies to act independently of Congress in exercising commerce powers over navigable waters.

B. The Reclamation Act of 1902 is Not an Assertion of Navigable Servitude

The Court’s ruling in United States v. Arizona constrained the executive’s ability to build dams without congressional supervision. However, under the Reclamation Act of 1902, executive agencies were still able to continue to build dams due to the broad latitude this act afforded the executive in building dams and reservoirs in Western states. However, the executive’s powers under this act would also be limited by the Supreme Court in United States v. Gerlach Live Stock Co.

This case concerned the construction of the Friant Dam in California, where many downstream landowners had the flow of water to their properties restricted which consequently reduced their property values. In Gerlach, these riparian38 landowners sued the Bureau of Reclamation, who had constructed the dam, for compensation that California guaranteed to them under state law. The federal government responded by saying that the construction of the dam was an exercise of its commerce powers, and the landowners were entitled to no compensation. The fact that the state of California guaranteed that they were entitled to compensation was overridden by federal authority.

The Court in Gerlach ruled in the landowners’ favor, holding that they were entitled to compensation under state law.39 The circumstances in Gerlach were very similar to the case United States v. Rands, in which the federal government built a dam that decreased the property value of riparian landowners. However,

38 Riparian landowners are landowners whose property is on the banks of a river or other waterway. See e.g., Movrich v. Lobermeier, 379 Wis. 2d 269, 283–84 (Wis. 2018) (“Riparian rights may include ‘special rights to make use of water in a waterway adjoining [an] owner’s property.’ We have previously recognized that common law riparian rights may include: ‘[t]he right to reasonable use of the waters for domestic, agricultural and recreational purposes; the right to use the shoreline and have access to the waters; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, now conditioned by statute, to construct a pier or similar structure in aid of navigation” (internal citations omitted)).

39 United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

in both Rands and United States v. Twin City Power Co., the Court held the opposite of Gerlach, asserting that riparian landowners were not entitled to any kind of compensation when Congress exercised its power over navigable waters.40 Specifically, in both Rands and Twin City Power, the Court ruled in favor of the federal government. While the rulings in Rands and Twin City Power seemingly contradict Gerlach, they ultimately did not overturn Gerlach’s holding.

The explanation for this contradiction lies within what rights Congress did and did not assert in the language of the Reclamation Act of 1902. The government built the Friant Dam under the authority of the Reclamation Act of 1902, which was an act of Congress designed to build a system of reservoirs in the American West. The Court in Gerlach reviewed the language of the Reclamation Act and found that Congress’ express intent in the act was not to improve navigation but rather to improve irrigation – which was a break in the language Congress used when asserting its commerce powers.41 Because Congress made no mention of improving navigation in the act, the Court found that Congress was not asserting its commerce powers in this act, as it did in Rands and Twin City Power, but its power over eminent domain, which comes from the Fifth Amendment and not the Commerce Clause. The Act also stated that it was not intended to interfere with state laws and directed the Secretary of the Interior to comply with state laws when possible.42 This effectively meant that Congress was limiting the federal government’s powers through this Act. While federal powers supersede those of the state, Congress had directed the executive to respect state laws in applications of the Reclamation Act. Given these provisions in the Reclamation Act, the Court found in Gerlach that

40 See United States v. Rands, 389 U.S. 121, 122–27 (1967) (“The interests of riparian owners are subject to the Government’s power to control navigable waters and the proper exercise of that power is not compensable under the Fifth Amendment”); United States v. Twin City Power Co., 350 U.S. 222, 225–26 (1956) (“The fact that the land does not lie in the bed of the river nor below high water, but above and beyond the ordinary highwater mark, does not entitle the owner to compensation based on a value in the flow of the stream”).

41 See Gerlach Live Stock Co., 339 U.S. at 739 (“Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress”).

42 Lowlands Reclamation Act, § 8; 43 U.S.C. § 391.

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

“Congress did not intend to invoke its navigation servitude…and has not attempted to take, or authorized the taking, without compensation, of rights valid under state law.”43 Because Congress had not asserted its navigation powers, as in Rands or Twin City Power Co., but had given the executive limited powers and instructions to comply with state law, the landowners in Gerlach were in fact entitled to compensation.

The Reclamation Act did not use the language of improving navigation that was present as justification in cases such as Arizona v. California and Atkinson, and consequently, Congress did not assert its commerce powers in the Act. This meant that Congress was not loaning executive agencies its absolute power over navigable waters, but instead, the power to exercise eminent domain in the scenarios (i.e. improving irrigation) specified by the Act. Congress also specifically directed in the Act that executive agencies had to comply with state laws. Because executive agencies utilize the Reclamation Act as the primary avenue through which to build dams and reservoirs, the ruling in Gerlach placed executive agencies in a weaker position. The precedent in Gerlach meant that federal agencies, rather than borrowing the broad navigation powers of Congress, were in fact operating off of a specific congressional mandate that ordered them to comply with state sovereignty and law.

C. States Can Impose Conditions on Federal Water Projects

Although Gerlach established that the federal government had to comply with state law when acting under the Reclamation Act, the Court did not clarify if this meant the federal government only had to observe state statutes and rulings by state courts, or if state agencies were included as part of state authority. The Court addressed this uncertainty in California v. United States, a case that came out of a dispute between California and the U.S. and also involved the Reclamation Act. After the construction of the New Melones Dam in California, the federal government sought to hold water that had not yet been appropriated by the state of California in the dam. The California Water Resources Control Board granted the Bureau of Reclamation a permit for the

43 Gerlach Live Stock Co., 339 U.S. at 726.

unappropriated water with a set of conditions. The United States sued, saying that it was entitled to any unappropriated water needed for the New Melones project with or without the consent of the state of California.

The case was appealed to the Supreme Court from the Ninth Circuit Court of Appeals. The Court ruled that the United States had to apply for a permit to impound the water, and that the state of California could impose conditions as part of the permit.44 The Court, however, declined to rule on whether the conditions were in conflict with congressional directives, only that the state had the right to impose conditions as long as they did not conflict with congressional directives.45

To justify this ruling, the Court pointed to the language of the Reclamation Act of 1902, saying that the state could impose “conditions in this case that are not inconsistent with congressional directives.”46 This claim reaffirmed Gerlach’s finding that the Reclamation Act required that executive agencies comply with state laws when building and operating reservoirs. The Court held that the state had the right to impose conditions as part of the permitting process. Because the right of the California Water Resources Board to attach these conditions was protected by state law, executive agencies had to observe this right under the language of the Reclamation Act.47 California v. United States built on Gerlach by binding executive agencies to the decisions of state agencies in addition to state law. This further expanded the power of states over executive agencies acting under the Reclamation Act and increasingly limited the actions executive agencies could take without explicit congressional directives.

44 California v. United States, 438 U.S. 645 (1978).

45 Id. at 646.

46 Ibid.

47 See id. at 675 (“It also requires the Secretary to comply with state law in the ‘control, appropriation, use, or distribution of water.’ Nor, as the United States contends, does § 8 merely require the Secretary of the Interior to file a notice with the State of his intent to appropriate but to thereafter ignore the substantive provisions of state law. The legislative history of the Reclamation Act of 1902 makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law. The Government's interpretation would trivialize the broad language and purpose of § 8” (internal citation omitted)).

D. Navigable Servitude is Not a Right Held by the Executive

While the Supreme Court very broadly interpreted the Commerce Clause to give Congress near absolute powers over navigable waters in decisions such as Arizona v. California, subsequent rulings, such as Arizona v. United States, found that this power belongs only to Congress and not the federal government at large. In essence, whatever dam projects the executive wanted to pursue would have to be approved by Congress.

Executive agencies, such as the Bureau of Reclamation, were able to continue building dams under the authority of the Reclamation Act of 1902, which gives the executive permission to build reservoirs in the American West. However, these executive powers were limited in Gerlach, when the Supreme Court held that the Reclamation Act did not grant executive agencies power over navigable waters but rather fell within the purview of their eminent domain powers. Gerlach also found that the Reclamation Act required executive agencies to follow state law, a holding which was expanded in California v. United States to also require executive agencies to comply with state agencies. These rulings largely ended the executive’s ability to act outside of Congress and left them at the mercy of decisions made by state courts and agencies on matters of initiated water projects. Executive agencies would be put under even more restrictions as Congress passed a slate of environmental laws in the 1970s, calling into serious question the viability of building new reservoirs through the executive branch.

IV. The Clean Water Act and its Implications on Future Dam Construction

A significant development since the last era of large-scale dam construction was the passage of a slate of environmental laws in the 1970s, among them the Clean Water Act (CWA).48 The CWA was passed into law in 1972 and set standards for water pollutants and water quality in “navigable waters,”49 defined as “waters of the United States.”50 The goal of the CWA was to

48 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. 1251 et seq.) [hereinafter Clean Water Act of 1972].

49 33 U.S.C. §1251(6).

50 33 U.S.C. §1262(7).

eliminate the “discharge of pollutants” into navigable waters.51 While the CWA was created with these goals in mind, the clean water standards set forth in the CWA could potentially hamper new dam construction by the executive.

A. The Burdens the CWA Places on Dam Constructions and the Case of the Two Forks Dam

The CWA, primarily legislation to clean up the nation’s waterways, sets standards for water quality for the “Waters of the United States.”52 Although seemingly divorced from the construction of new dams or the expansion of those already constructed, the requirement for an Environmental Impact Study (EIS) may threaten the expansion of federal water projects. An EIS is required for the construction or operation of new facilities which may not only result in any discharge into the navigable water and but could also result in the delay or denial of such water projects. In the case of the Two Forks Dam project, the EIS for this project was eventually rejected. The Two Forks Dam was proposed by the Denver Board of Water Commissioners (DWB) and the Metropolitan Water Providers (MWP) and would be located on the South Platte River. In March 1990, the Environmental Protection Agency submitted their Recommended Determination to Prohibit Construction of Two Forks Dam and Reservoir Pursuant to Section 404(c) of the Clean Water Act (hereinafter Rejection) determining that the area that would be inundated by the Two Forks Dam was “unique and irreplaceable.” 53

The rejection of proposed construction and the subsequent fate of the Two Forks Dam could well befall any executive dam construction project that requires a permit from the Army Corps of Engineers pursuant to the CWA. Because the CWA introduced new legal obstacles to the dam construction process, the contentious nature of the Two Forks Dam demonstrates yet

51 33 U.S.C. §1403(c)(2).

52 Id.

53 ENV’T PROTECTION AGENCY, RECOMMENDED DETERMINATION TO PROHIBIT CONSTRUCTION OF TWO FORKS DAM AND RESERVOIR PURSUANT TO SECTION 404(C) OF THE CLEAN WATER ACT (1990), https://www.epa.gov/sites/default/files/2015-05/documents/twoforksrd.pdf. See also Env’t Protection Agency, Proposed Determination to Prohibit, Restrict or Deny the Specification, or the Use for Specification, of an Area as a Disposal site on the South Platte River, 54 Fed. Reg. 36826, 36870 (Sept. 5, 1989).

FEDERAL POWERS OVER CONSTRUCTION OF DAMS AND RESERVOIRS

another legal vulnerability in the executive’s ability to build dams without specific directives by Congress. This instance of the executive facing difficulties in exercising their power to build dams is predictive of what would happen to future projects initiated without congressional mandate.

B. The CWA and Clear Directives from Congress

These constraints placed on the executive by the CWA would likely not be binding on congressional powers to build dams and reservoirs. The effect the CWA would have on legislation such as the Boulder Canyon Project Act of 1928 as in Arizona v. California if it were passed today requires speculation as no such legislation has been passed since the CWA was enacted. The Act was a clear assertion of its constitutional powers bestowed by the Commerce Clause as the Act was for the purpose of “improving navigation” among other things.54

It is unlikely that such legislation would be required to obtain a permit from the Army Corps of Engineers or be subject to any of the restrictions of the CWA at all. As a constitutional right, Congress’ power over navigable waters cannot be restricted by statute. It follows that an act of Congress authorizing dam construction with the express intention of improving navigation is an assertion of Congress’ constitutional right to regulate commerce and is not bound to standards set by the CWA. This further demonstrates the vast difference in congressional and executive powers when building dams and reservoirs. While the executive can be impeded or stopped entirely by state laws or environmental regulations, like in the case of the Two Forks Dam, Congress can effectively ignore these restrictions. The obstacles presented by the CWA represent an asymmetry in the judicial interpretation of federal water rights, highlighting the

54 See Arizona v. California, 283 U.S. 423 (1931) (“The Boulder Canyon Project Act, December 21, 1928, authorizes the Secretary of the Interior, at the expense of the United States, to construct at Black Canyon on the Colorado River, a dam, a storage reservoir, and a hydroelectric plant; provides for their control, management, and operation by the United States; and declares that the authority is conferred ‘subject to the terms of the Colorado River Compact,’ ‘for the purpose of controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses exclusively within the United States, and for the generation of electrical energy as a means of making the project herein authorized a selfsupporting and financially solvent undertaking’”).

different treatments to congressional and executive bodies in existing jurisprudence. These circumstances demand a consideration as to what avenues, executive or congressional, the Court has afforded the federal government power in responding to water shortages through new dam construction.

V. Options for Federal Action in Expanding Water Infrastructure and their Legal Limitations

With these precedents and statutes in mind, the Court has enumerated two options through which the federal government can pursue the construction of new dams and reservoirs – one with more legal restrictions than the other. The first is through executive agencies under the Reclamation Act. The other is specific acts of Congress, like the process through which the Boulder and Denison Dams were constructed. The courts must hold the federal government to different restrictions under each of these avenues, since the executive is borrowing congressional authority in the former and Congress is asserting a constitutional right in the latter. In acting under the Reclamation Act of 1902, executive agencies face many legal restrictions, both from federal environmental standards and a responsibility to observe state law. These restrictions, however, do not similarly bind Congress when it asserts its power of navigational servitude in order to build new dams.

A. Obstacles Associated with Executive Agencies Acting Through the Reclamation Act

The first option the federal government has when building dams is through the Reclamation Act of 1902. The Reclamation Act is the main avenue through which the executive may build dams and reservoirs without an explicit directive from Congress. However, this endeavor is laden with legal challenges. As found in United States v. Gerlach Live Stock Co., the federal government does not enjoy the same powers it has under navigable servitude when operating under this act.55 This obstacle is because the Court found Congress was not asserting its

55 United States v. Gerlach Live Stock Co., 339 U.S. 725, 739 (1950).

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powers over navigable waters in the Reclamation Act, but rather eminent domain. Therefore, because the construction of the dam concerned powers over eminent domain and not powers over navigable waters in question, federal bodies were not acting under the doctrine of navigable servitude where they historically enjoyed broad latitude. California v. United States expanded on this by binding executive agencies to state law when acting under the authority of the Reclamation Act unless Congress specifically directed otherwise.56

The Supreme Court has consequently paralyzed executive agencies trying to build new dams and reservoirs through the Reclamation Act when states object to their initiatives. After the Supreme Court’s ruling in California v. United States, the Ninth Circuit Court of Appeals and the District Courts in the Ninth Circuit have largely bound federal agencies to observing state law when pursuing construction on new dams, renovations on existing dams, and water allocation.57 These judicial restrictions imposed by the Court significantly limit the power of executive agencies to build new dams or raise existing ones under the Reclamation Act when acting against state law.

B. Legal Evaluation of Congressional Action on National Water Projects

While the executive is faced with many restrictions when building dams and reservoirs, Congress enjoys greater powers when doing so. Clear and specific directives by Congress is the second method through which the Court has

56 California v. United States, 438 U.S. 645 (1978).

57 See, e.g., United States v. Cal. State Water Res. Control Bd., 694 F.2d 1171, 1177 (9th Cir. 1982) (“In the case before us, therefore, a state limitation or condition on the federal management or control of a federally financed water project is valid unless it clashes with express or clearly implied congressional intent or works at cross-purposes with an important federal interest served by the congressional scheme”); United States v. State Water Resources Control Bd., 182 Cal.App. 3d 82, 101 (Cal. Ct. App. 1986) (“It is equally axiomatic that once rights to use water are acquired, they become vested property rights. As such, they cannot be infringed by others or taken by governmental action without due process and just compensation”); Nat. Res. Def. Council v. Patterson, 791 F. Supp. 1425, 1433 (E.D. Cal. 1992) (“The natural reading is that Section 8 protects from federal interference both those state laws which have a connection with the control, appropriation, use or distribution of water used in irrigation, and individual rights which have vested under those, or any other, laws”); Nat. Res. Def. Council v. Patterson, 333 F. Supp. 2d 906, 922 (E.D. Cal. 2004) (“Even if this court were to decide the question ab initio, the result would be the same. This is so because (1) D-935 itself did not address the merits of plaintiffs’ claim; (2) California law does not confer exclusive jurisdiction on the Board; and (3) the Board's decision is not entitled to preclusive effect under the doctrines of res judicata or collateral estoppel”).

allowed the federal government to expand water infrastructure in the United States. In cases such as Arizona v. California and Atkinson, the Court afforded very broad powers to Congress when it asserted its navigation powers over navigable waterways. Arizona v. California held that the constitutional right of the federal government to regulate waterways extends to construction of dams and reservoirs.58 Atkinson went on to say that because the right of Congress to build dams over navigable waters is a constitutional one, any state interest (i.e., loss of land, tax revenue, mineral resources, etc.) must bend to the federal interest.59

In both cases, the Court made clear that the judiciary could not question the motives of Congress when asserting its commerce powers. In the current landscape of Congress’ commerce powers, states cannot block Congress’ lawful exercise of these powers, even when the actions of Congress conflict with state law. This power is reaffirmed in California v. United States, when the Court noted that, while the state of California had the power to impose conditions on executive agencies, the state was powerless to interfere with clear congressional directives.60 The state of California was only able to place restrictions on the Bureau of Reclamation’s water license because Congress had not directed otherwise. As such, while the Court has historically restricted actions of the executive when functioning on behalf of Congress,61 the Court has done quite the opposite on the actions of Congress itself.

Congress’ navigation powers also have special exemptions written into the CWA. While executive agencies are bound to CWA standards when pursuing dam projects, the CWA specifically exempts Congress and the Army Corps of Engineers from these standards if they are improving the navigability of a waterway.62 If Congress were to pursue the further expansion of water infrastructure through the language of improving navigation, existing precedent and statutory exemptions surrounding navigable servitude grant Congress broad latitude in dealing with the water crisis.

58 Arizona v. California, 283 U.S. 423 (1931).

59 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).

60 California v. United States, 438 U.S. at 645.

61 See, e.g., Arizona v. California, 283 U.S. at 423.

62 33 U.S.C. §1251(11)(a).

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C. The Court’s Obligations to Federal Action on Water Shortages

The Court, through the Reclamation Act and their interpretation of the executive’s powers, have restricted executive agencies from taking a larger role in managing water shortages through the building of dams and reservoirs. However, existing jurisprudence and interpretation of legislation such as the CWA demonstrates that congressional powers remain authoritative. Given the precedent set by cases such as Atkinson and Arizona v. California, the courts must recognize the ability of Congress to build dams with or without state approval as a constitutional right under the Commerce Clause. The courts must continue to enforce environmental standards on water projects undertaken by executive agencies and hold them to state laws when they do not directly conflict with congressional directives.

Conclusion

In responding to the present water crisis through the construction of new dams and reservoirs, the Court has evaluated and imposed separate legal limitations on the options available to the federal government. The Court has afforded Congress broad constitutional powers when regulating waterways. For these expansive powers to be triggered under the doctrine of navigable servitude, congressional regulation of waterways requires acts with the stated goal of improving navigation. However, Congress’ reliance on executive agencies to lead dam construction has resulted in courts imposing a number of legal restrictions, including a duty to comply with state laws where they do not interfere with congressional directives.

When considering federal efforts to construct a dam against the state interest, courts must recognize the differing constitutional rights and limitations afforded to different federal bodies. Through existing jurisprudence, the Court has created an avenue through which the federal government can achieve its newly reaffirmed goal of taking a larger role in managing the national water crisis of the 21st century.

UCLA UNDERGRADUATE LAW JOURNAL

Janet Zamudio*

The Intersection Between Federal Agencies, Climate Change, and Environmental Justice: An Analysis of West Virginia v. Environmental Protection Agency and its Implications

ABSTRACT. The current state of climate change and environmental justice is continuously evolving. With local, state, and federal environmental entities working against the constant threats of climate change and environmental injustice, it is of great concern to examine the U.S. Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency (EPA). Despite the precedent set by the Clean Air Act of 1963, the provisions in the amended Clean Air Act of 1990, Brown v. EPA, Massachusetts v. EPA, and American Electric Co. v. Connecticut the EPA’s authority to regulate greenhouse gas emissions in the private sector was halted. The Court’s rationale is inconsistent and contradictory when compared to its previous rulings. In addition to this, the Court invokes the Major Questions Doctrine (MQD), which will only further develop judicial restrictions on federal agencies. With irrefutable legal and policy implications, it is necessary to establish an Environmental Justice Doctrine in a future Court ruling to render West Virginia v. EPA invalid. The argument set forth in this article will illuminate the inconsistency created by the West Virginia v. EPA decision and emphasize the necessity to overturn the MQD. The legal and policy proposal of overturning the MQD intends to open the door for new climate-change-based policies and impose necessary environmental regulations.

* Janet Zamudio is a 4th year double major in Public Affairs and Geography. Janet plans to apply to law school after graduation and aspires to become an environmental attorney.

Gali Hoffman is a 4th year Political Science major at UCLA. She plans to attend law school and is primarily interested in immigration and environmental law. She is very grateful to have been able to edit for the UCLA Undergraduate Law Journal for the past two years!

THE INTERSECTION BETWEEN FEDERAL AGENCIES, CLIMATE CHANGE, AND ENVIRONMENTAL JUSTICE

Introduction

There is an increasing concern about how world leaders and governments aim to address the issue of climate change and environmental justice. For example, Bolivia is advancing forward against climate change by establishing Mother Earth as an entity with its own rights under their constitution.1 On the other hand, the United States is regressing in respect to climate change; climate change prevention efforts, environmental justice movements, and environmental regulations are consistently undermined. In the U.S., environmental justice is the fight for fair treatment and meaningful involvement of all people regardless of race, national origin, gender, or income in relation to the development, implementation, and enforcement of environmental legislation.2 Without strong enforcement of environmental regulations on all government levels, low-income and Black and Indigenous People of Color (BIPOC) communities feel the heightened effects of polluters; this is the result of close proximity to hazardous sites, disproportionate exposure to air pollution sites as freeways, little to no green spaces, and more.3 A critical case exemplifying this disregard for climate change, environmental justice, and environmental regulation is West Virginia v. Environmental Protection Agency (2022).

This article will explore West Virginia v. EPA’s past, present, and future while establishing a strong basis for environmental regulation within the law. Part I analyzes the evolution of environmental regulation in the U.S. Part II gives background on the judicial cases that created the initial precedent on environmental regulation and the jurisdiction of the Environmental Protection Agency (EPA). Part III presents the ruling, new precedent, and contradictions

1 See Framework Law of Mother Earth and Integral Development for Living Well, Law No. 300, https://www.documentcloud.org/documents/7220617-Framework-Law-of-Mother-Earth-andIntegral (Bol.).

2 Environmental Justice-Related Terms As Defined Across the PSC Agencies 1–16, ENV’T PROT AGENCY (May 13, 2013), https://www.epa.gov/sites/default/files/2015-02/documents/team-ejlexicon.pdf [hereinafter Environmental Justice-Related Terms].

3 Robert D. Bullard, Dismantling Environmental Racism in the USA, 4 INT’L J. JUST. & SUSTAINABILITY 5, 5–19 (1999).

created by the decision in West Virginia v. EPA. Following this, Part IV examines the legal and policy implications of the precedent set in this case. Lastly, Part V proposes an alternative to the West Virginia v. EPA ruling and a new test for determining when the EPA has authority over carbon emissions. The argument set forth in this article will not only emphasize the inconsistent decision made by the Court but also highlight how detrimental this case is to environmental justice and climate change efforts.

I. Origins of Federal Environmental Regulation on Air Quality

Comprehension of the legislative foundation for environmental regulation is essential to apprehending the background of West Virginia v. EPA and Congressional action against climate change. The most prominent legislation, in this case, are the Clean Air Acts of 1963 and its 1990 amendment.

A. The Clean Air Act of 1963

The Clean Air Act (CAA) of 1963 is foundational for environmental regulation and the establishment of the EPA. The CAA of 1963 is a federal law created to control air pollution.4 This law aims to establish federal guidelines, regulations, and enforcement of six issues: programs and activities, general provisions, noise pollution, acid deposition control, permits, and stratospheric ozone protection.5 Under Title I Programs and Activities, the CAA aspires to protect the nation’s air quality, promote public health, and urge prevention of regional air pollution and control programs. 6 The first version of the CAA did not include any language surrounding emissions, but the phrase “air pollution” is used by the Court in later rulings to establish regulation against greenhouse gas (GHG) emissions.7 The CAA added to the Act in 1990 to clarify the vagueness of the original wording, and these changes are essential to the argument in West Virginia v. EPA

4 See Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392.

5 Ibid.

6 Id. at 393.

7 See, e.g., EPA v. Brown, 431 U.S. 99 (1977) (per curiam).

THE INTERSECTION BETWEEN FEDERAL AGENCIES, CLIMATE CHANGE, AND ENVIRONMENTAL JUSTICE

B. The Clean Air Act Amendment of 1990

In 1990, the CAA was amended to include stronger language surrounding air pollution. Under the new provision, the EPA is highlighted as the entity to set health-based standards for ambient air quality.8 In Section 101 for general provisions requirements, the EPA establishes national emission standards for large or ubiquitous sources of air pollution (motor vehicles, power plants, and other industrial sources); mandates emission controls for 187 hazardous air pollutants; establishes a cap-and-trade program to limit acid rain; requires the prevention of significant deterioration of air quality in areas with clean air; and other air regulations.9 It is clear that Congress is emphasizing the necessity for environmental regulation of air pollution through the addition of this provision.10 In line with the clarified CAA wording, Supreme Court cases prior to West Virginia v. EPA also reflect the necessity of environmental regulation related to air pollution.

II. The Development of EPA Jurisdiction in the Supreme Court

The development of environmental regulation in the Court laid the groundwork for how the EPA and state governments can legally address environmental issues. This section examines EPA v. Brown (1977), Massachusetts v. EPA (2007), and American Electric Power Company v. Connecticut (2011).

A. Environmental Protection Agency v. Brown (1977)

EPA v. Brown was one of the first Court rulings to decide whether the EPA has jurisdiction over environmental regulation. In an 8-1 decision, the Court ruled that it would not review judgments from the Ninth Circuit Court of Appeals in relation to transportation control plans and emphasized that the EPA

8 See Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399.

9 Id. § 101.

10 Ibid.

has the authority to regulate air pollution from public transportation under the CAA of 1963.11

The CAA of 1963 required states to develop a maintenance program relating to vehicle registration in Air Quality Control Regions, create programs pertaining to older vehicles in order to minimize their emissions, enforce bus and carpool lanes, devise a plan to monitor emissions produced by programs, and adopt other programs depending on State variation.12 If states did not comply with this regulation, then they would be subjected to civil action.13A number of states sued the EPA because they argued that these regulations were not within the mandate of the CAA. In the Court’s per curiam opinion, it stated that the judgment of the U.S Court of Appeals of the Ninth Circuit must be vacated because this case should be “remanded for consideration of mootness.”14 In other words, the Court expressed that the States do not have a valid legal argument because the challenge of the EPA’s authority over vehicle regulation is not up for debate. The Court conveys that this decision should not have reached the Court in the first place since the EPA’s authority over the enforcement of environmental regulation of state governments is protected under the CAA15 and reaffirmed in a previous Court decision.16 This decision created a judicial precedent that allowed the EPA to act on its own authority over environmental regulation and emphasized its ability to regulate the public sector's air pollution (meaning government-owned vehicles). Three decades later, the EPA’s authority to regulate the private sector’s air pollution would be addressed in Massachusetts v. EPA.

B. Massachusetts v. Environmental Protection Agency (2007)

Thirty years after the Brown decision, the authority of the EPA was challenged once again. Massachusetts and a variety of other states petitioned the

11 Brown, 431 U.S. at 103.

12 42 U.S.C. § 7401 (1963).

13 Ibid.

14 Brown, 431 U.S. at 104.

15 See 42 U.S.C. § 7413a-1.

16 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584–85 (1952).

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EPA to regulate GHG emissions on motor vehicles. At the time, the EPA was not doing this due to the belief that the regulation of GHG emissions for the purpose of combating climate change had a “political history” they did not partake in.17 In a 5-4 decision, the Supreme Court declared in Massachusetts v. EPA that GHG emissions do fall under the category of “air pollutants,” and the EPA did not adequately justify why they failed to regulate these emissions within motor vehicles.18 The Court emphasized that the CAA intentionally has vague language, and thus the EPA was not justified in delaying its decision on the basis of policy consideration.19

Chief Justice Roberts did not agree with this decision. Roberts argued that Massachusetts did not have the standing to sue the EPA because the potential injuries from climate change20 cannot be placed concretely on an individual entity.21 Roberts is consistent in his dissent that federal environmental regulation should not be guided by climate change. However, the 1990 provision of the CAA demonstrates the intention of limiting air pollution. A critical element of the added provision was to strengthen emission standards against motor vehicles.22 Under Section 109, the provision required the EPA to establish National Ambient Air Quality Standards (NAAQS) for air pollutants that “endanger public health or welfare.”23 The Court utilized this very same language in Massachusetts v. EPA, stating that Massachusetts has the authority to sue the EPA for its lack of GHG emissions because it can “cause, or contribute to, air pollution which may reasonably be anticipated to endanger

17 Massachusetts v. EPA, 549 U.S. 497, 512 (2007).

18 Id. at 497.

19 Ibid.

20 In his original dissenting opinion, Chief Justice Roberts refers to the issue of “global warming.” See, e.g., id. at 535 (Roberts, C.J., dissenting). Climate change is purposefully placed here to describe the massive dangers of all regions, not solely the warming of some regions. Global warming has since been proven an incorrect term to refer to the dangers of changing climates as a result of humans. While some may argue that exchanging global warming for climate change is political, I exchange global warming for its inaccurate description of what is happening scientifically to the world’s biomes, topographies, and climate regions.

21 Id. at 535–48 (Roberts, C.J., dissenting).

22 RICHARD K. LATTANZIO, CONG. RSCH. SERV., RL30853, CLEAN AIR ACT: A SUMMARY OF THE ACT AND ITS MAJOR REQUIREMENTS 8–9 (2022).

23 Id. at 6.

public health or welfare.”24 When writing the 1990 provision, Congress had in mind the effects of climate change on the community and recognized that a challenge to the regulation of GHG emissions is inconsistent with the safety and health of the public.

Despite Chief Justice Roberts’ dissent, Massachusetts v. EPA reaffirmed the Brown ruling while also adding that the EPA’s authority includes regulation of GHGs emissions under its “air pollutant” provision in the CAA of 1990.25 It is inaccurate to ignore the possibility of climate change when determining the jurisdiction of environmental agencies. At the time of the 1990 provision, Congress also enacted other climate change-related laws to establish the protection of the environment and of people. For example, the Global Change Research Act was passed in 1990, requiring a report to be sent to Congress every four years on the environmental, economic, health, and safety consequences of global change.26 Congress is not only aware of the critical importance of climate change but also goes as far as to invest in research on negative global environmental changes. The establishment of the CAA and its provision in 1990, in addition to other forms of legislation in Congress, were guided by the possible effects of climate change and the evolving necessity for environmental regulation.

C. American Electric Power Company, Inc. v. Connecticut (2011)

The Court upholds the EPA’s regulatory authority over carbon dioxide and other GHG emissions in American Electric Power Co. v. Connecticut. In 2011, the Court unanimously ruled that the regulation of GHG emissions is the responsibility of the EPA under the CAA.27 In addition to validating the Court’s decision in 2007, Justice Ginsburg adds, in the majority opinion, that the EPA

24 See Env’t Prot. Agency, Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52922 (Sept. 8, 2003).

25 LATTANZIO, supra note 22.

26 Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096 (codified at 16 U.S.C. § 2921 et seq.).

27 Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 425 (2011).

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can regulate carbon-dioxide emissions from fossil-fuel-fired power plants.28 Not only does the Court assert that the EPA has regulatory authority over carbon dioxide and other GHG emissions, but it also cites that the EPA has authority outside of motor vehicles’ production of GHG emissions. The Court’s holding in American Electric Co. verifies the EPA’s jurisdiction set forth in its previous decisions.

III. Analysis of West Virginia v. Environmental Protection Agency (2022)

This section examines West Virginia v. EPA’s background, ruling, precedent, and contradictions. After consistent rulings in favor of environmental regulation through the EPA, the Court makes an inconsistent ruling, leaving the door open to several major questions for future Court decisions and Congressional action.

A. Background

In 2015, President Barack Obama established the Clean Power Plan (CPP): a federal plan aiming to reduce carbon dioxide emissions from power plants, the number one polluter in the nation.29 However, President Donald Trump’s administration repealed the CPP in 2016, and within the same year, he implemented the Affordable Clean Energy (ACE) Rule. 30 Contrary to its name, the ACE rule does not aim to create affordable clean energy and leaves carbon emission standards up to state environmental agencies.31 Without a federal guideline to follow, state environmental agencies have less of an incentive to develop actions against environmental disasters, climate change, and environmental injustices occurring within their jurisdiction. The U.S. Court of

28 Id. at 420–29 (it is important to note that the Court was a 4-4 vote due to Justice Sotomayor’s decision to abstain from voting).

29 See Env’t Prot. Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662 (Oct. 23, 2015) [hereinafter CPP Regulation].

30 See Env’t Prot. Agency, Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32520 (July 8, 2019).

31 Ibid.

Appeals for the D.C. Circuit removed the ACE rule because it was deemed arbitrary and capricious.32 The North American Coal Corporation, in addition to the States of West Virginia and North Dakota, filed suit against the EPA for their authority to regulate GHG emissions.33

B. Ruling

In a 6-3 decision that contradicts previously mentioned cases, West Virginia v. EPA effectively eliminated the EPA’s authority to implement new regulatory air policies not clearly specified in the CAA. In the majority opinion, Chief Justice Roberts argues that the EPA does not have regulatory authority under the CAA over carbon dioxide through the Best System of Emission Reduction (BSER) through a generational shift approach: a measure where carbon emitters must shift away from electricity production using coal and natural gas fuel to other sources with fewer carbon emissions.34 Through this approach, the EPA aimed to reduce the use of coal in the Nation’s electricity generation by 2030.35 In order to achieve this, the EPA directed governors to produce state-specific plans to the EPA to describe how they would meet compliance requirements in this rule.36 If a state does not submit an implementation plan or is inadequate, then the EPA steps in to directly regulate power plants that fall under the CPP. In total, an estimated 3,000 electric-generated units and 1,100 facilities would have been affected by this proposal.37

Chief Justice Roberts invokes the major questions doctrine (MQD) as the legal reasoning for questioning the EPA’s authority surrounding the generational shift approach and future climate policies like it. The MQD involves the Court acting with a high degree of skepticism toward the actions of

32 Am. Lung Ass’n v. EPA, 985 F.3d 914, 967 (D.C. Cir. 2021).

33 Petition for a Writ of Certiorari, West Virginia v. EPA, 142 S. Ct. 2587 (filed Apr. 29, 2021) (No. 20-1530).

34 West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022).

35 Id. at 2604 (citing CPP Regulation, supra note 29, at 64665, 64694).

36 Ibid. (citing CPP Regulation, supra note 29, at 64815).

37 Ibid.

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a federal agency.38 Based on the Court’s logic, the MQD is invoked as a result of the possible “massive consequences” of the EPA’s attempt to regulate carbon dioxide emissions.39 Roberts emphasizes that this decision does not reverse the EPA’s ability to act on existing environmental regulations and regulate GHGs deemed fit in the CAA. Specifically in the CPP, the Court ruled that the EPA is allowed to implement a mercury rule cap-and-trade mechanism: a market-based program where a coal-fired power plant can trade its exceeding emissions to another plant that does not reach its own cap on mercury emissions.40 In the Court’s ruling, the EPA’s mercury cap-and-trade mechanism is allowed based on the plan’s “achievable technology,”41 but it is critical to note that the CAA’s 1990 provision directly points to the necessity of reduction of mercury.42 However, the Court’s ruling does not allow the EPA to expand the scope of its regulatory authority without explicit Congressional Authorization. The Court specifically highlights that the EPA cannot set nationwide standards for the U.S. electricity grid because it over-extends the CAA’s Section 111(d).43 The Court explains that 1) CAA’s Section 111(d) has rarely been used, especially in relation to carbon emissions regulations, and 2) CAA’s Section 111 (d) statute is merely a “gap filler.”44 According to West Virginia v. EPA, agencies only have the regulatory authority Congress grants them, and may not interpret relevant statutes (like the CAA) as they see fit. In other words, the Court rules that the EPA does not have the authority to implement the Clean Power Plan without first receiving Congressional Authorization because it overextends its power under the CAA. This landmark

38 Philip A. Wallach, Will West Virginia v. EPA Cripple Regulators? Not If Congress Steps Up, BROOKINGS INST. (July 1, 2022), https://www.brookings.edu/research/will-west-virginia-v-epacripple-regulators-not-if-congress-steps-up/.

39 West Virginia v. EPA, 142 S. Ct. at 2639.

40 Id. at 2610. Cf. Env’t Prot. Agency, Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28605 (May 18, 2005) (the so-called ‘Mercury Rule’).

41 West Virginia v. EPA, 142 S. Ct. at 2610.

42 Clean Air Act Amendments of 1990, § 104.

43 West Virginia v. EPA, 142 S. Ct. at 2610–13. See also Brief of Amicus Curiae Thomas C. Jorling in Support of Respondents 10–11, West Virginia v. EPA, 142 S. Ct. 2587 (2022) (No. 20-1530).

44 West Virginia v. EPA, 142 S. Ct. at 2610.

decision undermines the EPA’s power to implement the Clean Power Plan and develop new regulations against GHG emissions that are not explicit in the CAA.

C. Precedent

With this ruling, the Court impedes the EPA from being able to act outside of Congressional Authorization. Initially, the EPA aimed to create and implement new forms of regulation against GHG emissions; now, if the EPA wants to implement new environmental regulations, they must wait for Congressional Authorization through the passage of a new provision in the CAA (something that has not happened over the last three decades).45 With little to no promise of Congressional Authorization, the Court terminates the EPA’s ability to interpret law at their discretion.

The West Virginia v. EPA ruling contradicts previous Court rulings related to federal environmental regulation. The Court has undermined the only federal environmental regulator in the nation; there is no other federal entity that has the ability to regulate carbon emissions. While Justice Kagan does not cite Brown in her dissent, Brown’s ruling highlights that regulation of air pollution is to be interpreted by the EPA despite the broad language. Second, West Virginia v. EPA invalidates the logic set forth in Massachusetts v. EPA. While in Massachusetts v. EPA, the Court decided that the EPA does have authority over the regulation of GHG emissions in the private sector, now the EPA’s authority to regulate GHG emissions is compromised until Congress acts.46 West Virginia v. EPA’s reasoning is that the EPA does not have “traditional expertise” in the matter of electricity use,47 yet in Brown, where the Court affirmed the EPA’s authority over regulating motor vehicle emissions, the losing argument used a similar logic. In comparison to the American Electric Co. decision, West Virginia

45 Wallach, supra note 38.

46 Unlike West Virginia v. EPA, in Brown, the Court vacated previous lower court decisions and recognized that the EPA is the entity in power to regulation on vehicles in the U.S. While West Virginia v. EPA considers the regulation of power plants and their carbon dioxide emissions, it is compelling to see the difference between the allowance of regulating emissions from vehicles versus the annulment of regulation against corporate power plants.

47 West Virginia v. EPA, 142 S. Ct. at 2596.

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v. EPA does not clearly state how lower courts should continue with regulations of power plants for their GHG emissions. The contradicting logic of this ruling invalidates the judicial precedent set by Brown, Massachusetts v. EPA, and American Electric Co , and in the long run, leaves catastrophic legal and policy implications in the U.S.

Finally, West Virginia v. EPA develops the MQD precedent that would be used to impede actions by other federal agencies. In the case of West Virginia v. EPA, it stresses the importance of the MQD by affirming that it could be used to limit all federal agencies. The implications of this new precedent will be examined further in the following section.

IV. The Implications of West Virginia v. EPA

The West Virginia v. EPA decision fails to reach a ruling consistent with its predecessors and leaves behind numerous implications to be discussed. This decision leaves behind a negative, long-lasting impact on the public in respect to both legal and policy implications.

A. Legal Implications

1. Major Questions Doctrine

West Virginia v. EPA develops the MQD precedent that could be used to impede actions by other federal agencies. Another case that uses the MQD is Alabama Association of Realtors v. Department of Health and Human Services (2021).48 In 2020, the Centers for Disease Control and Prevention (CDC) enforced a nationwide temporary eviction moratorium for the COVID-19 pandemic in order to “prevent the introduction, transmission, or spread of communicable diseases.”49 The Alabama Association of Realtors filed suit

48 Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Serv., 141 S. Ct. 2485 (2021).

49 See Centers for Disease Control & Prevention, Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292 (Sept. 4, 2020). The moratorium was renewed a number of times. See, e.g., Centers for Disease Control & Prevention, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3,

against the CDC, and it led to the U.S. District Court for the District of Columbia authorizing an emergency block on the CDC’s eviction moratorium.50 Within the Court’s ruling, the MQD was applied as an independent principle of statutory interpretation. This is applied to ensure that Congress holds the responsibility when questions of major national implications are at play. 51 The application of the MQD is unsubstantiated and contradictory to previously mentioned Court rulings on federal agencies. The MQD can be interpreted as the conservative Court's attempt to prevent federal agencies from pursuing progressive action against climate change. With Congress in gridlock, a block from the Court can prevent the passing of any statutes they do not deem fit.

The West Virginia v. EPA decision fails to answer the MQD52 despite previous attempts to invoke this doctrine in other rulings. Chief Justice Roberts, alongside Justices Thomas, Kavanaugh, Barrett, Alito, and Gorsuch, do not effectively acknowledge how the EPA and other federal agencies will implement new policies, nor how local and state entities can continue to do so.53 This decision’s constitutional rationale is that agencies only have regulatory authority Congress grants them because they are ‘creatures of Congress,’ yet how can they exercise their power in unusual and unprecedented situations such as the everlasting effects of climate change?54 This contradiction leaves behind some crucial questions. Why is the rationale behind West Virginia v. EPA different from the establishment of the EPA’s regulatory authority in Brown? What authority does the EPA have to interpret outside of the clear language of the CAA? What implications does West Virginia v. EPA have on the EPA’s authority to regulate GHG emissions established in American Electric Co.? What becomes clear despite persistent questions is that the Court’s rationale behind this case is contradictory and inconsistent.

2021); Centers for Disease Control & Prevention, Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 86 Fed. Reg. 34010 (June 28, 2021).

50 See Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Serv., 2021 U.S. Dist. LEXIS 85568 (D.D.C. May 5, 2021).

51 Id. at *22–25.

52 If an agency acts based on the agency's interpretation, and that action is challenged, courts may be called upon to review such interpretations to determine if the agency has exceeded its authority.

53 West Virginia v. EPA, 142 S. Ct. 2587.

54 Ibid.

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2. The Undermining of Federal Agencies

Furthermore, with the recent decision in Dobbs v. Jackson Women’s Health Organization55 and West Virginia v. EPA, the Court is conveying one message: they are eliminating the authority of federal agencies. In Dobbs, the Court decided that the Constitution does not mention the right to an abortion, resulting in the overturn of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. 56 Dobbs and West Virginia v. EPA address vastly different issues, but they both establish that a federal entity is not allowed to act outside of the Constitution’s vague language. On one hand, Dobbs eliminates abortion as a right throughout the nation; on the other hand, West Virginia v. EPA eliminates regulation of GHG emissions from power plants until Congressional Authorization. With Congress in constant gridlock, West Virginia v. EPA solidifies continuous blockage of any innovative environmental regulations.

In addition, Dobbs and West Virginia v. EPA are neutering the ability of federal agencies and the executive branch to authorize policies outside of the direct language present in the Constitution. A decrease in federal authority over states and in regulations set by federal entities will negatively impact the public’s welfare. Women impacted by Dobbs are unable to reach the necessary procedures related to an abortion without fleeing to a state that does provide such procedures. The standstill of environmental regulation through West Virginia v. EPA is not a direct cause for reproductive injustice; however, the ability to regulate negative environmental harms subsequently determines whether women are more likely to face miscarriages, birth defects, low birth rates, and death.57 Less environmental regulations will increase the likelihood of a woman having such catastrophic health impacts that lead to the possible need for an abortion. Now more than ever, it is crucial to reverse this inconsistent and invalid legal precedent set forth by this decision and further examine the Court’s logic.

55 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

56 Ibid.

57 See Elizabeth Hoover, Env’t Reproductive Justice: Intersections in an American Indian Community Impacted by Environmental Contamination, 4 ENV’T SOCIO. 8 (2018).

3. The Question of Future Court Rulings After West Virginia

West Virginia v. EPA focuses on how the Court is taking a more literal approach to the CAA and has grave legal implications for the upcoming decision in Sackett v. EPA. In 2012, Michael and Chantell Sackett planned to build a home near Priest Lake, Idaho but were told by the EPA they would not be allowed to build in this area. Under the Clean Water Act (CWA), the EPA has the authority to regulate all ‘navigable waters,’ and the EPA communicated that the Sackett’s home was being built on top of wetlands. 58 Like the CAA’s vagueness related to coal-power plant regulation, the CWA defines navigable waters vaguely as “the waters of the United States, including the territorial seas.”59 The EPA submitted a compliance withdrawal, meaning that they removed their initial compliance order against the Sacketts. Despite the EPA’s compliance withdrawal, the Sacketts continued with the case in front of the U.S. District Court for the District of Idaho.60 When the case reached the U.S. Court of Appeals for the Ninth Circuit, they declared that the EPA does have jurisdiction over their property under the CWA.61

Now, Sackett is awaiting to be heard by the Supreme Court.62 The Sackett case, like West Virginia v. EPA, questions whether the EPA has authority over the regulation of a vague concept.63 In Sackett, the vague wording relates to navigable waters. This is parallel to West Virginia v. EPA’s questioning of GHG emission regulations, where the EPA must decipher what regulations can be enforced upon existing sources and which cannot. 64 Based on West Virginia v. Sackett is likely to be struck against the EPA, and there is no question that West Virginia v. EPA’s ruling will play a tremendous role in this case.

58 Sackett v. EPA, No. 19-35469 (U.S. argued Oct. 3, 2022).

59 Id. at 5.

60 Ibid.

61 Sackett v. EPA, 8 F.4th 1075, 1092–93 (9th Cir. 2021).

62 See Sackett v. EPA, 142 S. Ct. 896 (2022), granting cert., Sackett, 8 F.4th 1075.

63 See Clean Water Act, Pub. L. No. 92-100, 86 Stat. 816 (1972) (codified as amended at 33 U.S.C. § 1251 et seq.).

64 West Virginia v. EPA, 142 S. Ct. 2630.

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B. Policy Implications of West Virginia v. EPA

1. Climate Change

The ongoing effects of climate change persist while federal agencies are left without the power to implement new climate change-based policies. In Justice Kagan’s dissenting opinion in West Virginia v. EPA, she cites that a number of catastrophic consequences are likely to occur under climate change such as “increases in heat-related deaths, coastal inundation, more frequent and intense hurricanes, floods, and other extreme weather events.”65 Although environmental regulation does not reverse the effects of pollution on the environment, it is essential that government agencies encourage individuals and corporations to limit emissions and pollution to prevent further damage. Despite this fact, the EPA now must wait for Congressional Authorization to act on any new environmental regulations while climate change will continue to worsen.

2. Environmental Justice

Climate change is a prominent topic in West Virginia v. EPA, but environmental injustice is another equally important implication of the decision. Environmental injustice is the disproportionate exposure of minority communities to environmental harms and risks that can come from multiple sources of air pollution, water quality concerns, and cumulative impacts associated with living in certain urban and rural areas.66 Environmental injustice places some communities, specifically low-income and BIPOC communities, near power plants, GHG emitters, and other environmental polluters. Environmental justice (EJ) is crucial to environmental regulation on all levels. The start of the modern environmental justice movement started in Warren County, North Carolina in the 1980s. Their civic engagement efforts terminated the burying of soil contaminated with Polychlorinated Biphenyls

65 West Virginia v. EPA, 142 S. Ct. at 2626 (Kagan, J., dissenting).

66 See Environmental Justice-Related Terms, supra note 2.

(PCBs), a highly carcinogenic chemical compound.67 Although the soil contaminated with lethal PCBs was not removed until 2003, Warren County residents continued to strive for environmental policies and regulations to prevent any future environmental injustices.68 Local and state entities, led by environmental justice advocates on the ground, forced the EPA to issue Executive Order 12898 in order to mitigate the effects of environmental injustice.69 Executive Order 12898 forced federal and state agencies to identify and address communities impacted by surrounding environmental effects, devise a strategy for implementing EJ, encourage nondiscrimination in federal programs related to the effect on people’s health and their environment, and create broader access to public information and participation for minority and low-income communities.70 There is a clear link between environmental justice and federal agency environmental action that cannot be separated. Not only does West Virginia v. EPA’s decision further the negative impacts low-income and BIPOC communities face from carbon emissions, but it also critically undermines decades of preventative measures made in the courts and on the ground for environmental justice advocates.

In this global climate crisis, various environmental organizations and politicians have invested more in the protection of the environment.71 However, there is a fundamental issue regarding its extension to underserved communities that face environmental injustice. It is necessary to start viewing environmental law and environmental justice as linked together. Professor Mark Templeton explains that, “Environmental Law cannot exist without environmental

67 Brian Palmer, The History of Environmental Justice in Five Minutes, NAT. RES. DEF. COUNCIL (May 18, 2016), https://www.nrdc.org/stories/history-environmental-justice-five-minutes

68 Bullard, supra note 3.

69 William C.C. Kemp-Neal, Environmental Racism: Using Environmental Planning to Lift People Out of Poverty, and Re-shape the Effects of Climate Change and Pollution in Communities of Color, 32 FORDHAM ENV’T L. REV. 295, 295–321 (2021).

70 Exec. Order No. 12898, 59 Fed. Reg. 32 (Feb. 11, 1994).

71 See, e.g., Keishamaza Rukikaire, UN Environmental Assembly Concludes with an Urgent Call for Action to Solve Planetary Emergencies, U.N. ENV’T PROGRAMME (Feb. 23, 2021), https://www.unep.org/news-and-stories/press-release/un-environment-assembly-concludesurgent-call-action-solve-planetary.

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justice.”72 The injustices seen in impacted communities are not separate from climate change prevention, so it is essential to address environmental justice and climate change at all levels of the judicial system.

V. A Proposed Remedy to Negative Legal and Policy Implications

In this proposed new ruling, it will address the legal and policy implications of West Virginia v. EPA and reflect the Court’s previous rationale and decisions prior to this ruling. It is imperative for the Court to overturn the MQD to reflect legal precedent before West Virginia v. EPA and acknowledge the everchanging reality of society.

A. Policy Implications of West Virginia v. EPA

The MQD must be overturned through a new doctrine: the Environmental Justice (EJ) doctrine. This proposed EJ doctrine is founded on the Chevron deference doctrine which was first established in 1984 in Chevron USA, Inc. v. Natural Resources Defense Council, Inc.73 In this landmark case, the Court raised the question, “Does the EPA have the authority to define the term stationary source to mean whole industrial power plants only under the CAA?”74 The Court affirmed that the EPA does have the authority to define the term stationary source to mean whole industrial power plants only.75 Under the Chevron deference, Justice Burger and the majority set a legal test as to when the Court should defer to the agency’s interpretation.76 Essentially, the agency’s interpretation is maintained as long as Congress has not precisely questioned the issue at hand. In Massachusetts v. EPA, Brown, and American Electric Co., the Court upheld the logic presented in the Chevron deference by

72 Claire Stamler-Goody, There is No Environmental Law without Environmental Justice, UNIV. OF CHI L. SCH (Apr. 15, 2022), https://www.law.uchicago.edu/news/there-no-environmental-lawwithout-environmental-justice.

73 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 468 U.S. 837 (1984).

74 Ibid.

75 Id. at 846.

76 Chevron Deference, CORNELL L. SCH. LEGAL INFO. INST. (July 2022), https://www.law.cornell.edu/wex/chevron_deference.

deferring to the actions of the federal agency. However, as a result of the MQD implementation in West Virginia v. EPA, the Chevron deference is rendered invalid for future cases. To prevent further worsening of climate change and environmental injustices, West Virginia v. EPA should be overturned so that the Court must defer to the EPA's interpretation unless the majority of Congress speaks precisely against the issue. Essentially, an agency’s interpretation of a statute carries on if the statute is vague in its language and Congress has not questioned such interpretation. Setting this new precedent based on the Chevron deference would reinstate the EPA’s ability to interpret the CAA accordingly while establishing a structure for a long-contested issue surrounding the EPA’s jurisdiction.

B. Incorporating Environmental Justice in the Doctrine

When considering the implementation of the EJ doctrine, it is critical to acknowledge the complexity involved in environmental law.77 As environmental expert Professor David Pellow explains, an environmental justice framework is vital in decision-making processes like these. A new environmentally and socially conscious framework would include 4 dimensions: viewing environmental inequality as a sociohistorical process rather than a discrete event; focusing on the complex roles of the many people and organizations involved; understanding the effects of social inequality on stakeholders; and allocating agency.78 Pellow’s framework is necessary for decision-making processes, like environmental law, because it enables broad interpretations seen in the CAA and the Court’s previous rulings while also incorporating the complexities of environmental injustice. Applying a framework like this to the EJ doctrine is necessary to respond to the climate crisis, mitigate environmental injustice, and address the major implications a law can have on the U.S. while avoiding the long-winded process of Congressional Authorization.

78 Ibid.

77 David N. Pellow, The Politics of Illegal Dumping: An Environmental Justice Framework, 27 QUALITATIVE SOCIO. 511, 511–25 (2004).

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Implementing the environmental justice framework is necessary for addressing climate change and fighting for environmental justice.

C. Sackett v. EPA: The Next Steps

It is imperative that the Court addresses the inconsistencies of the West Virginia v. EPA ruling and overturns the MQD by taking on another proceeding related to agency jurisdiction. This article proposes that the Court evaluate the EPA’s jurisdiction in Sackett. This upcoming case has tremendous implications for the environment because the Court can recognize the climate crisis at hand, provide the EPA jurisdiction outside the boundaries of precise language, and establish a legal test on an agency’s ability to interpret the law. Sackett is proposed here due to its pending status in the Court and relevance to the proposed Environmental Justice doctrine, but another case related to agency jurisdiction is possible as well. If the Court were to implement the EJ doctrine, then the West Virginia v. EPA decision would be overturned, elimination of the MQD would allow the EPA to institute new environmental regulations, and other federal agencies would be able to work on new regulations without the political blockage of the Court.

Conclusion

As the EPA continues to wait for congressional authorization to regulate GHG emissions in any industry, the ongoing effects of climate change and environmental injustice persist. The EPA and other federal agencies are left with vague instructions on what they can govern due to the application of the MQD. It is important that the EPA receive congressional authorization to regulate GHG emissions in any industry, but this is a simple bandage to a hemorrhaging issue. With little improvement in the field of climate change and environmental injustice, it is of utmost importance to solidify a constitutional right for all individuals to have a clean and healthy environment. The Court has a grave responsibility to right the wrongs they have committed with their decision in West Virginia v. EPA. With the pending case of Sackett, the Court

can fix the inconsistent precedent of West Virginia v. EPA and the invalid application of the MQD. The West Virginia v. EPA ruling must be overturned, the EPA must be able to interpret outside of Congressional Authorization, and the EJ doctrine must be implemented in future EPA cases.

UCLA UNDERGRADUATE LAW JOURNAL

Roz Kohan*

Does China’s E-Justice System Adhere to the International Norms of a Fair Trial?

ABSTRACT. China’s e-justice technologies violate the right to a fair trial protected under international law. The digitized system used in China, which consists of the use of Internet courts, judicial blockchain, and legal AI, developed as a result of an overburdened judicial system and to increase access to justice. However, its use has posed ethical concerns regarding limited accessibility, systemic and algorithmic bias, transparency, security, and data privacy. These issues and their ramifications ultimately violate international human rights law. In order to ensure that rising court technology upholds the right to a fair trial, existing international case law should be used as grounds for the development of just guidelines for use.

*Roz Kohan is a recent graduate of UCLA, where she earned a Bachelor of Arts in Political Science with a minor in Iranian Studies. Throughout her undergraduate career, she served as a Justice on UCLA’s Judicial Board, assisted self-represented litigants with JusticeCorps, and mentored fellow transfer students as Co-President of the Pre-Law Transfer Society. Roz is starting law school this fall and hopes to pursue a career in public interest and technology law.

Editor: Alexander Azilazian is a second year Political Science student at UCLA. After graduation, he plans on attending law school to pursue a career as a trial attorney. Outside of the Law Journal, he is also an editor at the Bruin Political Review.

Introduction

The People’s Republic of China has one of the world’s most technologically advanced judicial systems, using novel court technology to assist litigants, lawyers, and judges throughout its legal processes. This technology developed due to a combination of factors: an overwhelmed judicial system, a need to regain public trust, a response to challenges presented from the ‘information era,’ and a need for greater accessibility to justice.1 By the end of 2017, China had around 365,000 lawyers to deal with around 15-20 million cases.2 The high costs and inconveniences of litigation made it difficult for individuals to seek justice.3 Further, China faces a chronic shortage of judges due to elements such as strict government budgets resulting in judges being drastically overworked and underpaid.4

The totality of these challenges has led to China’s rapid embrace of unique technologies to aid in all aspects of judicial processes in the hopes of alleviating both internal and external complexities of the system. In 2016, the smart court system was worked into China’s National Strategy for the Informatization Development with the goals of “‘enhance[ing] the informatization levels at all stages of court processes, including filing, hearing, judgment enforcing, promoting judicial openness, and stimulating judicial fairness.’”5 This has resulted in the creation of China’s E-Justice system, which consists of Internet Courts, judicial blockchain, and legal AI. The use of these technologies may have brought some levels of relief to China’s overstressed judicial system, but they come with several ethical ramifications. Specifically, these ethical issues concern accessibility, intrinsic and systemic bias, transparency, security, and data privacy. These same complications impinge on the right to a fair trial, which is considered a fundamental human right for Chinese citizens under

1 Changqing Shi et al., The Smart Court – A New Pathway to Justice in China?, 12.1 INT’L. J. CT. ADMIN 4 (2021).

2 Masha Borak, China embraces tech in its courtrooms, TECHNODE (Oct. 24, 2018), https://technode.com/2018/10/24/china-court-technology/.

3 Huang-Chih Sung, Can Online Courts Promote Access to Justice? A Case Study of the Internet Courts in China, 39 COMPUTER L. & SEC. REV. 1, 1–2 (2020).

4 Shi, supra note 1.

5 Id.

international law. Despite the flaws of China’s court technology, their use is widespread throughout much of China due to their specific advantages.

Unlike many other nations that saw an increase in court technology use as a result of the COVID-19 pandemic, China’s pre-pandemic developments exhibited the major benefits of the use of this technology. Because the smart court developments began in 2016, adapting to the new court technology was not as difficult for the Chinese people. The increasing number of Internet users in China and information-based cultures more generally makes it possible for the use of this technology to be efficient and accessible. 6 In contrast, the rapid development of court technology in the United States and the United Kingdom was due to the COVID-19 pandemic, leading to difficulties in acclimation. Given that the change in legal technology was quick and unprecedented in the U.S, there exist biases that have violated due process rights. China’s court technology has also brought about many of the same difficulties regarding a lack of accessibility for those of lower socioeconomic backgrounds, and a lack of humanness ruining the right to a fair trial. Even if China’s previous developments allowed for a more seamless transition into dealing with pressures of the legal system as a result of the COVID-19 pandemic, its use of court technology contains flaws that exist and affect individuals in other nations. Despite the efficiency of different technologies used, there are ethical concerns in regards to the use of data for those seeking judicial action, and directly complicate the right to a fair tribunal a right guaranteed under international law. This article will evaluate the use of Internet courts, judicial blockchain, and legal AI in China’s e-justice system and demonstrate how the ethical issues which arise from their use threaten their citizens’ right to a fair tribunal. In order to understand said ethical problems, it is necessary to recognize the specific functions of China's court technology. This will serve as the foundation for identifying the ethical flaws in their use and translate directly into legal violations of the right to a fair trial under international law namely, under Article 14 of the International Covenant on Civil and Political Rights

6 Id.

(ICCPR),7 Article 6 of the European Convention of Human Rights (ECHR),8 and Article 8 of the American Convention on Human Rights (ACHR).9 Furthermore, the legal theory and international norms of the right to a fair trial will be outlined to more clearly demonstrate its violation through the use of China’s court technology.

I. Background: The Systems and Practices of China’s E-Justice System

A. Internet Courts

One of the most notable and beneficial features of China’s e-justice system is the establishment of Internet courts, which operate exclusively via the Internet and exist in cyberspace. In 2017, China established the Hangzhou Internet Court, the first court in the world to have all judicial proceedings (complaint, response, mediation, evidence investigation, and trial) operate via the Internet.10 The jurisdiction of this court covers a variety of Internet-related disputes, including select copyright issues, online contract disputes, domain name disputes, and personal rights.11 This court has received high approval ratings amongst citizens, mainly due to the fact that its online processes reduce litigation costs and expedite a rather lengthy judicial process. By overcoming this issue, the Internet courts have been recognized as a means of increasing access to justice for the masses. The efficacy of the Hangzhou court has led to the establishment of other Internet courts in major cities, Beijing and Guangzhou.12 The locations of these courts are intentional, as many of the large technology companies located in these cities help program the e-justice system

7 International Covenant on Civil and Political Rights art. 14, Dec. 16, 1966, 999 U.N.T.S. 171, 23 I.L.M. 1027 (1984) [hereinafter ICCPR].

8 Convention for the Protection of Human Rights and Fundamental Freedoms art. 6, Nov. 4, 1950, E.T.S. No. 005, 213 U.N.T.S. 221 [hereinafter ECHR].

9 American Convention on Human Rights art. 8, Nov. 11, 1969, 1144 U.N.T.S. 123, 8 I.L.M. 99 (1970) [hereinafter ACHR].

10 Zhuhao Wang, China’s E-Justice Revolution, 105 JUDICATURE 37, 44 (2021).

11 Sung, supra note 3, at 6.

12 Wang, supra note 10, at 44.

and are parties involved in lawsuits heard in the Internet courts.13 Hangzhou is home to the headquarters of Alibaba, one of the world's largest e-commerce companies, and Hikvision, an e-commerce company facing U.S. sanctions. Beijing and Guangzhou are also cities known to house many other major tech companies, such as Xiaomi, China Mobile Ltd, and JD.com.

B. Judicial Blockchain

A unique aspect of the smart courts is their use of judicial blockchain for the collection of evidence and storage of legal records. Judicial blockchain utilizes distributed ledger technology (DLT) to serve as a database to safely record, verify, and store judicial data.14 DLT is a type of decentralized database that shows a record of activity that is stored across multiple computers on a network, meaning that there is no central data storage or administrator. This has been implemented as an alternative means to the notarization of evidence in order to improve judicial efficiency. Once evidence is submitted to the blockchain, it is immutable and time-stamped.15 In addition, there are certain standards that must be met when reviewing the quality of the electronically submitted evidence: “the qualification of the depository platform, the credibility of the technology for collecting infringing webpages, and the integrity of the electronic evidence preservation by means of blockchain.”16 These tests are run to ensure that the evidence is valid, uncompromised, and trusted. However, the development and implementation of new technology do not end at the DLT.

13 Claire Cousineau, Smart Courts and the Push for Technological Innovation in China’s Judicial System, CTR FOR STRATEGIC & INT’L STUD (Apr. 15, 2021), https://www.csis.org/blogs/newperspectives-asia/smart-courts-and-push-technological-innovation-chinas-judicial-system.

14 Tian Lu, The Implementation of Blockchain Technologies in Chinese Courts, 4 STAN J. BLOCKCHAIN L. & POL’Y 102, 102–03 (2021).

15 Sylvia Polydor, Blockchain Evidence in Court Proceedings in China – A Comparative Study of Admissible Evidence in the Digital Age, 3 STAN. J. BLOCKCHAIN L. & POL’Y 96, 100 (2019).

16 Sung, supra note 3, at 7.

C. Legal AI

The development of a legal AI has been underway since 2017 when China published the Artificial Intelligence Development Plan (AIDP), a national strategy white paper.17 The white paper specifically highlights the goals for China’s AI development, such as the incorporation of ‘social’ and ‘moral’ governance.18 The main purposes for AI in the judicial system can be broken down into two main categories: AI clerical assistive systems and AI-based recommendation systems.19 The clerical systems are aimed at maximizing court efficiency by reducing working hours per case and ensuring that judgments are accurate and correct.20 An example of this is the use of AI to help produce automated transcriptions to reduce the manual, time-consuming work of court clerks. AI-based recommendation systems can be seen in the implementation of AI robot judges, who directly help human judges live by summarizing arguments, evaluating evidence, and awarding a recommendation. AI judges can also work directly with court users through many of the pretrial processes. They communicate with parties involved using video messaging and are pictured as holograms of a human judge.21 They are directly involved in all points of the legal process and can play a direct role in the outcome of a case. Despite this involvement, it is important to note that court decisions are not implemented without human approval. This means that no decision is to be made without a human judge signing off on it; i.e., the AI judges are not fully replacing the human judge. Additionally, it is clear that judges will not be entirely replaced by AI anytime in the near future.22

17 Graham Webster et al., China's 'New Generation Artificial Intelligence Development Plan' (2017), NEW AM. (August 1, 2017), https://www.newamerica.org/cybersecurityinitiative/digichina/blog/full-translation-chinas-new-generation-artificial-intelligencedevelopment-plan-2017/.

18 Nyu Wang & Michael Yuan Tian, “Intelligent Justice”: human-centered considerations in China’s legal AI transformation, 3 AI & ETHICS (forthcoming 2023) (manuscript at 1).

19 Id.

20 Id.

21 Tara Vasdani, Robot justice: China’s use of Internet, LEXISNEXIS (Feb. 5, 2020), courtshttps://www.lexisnexis.ca/en-ca/ihc/2020-02/robot-justice-chinas-use-of-internetcourts.page.

22 Id.

CHINA’S E-JUSTICE SYSTEM

Although this technology has proved itself to be useful, especially due to its need during the COVID-19 pandemic, this does not change the fact that there are flaws within the system that could contain large threats to citizens seeking an impartial trial. Studies from this period show that children are deemed less believable when appearing in a remote witness testimony, and that detained individuals were more likely to be deported when their hearings were held remotely.23 These can be attributed to a lack of humanness that is present in remote hearings and judges who can be prone to bias due to unfamiliarity with the new technology. In the U.K., vulnerable populations are deprived of access to justice as a result of digitized legal processes and remote hearings.24 These biases exist in the different technologies used in China’s e-justice system, and are in the process of becoming normalized. The ethical concerns of the use of these technologies are now becoming more important than ever, as they pose a legal violation while their usage increases.

II. Ethical Implications

While some argue that technological advancements have improved accessibility and efficiency in the court system, there are ethical concerns about how the use of technology may discriminate against individuals from different socio-economic backgrounds and pose a risk to the right to a fair trial for Chinese citizens. This is evident in the lack of accessibility, transparency, security, and data privacy. Addressing these concerns is critical as China's court system continues to progress technologically.

A. Accessibility

Although some argue that the digital advances of China’s court system have dramatically increased accessibility for a handful of upper- and middle-class citizens, many populations in China continue to lack access to justice. The

23 ALICIA BANNON & JANNA ADELSTEIN, THE IMPACT OF VIDEO PROCEEDINGS ON FAIRNESS AND ACCESS TO JUSTICE IN COURT (2020).

24 See SELECT COMMITTEE ON THE CONSTITUTION, COVID-19 AND THE COURTS, 2019-21, HL 257, ¶ 79 (UK).

Hangzhou court reductions make pursuing justice more cost-effective for litigants and within the courts.25 With the use of AI, pressure is relieved from China’s overworked judicial system, allowing judges to proceed through cases at a higher rate, thereby increasing accessibility overall. Though these are seemingly significant positives, for those who do not have access or prerequisite knowledge of the Internet, it is very difficult to navigate this court system. This tends to occur in rural areas in China, where the current Internet penetration rate is only 58.8%.26 In the case of the Hangzhou Internet courts, those who lack Internet literacy may struggle in bringing forth a case from start to finish if they are dealing with an e-commerce related dispute. Though this technology is intended to benefit litigants, it consequently discriminates against citizens of lower socio-economic status, who are typically unable to access or utilize both Internet and traditional court systems.

The ethical issues tied to accessibility are rooted in disparities in information literacy. In order to keep up with our information society, individuals need to have the intellectual skills to process information (reading, writing, reasoning, and calculating), access to information technologies (computers, phones, Internet access), and access to the information itself.27 These issues are directly correlated to the educational attainment and economic status of an individual. For example, it is no surprise that the implementation of smart courts has shown to be successful among a demographic of wealthier areas and individuals, who generally have Internet access and the literacy skills needed for the effective use of the respective court technologies. 28 There are little to no limitations for individuals of a wealthier socioeconomic status, such as the ability to afford legal services or obtain access to the Internet. Thus, the use of more advanced technologies in China’s court systems has disproportionately limited

25 How China's ‘Internet Courts’ are adapting to a new era, CHINA GLOB TELEVISION NETWORK (Mar. 7, 2021), https://news.cgtn.com/news/2021-03-07/How-China-s-Internet-Courts-areadapting-to-a-new-era-YqTdsiEcVy/index.html.

26 China Internet Service: Internet Penetration Rate: Rural, CEIC DATA (last visited Mar. 14, 2023), https://www.ceicdata.com/en/china/internet-internet-market-size/cn-internet-serviceinternet-penetration-raterural#:~:text=China%20Internet%20Service%3A%20Internet%20Penetration%20Rate%3A%20Rur al%20data%20was%20reported,at%2058.800%20%25%20in%20Jun%20202.

27 See Richard O. Mason, Four Ethical Issues of the Information Age, 10 MIS Q. 5, 10–11 (1986). 28 Wang & Tian, supra note 17, at 3.

access to those who are less tech-literate and tend to be of lower socioeconomic classes, causing an ethical and legal concern.

B. Systemic Bias in the E-Justice System

Another major issue with the developing court technology in China is systemic bias, which directly impacts the right to a fair trial due to its presence in the e-justice system. In this context, systemic bias refers to discriminatory patterns present in technologies as a result of their programming. While the use of AI in judicial proceedings is thought to help remove bias, there remains a risk of algorithmic bias. This refers to the favoring of unfair outcomes as a result of the instructions of the algorithms. It can appear in a multitude of formats, such as biases present within the data used to program the AI and incomplete datasets that are accordingly inaccurate.29 Essentially, data refers to the information being used to design the prediction of new information through different models. If there is algorithmic bias, it comes from issues with the information used to program those models, and since these models are used to predict outcomes, it will affect the results produced. Additionally, this is not a problem that can be easily resolved by obtaining new datasets they are limited, and getting accurate and representative datasets can be very difficult.30 Issues in data can also arise directly as a reflection of the social, political, and cultural institutions in society that they arise from.31 Therefore, they are able to exacerbate existing discriminatory biases through their use, something that is harmful on a wide scale if not actively addressed.

Systemic bias can also be paralleled to judges that may possess both conscious and unconscious biases in their decision-making. However, the intent of certain technologies such as AI judges is arguably to ensure accuracy in decision-making. By using technology that also contains the threat of bias, it is

29 Jerome A. Cohen & Chi Yin, The Complexities of China’s Struggle For Justice, THE DIPLOMAT (May 12, 2022), https://thediplomat.com/2022/05/the-complexities-of-chinas-struggle-forjustice/.

30 Rebecca Heilweil, Why algorithms can be racist and sexist, VOX (Feb. 18, 2020), https://www.vox.com/recode/2020/2/18/21121286/algorithms-bias-discrimination-facialrecognition-transparency.

31 Langdon Winner, Do Artifacts Have Politics?, 109 DAEDALUS 121 (1980).

not maximizing efficiency and can exacerbate existing issues of bias in human judges.

C. Transparency, Security, and Data Privacy

The concerns of transparency, security, and data privacy encompass the control, use, and protection of data received through China’s e-justice technologies. Controlled transparency of the Chinese Communist Party (CCP) over the judicial system is an ethical concern that could translate into legal violations. The e-justice technology employed by China can allow the CCP to further centralize and move control away from local authorities and the discretion of individual judges.32 In the case of judicial AI, recommendations can keep case decisions aligned with the CCP’s interests. This becomes legally important because it violates the independent nature that a judiciary must hold from its government to ensure an unbiased trial, and an ethical concern as legal data can be abused to adopt party-focused decisions. Moreover, there is a conflict of interest in regard to the impartiality of the e-justice system due to the heavy involvement of major tech companies in the programming of the court technology, which will be discussed in later sections.

Security and data privacy are increasingly important issues as China’s court system continues to progress technologically. Because blockchain technology operates similarly to cloud storage in the sense that it is maintained on all computers that have access to it, there is no knowledge as to the security of that data. Blockchain technology comes off as a seemingly secure way to store judicial data due to the fact that once something is uploaded to it, it can no longer be edited or manipulated. However, this does not ensure full protection from data manipulation. Anyone who can obtain access to the blockchain can add events and upload other information to the blockchain that could add fake data that could pose a security threat. It is also very unclear as to who has access to the data.

32 Cousineau, supra note 12.

III. Legal Implications

In order to recognize how China’s e-justice system threatens the right to a fair trial, it is first important to understand what that actually entails. Because China’s right to a fair trial is not explicitly mentioned within its constitution or other legal documents, one can assess this from the standpoint of international law, examining China in relation to perceived international norms of the right to a fair trial.

The idea of a right to a fair trial dates as far back as the Magna Carta, which King John of England was forced to sign, leading him to be held as equally accountable under the law as the rest of the population.33 Before the right to a fair trial was developed under international law, the right to a fair trial was being incorporated in different documents of states, such as the adoption of the 6th Amendment of the U.S. Constitution in 1791 and Articles 6 through 9 of the French Declaration of the Rights of Man, which later was served as the basis of fair trial rights for France's Constitution.34 In 1948, Article 18 of the American Declaration of the Rights and Duties of Man was the first binding international human rights instrument that outlined the right to a fair trial under international law. 35 Later that year, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly, and explicitly mentioned in Article 10 that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal.”36 Though non-binding, the UDHR set a notion of a fair trial under international law that has been expanded upon in subsequent documents and is considered declaratory of customary international law.37

33 ANN LYON, CONSTITUTIONAL HISTORY OF THE UNITED KINGDOM 39 (2003).

34 Patrick Robinson, The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY, 3 BERKELEY J. INT’L L. PUBLICIST 1, 3 (2009).

35 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Art. 64 of the American Convention on Human Rights, Advisory Opinion OC10/89, Inter-Am. Ct. H.R. (ser. A) No. 10, ¶ 45 (1989)

36 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

37 See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 3, ¶ 91 (May 24); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, 76 (June 21) (Ammoun, V.P., separate opinion); Andrés Aguilar (Special Representative of the U.N. Comm’n on Hum. Rts.), Preliminary Rep. on the Human Rights

In 1950, the legally-binding European Convention for the Protection of Human Rights formed Article 6, which covers these same rights and also specifies factors such as a trial being conducted under a fair timeline.38 This right is also elaborated in Article 8, Section 1 of the ACHR and Article 7 of the African Charter of Human and Peoples’ Rights.39 The best reflection of the customary international law norm surrounding the right to a fair trial is that of Article 14 of the ICCPR,40 which states: “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”41 Article 14 is also considered a jus cogen norm of international law, meaning that it is a rule of international law that cannot be violated under any circumstances.42 The foundation for the meaning of the right to a fair trial has been based on Article 14 due to its widespread use in judicial precedent, as reflected in General Comment 32 from the UN Human Rights Committee (UNHRC).43 The committee provides guidance to different international courts based on existing international case law, and has been used by international courts in their decision-making process about the violation of Article 14. The widespread implementation and practice of Article 14 of the ICCPR have deemed it the general norm of the right to a fair trial in international law. The right to a fair trial is also analogously guaranteed under various regional human rights systems, such as Article 8 of the ACHR and Article 6 of the ECHR. There are multiple understandings of the components of the right to a fair trial, including competence, independence, impartiality, and timely conduct.

Situation in the Islamic Republic of Iran, ¶¶ 14–15, U.N. Doc. E/CN.4/1985/20 (1985); THEODOR

MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 95–96 (1989); ANNE

F. BAYEFSKY, INTERNATIONAL HUMAN RIGHTS Law 183 (1992).

38 ECHR, supra note 8, art. 6.

39 ACHR, supra note 9, art. 8(1); African Charter on Human and Peoples’ Rights art. 7, June 27, 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982). See also AMAL CLOONEY & PHILIPPA WEBB, THE

RIGHT TO A FAIR TRIAL IN INTERNATIONAL LAW 73 (2021).

40 See generally North Sea Continental Shelf (Fed. Republic of Ger./Den.; Fed. Republic of Ger./Neth.), Judgment, 1969 I.C.J. 3, ¶ 74 (Feb. 20); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 64 (July 8),

41 ICCPR, supra note 7, art. 14(1).

42 See Prosecutor v. Norman, Case No. SCSL-2003-09-PT, Decision on the Application for a Stay of Proceedings and Denial of Right to Appeal, ¶ 7 (Nov. 4, 2003).

43 U.N. Hum. Rts. Comm., General Comment No. 32, Article 14, Right to equality before courts and tribunals and to fair trial, ¶ 19, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007) [hereinafter General Comment No. 32].

These parts need to be upheld throughout all stages of the legal process.44 It is important to establish this beforehand, as a violation of this right can occur at any point in the stages of a trial, even if they are digitized. Therefore, all aspects of China’s e-justice system should be scrutinized under the same legal standards as if these functions would occur as they traditionally did in person. A seemingly mild involvement of court technology has the ability to entirely impinge on the right to a fair trial.

In addition to being violated at any point in the legal process, the context behind the development of fair trial rights under international law is crucial in understanding how its legal precedents apply to the use of modern court technology. The establishment of these legal rules and structures did not take into account the creation of the technology like that used in China, along with how its use would greatly influence trial proceedings. Although the framers of international standards did not have China’s e-justice system in mind during the creation of these precedents, this does not preclude their applicability to China’s system. Under international human rights law, the right to a fair trial is one that is fundamental and cannot be compromised under any circumstances, such as under an emergency.45 Therefore, a digitized and non-traditional tribunal must be required to uphold this right despite its differences from typical court settings and judicial processes. Since China’s e-justice technologies can directly impact the outcome of a case, these technologies should be upheld to the same legal standards of a right to a fair trial that judges and attorneys maintain. The ambiguity surrounding the legal status and standards of this advanced level of court technology creates an opportunity for the due process rights of all parties involved to be unknowingly violated, and encourages the need for the expansion of legal standards for the use of court technology, something to be discussed in subsequent sections.

44 Reverón Trujillo v. Venez., Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 197, ¶ 68 (June 30, 2009) [hereinafter Reverón Trujillo v. Venez.].

45 Id. ¶ 68, (citing INTER-AM. COMM’N H.R., REPORT ON TERRORISM AND HUMAN RIGHTS, ¶ 247, OEA/Ser.L./V/II.116, Doc. 5 Rev. 1 corr. (2002)). See also Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1), and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, Inter-Am. Ct. H.R. (ser. A) No. 8, ¶ 30 (Jan. 30, 1987); Judicial Guarantees in States of Emergency (Arts. 27(2), 25, and 8 of the American Convention of Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No. 9, ¶ 20 (Oct. 6, 1987).

A. Competence

An important aspect of a fair trial is the requirement that it involves a competent judge. The requirements necessary for an individual to become a judge vary on a state-by-state basis. Article 10 of the UN’s Basic Principles on the Independence of the Judiciary recommends that member states select competent individuals “of integrity and ability with appropriate training or qualifications in law” to hold judicial offices.46 In order for China’s court technology to properly adhere to the right to a fair trial, all use of technology aiding in the decision-making process must be considered competent, specifically that of AI judges. Determining the competency of AI can be done by analyzing its functions. Put simply, AI operates by using large datasets to complete functions provided through different algorithms, such as examining certain patterns. It is very possible to “train” AI by feeding it large amounts of relevant information and asking it to complete specific and complex tasks. The large amount of information that AI can process and complete functions with is parallel to the extensive legal studies and years of career experience that judges typically have under their belt. Due to their similarities in purpose and function throughout the legal process, AI judges should be legally bound by the same guidelines as judges.

Integrity is a necessary aspect of being a competent judge, something that is not as black-and-white when integrating into an AI function. All consistent standards of integrity include honesty, which entails a conscious effort rather than simply outputting predictions based on existing data. As outlined earlier, AI is a reflection of how it is programmed a reflection of both the political and social institutions of the state, and those who program the technology themselves.47 The characteristics needed to make judgments require a level of

46 Basic Principles on the Independence of the Judiciary, ¶ 10 (Sept. 6, 1985), in Seventh U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Rep. Prepared by the Secretariat, U.N. Doc. A/CONF.121/22/Rev.1, annex II(2), at 58, 60 (1985) [hereinafter Basic Principles on the Independence of the Judiciary]. The Basic Principles were adopted by the U.N. General Assembly later that year. See G.A. Res. 40/32, ¶ 5 (Nov. 29, 1985); G.A. Res. 40/146, ¶ 2 (Dec. 13, 1985).

47 Winner, supra note 23.

conscious, human involvement that the current e-justice technologies have not fulfilled, leading AI judges used by China to not be fully competent.

It may be argued that AI judges will not fully replace the function of live human judges, nor can they be fully compared to judges. This is due to the fact that all final decisions in China must be approved by a human judge, who likely will not sign off on egregious errors. Furthermore, commentary from Chinese government officials notes that automating judges entirely is not in China’s near future. Similar mechanics have been reinforced in Loomis v. Wisconsin, a U.S. case in which the plaintiff argued that the use of Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), a risk-assessment AI used to predict the risk of recidivism, violated his right to a fair trial.48 The Wisconsin Supreme Court decided that the use of COMPAS did not violate the plaintiff’s due process rights. Their justification for this was that judges who examined the COMPAS score were also forewarned of the risks of its use, including studies showing that algorithmic biases disproportionately give minority groups higher risk scores. Because there remains a level of human involvement around the use of AI, it can be argued that despite its faults, it does not necessarily complicate the right to a fair trial.

When comparing the use of AI in China and the U.S., it is important to understand how direct its involvement is in the decision-making process. In the case of the U.S., the AI is used as an assistive tool, but does not issue any judgment; a human judge is still the one utilizing the information to make a decision. Even though a human judge signs off on decisions made by AI judges in China, the AI is the one deciding the ruling a tool that does not satisfy the requirement of competency. The convenience of using AI in decision-making is appealing to overworked judges in China, leading to an overreliance on AI rather than as support. This is a pressing issue discussed by many scholars regarding China’s e-justice system.49 In addition, there is a strong likelihood that China’s judges are inadequately informed about the risk of biases in AI the way that the judges in Loomis v. Wisconsin were. Consequently, the right to a competent trial

48 State v. Loomis, 881 N.W.2d 749 (Wis. 2016), cert. denied, 137 S. Ct. 2290 (2017).

49 See, e.g., Wang & Tian, supra note 12, at 3.

has not been fulfilled under the use of China’s e-justice system, violating the right to a fair trial under international law.

B. Independence

The independence of the judiciary is a pressing issue in China’s e-justice system, as the technologies used can further centralize CCP control and compromise the impartiality of judges. The definition of independence under the right to a fair trial is one free from interference from external parties such as a state’s government. Paragraph 1 of the UN Basic Principles on the Independence of the Judiciary states that an independent tribunal should be “guaranteed by the State and enshrined in the Constitution or the law of the country.”50 Article 131 of China’s Constitution upholds this right, stating that the People’s Courts “shall not be subject to interference from any administrative organ, social organization or individual.”51 There is concern that the format of the smart court system enables strict judicial oversight from the CCP, allowing the technology to align with their goals and interests. This can be most easily manipulated in the case of judicial AI. As mentioned earlier, AI can be programmed to make certain decisions that could improve party outcomes, violating the right to an independent tribunal. This directly interferes with the ability of judges to complete their functions with independence because of a lack of judicial immunity, something judges are entitled to under international law and which has been upheld by both the Inter-American Court and the European Court.52 In Reverón Trujillo v. Venezuela, guidelines to guarantee judicial immunity are outlined, such as job retention if speaking against the State.53 Due to the nature and political function of the CCP, judges are likely to agree with certain judgments set forward by government-operated AI in order to maintain their positions, exhibiting a lack of judicial immunity and therefore a lack of independence.

50 Basic Principles on the Independence of the Judiciary, supra note 44, ¶ 1.

51 CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA, Dec. 4, 1982, § 8, art. 131.

52 Ernst v. Belg., App. No. 33400/96, ¶¶ 50, 52, 85 (Eur. Ct. H.R. July 15, 2003). See also Basic Principles on the Independence of the Judiciary, supra note 44, ¶ 10.

53 Reverón Trujillo v. Venez., supra note 42 at §79.

CHINA’S E-JUSTICE SYSTEM

There is immense mistrust in China’s judiciary due to an absence of independence. The public has taken notice of the fact that many of the companies that are outsourced to create the e-justice system have had many judicial decisions granted in their favor.54 A notable example of this is in the case of Alibaba, whose subsidiary company, Gongdao Network Technology, supports the Hangzhou Internet Court.55 This means that they are in charge of the development of the technology behind the court itself. Gongdao Network Technology is also known for developing the technology behind China’s judicial blockchain in collaboration with the Ant Group.56 Though there is an ambiguity as to what this entails and what data is available to these groups, there is widespread belief among the Chinese public that the judiciary lacks independence due to collaboration with these large tech companies. Thus, the development of the e-justice system itself is a violation of the independent nature of the right to a fair trial, as there is clear pressure from external factors and cooperation between the two. Under Campbell v. United Kingdom, it is confirmed that “the existence of guarantees against outside pressures” is a necessary component for a trial to be independent.57 This idea is further elaborated upon in Findlay v. United Kingdom, where independence “must offer sufficient guarantees to exclude legitimate doubt,” something that has not been done in the current case of China as exhibited by the public’s response.58 The need for independence for the fairness of a trial is a nonnegotiable, crucial aspect reflected in international case law and guidelines. 59 E-justice technologies can affect judicial decisions to advance interests that not only benefit the Chinese government, but that of Chinese big tech corporations as well, while violating an important element of fair trial rights for Chinese citizens.

54 Wang, supra note 8.

55 Guodong Du & Meng Yu, China Establishes Three Internet Courts to Try Internet-Related Cases

Online: Inside China’s Internet Courts Series -01, CHINA JUST. OBSERVER (Dec. 16, 2018), https://www.chinajusticeobserver.com/a/china-establishes-three-internet-courts-to-tryinternet-related-cases-online.

56 Mark Barley, Ant’s Alipay launches online drug prescription blockchain, LEDGER INSIGHTS (Sept. 18, 2018), https://www.ledgerinsights.com/ant-alipay-drug-prescription-blockchain/.

57 Campbell v. UK, 80 Eur. Ct. H.R. (ser. A) 39, at ¶ 78 (1984).

58 Findlay v. UK, 1997-I Eur. Ct. H.R. 263, ¶ 73.

59 General Comment No. 32, supra note 41.

C. Impartiality

Another final element of the right to a fair trial is impartiality, avoiding personal bias or prejudice.60 Although it has much overlap with the idea of independence, impartiality is a separate subject of its own respective legal content. The UNHRC explains two types of impartiality: subjective and objective. Subjective impartiality refers to the fact that judgments should not be influenced by personal bias or prejudice, and objective bias means that to a reasonable individual, the court should appear impartial.61 Systemic and algorithmic bias reflect these types of impartiality because they reflect those that exist in the state,62 and do so through the use of unrepresentative, incomplete, or flawed data when programming machine learning technologies. Aside from systemic bias in China’s e-justice system being a grave ethical concern, its use also directly threatens the right to an impartial tribunal. Reliance on biased technologies, such as AI judges, provides faulty information for judges to base decisions on, which also affects the establishment of inaccurate precedents. Impartiality is also an issue in the use of judicial blockchain. If false events are added to the blockchain, the context of evidence can be misunderstood under false pretenses. Judicial blockchain is also permanent, in the sense that if incorrect evidence is uploaded to it, it is unable to be removed from the blockchain. Although proponents of judicial blockchain argue that its use actually protects evidence from being tampered with, it creates a new issue by not being able to edit evidence that has been tampered with before being uploaded to the blockchain. As a result, control over the blockchain itself becomes increasingly important. The abuse of evidence is derived from who controls the blockchain, as they are able to edit the blockchain and view the data uploaded to it. The use of these e-justice technologies violates impartiality by creating inaccurate and biased information to operate from.

The judicial AI in China has also received criticism for being incomplete, working on inconsistent records of digitized cases.63 Faults like these could make

60 CLOONEY & WEBB, supra note 37, at 106.

61 General Comment No. 32, supra note 41.

62 Langdon, supra note 23.

63 Wang & Tian, supra note 12, at 2–3.

AI judges prone to errors in judgment and operating via inaccurate precedents, which could impinge on the right to a fair procedure for those seeking justice. Although human judges review all the information provided by the AI, if a judge is unable to catch an error that was made due to overreliance, ignorance, or just lack of knowledge, the parties’ right to an impartial trial has been breached. Judges making decisions based on inaccurate information provided through China’s e-justice technologies is symmetrical to the use of tampered evidence in a trial. In Al-Khawaja v. United Kingdom, it was ruled that the use of faulty evidence and witnesses impacted the ability of the trial to be fair.64 This is synonymous with the use of AI being programmed on faulty data. If AI judges provide an inaccurate judgment that human judges are unaware of and take into consideration, an element of the decision-making process is not factually accurate, and therefore impedes the right to a fair trial.

D. Reasonable Time Frame

The right to have a trial in a reasonable amount of time is enshrined in Article 14 (c) of the ICCPR, stating that an individual must be “tried without undue delay.”65 Unreasonable lengths of trial and frequent delays are common to China’s judicial system, and are a large factor in why e-justice technologies emerged in the first place.66 General Comment 32 of the UNHRC elaborates on this, explaining that any unjustified delays detract from the principles listed in paragraph 1 of Article 14 (c) in the ICCPR.67 In the case of Fei v. Colombia, the UNHRC found that trials that do not meet the requirement of expeditious procedure do not constitute a fair trial.68 Some may argue that China’s e-justice system does not violate the right to a fair trial since it actually accelerates judicial processes, thereby increasing access to justice for more individuals and relieving the pressure from an overburdened legal system. The smart courts have proven

64 Al-Khawaja v. UK, 2011-VI Eur. Ct. H.R. 191, ¶ 128.

65 ICCPR, supra note 7, art. 14(c).

66 Shi, supra note 1.

67 General Comment No. 32, supra note 41.

68 Fei v. Col., Communication No. 514/1992, U.N. Hum. Rts. Comm., ¶ 8.4, U.N. Doc. CCPR/C/53/D/514/1992 (1995).

to be a huge advance in achieving both of these goals.69 In addition, smart courts allow trials to be more accessible to the public by allowing individuals with Internet access to tune into court hearings.70 Despite these benefits, the right to a fair trial is still violated with the use of the technologies in other respects as outlined prior to this section, and forces Chinese citizens seeking justice to opt into the e-justice system if they want to undergo the trial process on a reasonable timeline. This de facto coercion leaves many with no fair way to opt out of using this technology without risking a backlogged trial. The right to a speedy and fair trial should be a non-mutually exclusive human right guaranteed to all who seek justice not a decision made when given two faulty systems to select from.

Conclusion

The use of China’s e-justice technologies violates the right to a fair trial under international law. Through understanding how these technologies function and the resulting ethical implications, issues like systemic bias, accessibility, transparency, and security all translate into threats to due process. The various components of the right to a fair trial as established under the norms of international law include competence, independence, impartiality, and timely conduction.

The international laws that establish a right to a fair trial accommodate for the rising court technology around the world. Given that many of these innovations discussed are not in widespread use, there has not been much international action taken to clarify the boundaries of advanced court technology and its legality from an international perspective. Discussions regarding how to deal with the rise in court technology that can directly impact the outcome of a case are absolutely necessary. The current international policy trends toward AI show that it should proceed with severe caution. The European Commission has recognized that the use of AI can be “high-risk” by violating individual rights enshrined in the ECHR, specifically that of the right to a natural judge

69 Id.

70 Sung, supra note 3, at 12.

established by law and a fair trial.

71 Although China is the only state implementing this level of technology at the moment, other judiciaries around the world are moving in the same direction. In the United States, for example, the military is experimenting with the use of AI to replace the functions of court recorders, and also AI judges as well.72 The case of China’s e-justice system can be used as a precedent for the development of court technologies internationally by analyzing its benefits and taking concern to avoid repeating the same ethical and legal issues. It can also be used as evidence for upholding existing international documents to ensure the ethical use of these technologies. By understanding how China’s e-justice system violates the right to a fair trial, the same instruments used to evaluate this argument should be reflected on as a foundation for analyzing judicial technology. As a preliminary point, Article 14 of the ICCPR,73 Article 8 of the ACHR,74 and Article 6 of the ECHR75 should serve as a basis used for the legal standards of judicial technology. Analogies that have been drawn through international case law can and should also be used in this process as well.

There are also existing guidelines that international organizations have recently been trying to put together as tools for guidance. For example, the Council of Europe has recently adopted the first European charter on AI in judicial systems and ensures that it complies with the fundamental rights outlined in the ECHR.76 The principles of this charter attempt to overcome the ethical issues that lack accountability and presence in China’s e-justice system. This charter is a great start to opening an international conversation about evolving court technology but is necessary to continue growing and expanding

71 Fernando Esteban de la Rosa & John Zeleznikow, Making intelligent online dispute resolution tools available to self-represented litigants in the public justice system: towards and ethical use of the ai technology in the administration of justice, in PROCEEDINGS OF THE EIGHTEENTH INTERNATIONAL CONFERENCE ON ARTIFICIAL INTELLIGENCE AND LAW 195, 198 (Juliano Maranhão & Adam Zachary Wyner eds., 2021).

72 Fredric I. Lederer, The Evolving Technology-Augmented Courtroom Before, During, and After the Pandemic, 23 VAND. J. ENT. & TECH. L. 301, 313 (2021).

73 ICCPR, supra note 7.

74 ACHR, supra note 9.

75 ECHR, supra note 8.

76 See EUR. COMM’N FOR THE EFFICACY OF JUST., EUROPEAN ETHICAL CHARTER ON THE USE OF ARTIFICIAL INTELLIGENCE IN JUDICIAL SYSTEMS AND THEIR ENVIRONMENT (Dec. 4, 2018).

at the rate of technological development. In December 2022, the EU began to make progress in passing the first international law about the use of AI, known as The AI Act. This act creates levels of risk assessment for AI used in all sectors within different nations and is hoped to eventually become accepted as a global standard for AI evaluation.77 This achievement is the right way to proceed on an international scale, and future laws enacted should continue to protect fundamental human rights like that of a just trial. The standards for the use of AI in judicial processes should remain high and thoroughly enforced. These advancements are great for the issues of AI in governmental sectors but lack coverage on other issues that arise from technologies like blockchain, or guidelines as to how to minimize a conflict of interest when developing court technologies. The intention for the advancement of China’s court system could be good and has resulted in some positives, such as relieving the burden from an overinflated system and expanding access to justice for certain groups through availability. However, it is important to proceed with caution given the severity of human rights abuses that can follow with the manipulation of the technology involved. Current and future international law needs to consider this in its evaluation of judicial technologies.

77 See Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts, COM (2021) 206 final (Apr. 21, 2021).

UCLA UNDERGRADUATE LAW JOURNAL

Rina Rossi*

AB 31: How California’s Transphobic Menstrual “Equity” Bill Violates Bostock v. Clay County

ABSTRACT. Transgender and non-binary individuals have faced discrimination in U.S. tax laws, encountered barriers to accessing reproductive healthcare, and are not widely acknowledged as menstruators by the current menstrual equity movement. California AB 31, a menstrual equity bill, fails to use gender-inclusive language to acknowledge transgender and non-binary individuals as menstruators. This article argues that the gender-exclusive language used in California AB 31 is a violation of Bostock v. Clay County, which found that discrimination against transgender individuals is inextricably tied to sex. Specifically, AB 31 applies the “but-for” causation standard and follows Justice Gorsuch’s definition of transgender discrimination being “inextricably bound up with sex.” Ultimately, in order for California AB 31 to achieve menstrual equity for all, California legislators should employ the gender-neutral language used in the Family and Medical Leave Act of 1993 discussed in Nevada Department of Human Resources v. Hibbs and California AB 367.

*Rina Rossi studied Political Economy and Classics at UC Berkeley, graduating in 2022. She will attend either Columbia University or New York University for graduate school this Fall, pursuing Latin America & Caribbean Studies. In the future, Rina hopes to teach undergraduates about Caribbean politics and history, as well as serve as a reproductive justice attorney.

Editor: Leila Chiddick is a second-year Global Studies student with a Professional Writing minor at UCLA. She is primarily interested in health law, specifically educating Black women on their healthcare rights and increasing their access to equitable care. It was a pleasure for Leila to work with Rina on this article and advocate for the menstrual rights of the Trans community.

Introduction

On July 12, 2022, Khiara Bridges, Professor of Law at the UC Berkeley School of Law, testified before the Senate Committee on the Judiciary to speak about how the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization “inflicts a racial injury” to individuals whose access to abortion are inhibited by structural inequities.1 When questioned by Missouri Senator Josh Hawley if her reference to “people with a capacity for pregnancies” throughout her testimony was synonymous with “women,” Bridges noted that cisgender women, transgender men, and non-binary individuals can all become pregnant, and that abortion criminalization is not only a women’s issue.2 Bridges continued to note that Senator Hawley’s questions were transphobic and denied the existence of transgender individuals. In particular, Hawley asserted that he did not believe transgender men have the ability to become pregnant.3 Following Bridges’ testimony, the video of Bridges reprimanding Hawley for his comments went viral worldwide and sparked discourse about gender inclusivity in reproductive justice.4

Transgender individuals are a “group of people whose birth-assigned sex, gender identity, and secondary sex characteristics do not align.”5 Despite advocates implementing non-discrimination initiatives at the local, state, and federal levels, transgender individuals report high levels of discrimination, harassment, and violence.6 In particular, reproductive justice researcher Laura Nixon asserts that “transgender people are among the most targeted populations in the United States with many facing discrimination in nearly every aspect of

1 A Post-Roe America: The Legal Consequences of the Dobbs Decision Before the S. Comm. on the Judiciary, 117th Cong. 1 (2022) (statement of Khiara M. Bridges, Professor of Law, U.C. Berkeley Sch. of Law).

2 ABC News, Law professor Khiara Bridges has heated exchange with senator, Youtube (July 14, 2022), https://www.youtube.com/watch?v=PgNSJUHxUe8.

3 Id.

4 Jo Yurcaba, Law professor Khiara Bridges calls Sen. Josh Hawley's questions about pregnancy ‘transphobic’, NBC News (July 13, 2022), https://www.nbcnews.com/nbc-out/out-politics-andpolicy/law-professor-khiara-bridges-calls-sen-josh-hawleys-questions-pregnanc-rcna38015.

5 Laura Nixon, The Right To (Trans) Parent: A Reproductive Justice Approach To Reproductive Rights, Fertility, And Family-Building Issues Facing Transgender People, 20 Wm. & Mary J. Women & L. 73 (2013).

6 Id.

life,” including employment, healthcare, law enforcement, housing, and public accommodations.7 Transgender people also face barriers to reproductive healthcare. Nevertheless, these difficulties are overlooked by both the mainstream reproductive justice and LGBTQIA+ movement, which have yet to adequately incorporate transgender healthcare needs into their advocacy.8

One such example of the reproductive justice movement’s failure to address the barriers faced by transgender and non-binary people in healthcare lies in the gender-exclusive language in tax exemptions for menstrual products, such as California AB 31. California AB 31, or the “Sales and Use taxes: exemption: menstrual hygiene products,” only references women as those who menstruate and suffer from taxations on menstrual products, even though many transgender and non-binary individuals menstruate.9 The ACLU commented on the lack of gender-inclusive language in global mobilization for menstrual equity through the elimination of the tampon tax. Specifically, they asserted that “some arguments that challenge discriminatory laws based on sex-linked characteristics have made the point that ‘only women’ menstruate, get pregnant, or breastfeed.”10 Despite this gender-exclusive language, the ACLU argued that menstrual stigma and barriers to accessing menstrual products disproportionately affect transgender and non-binary individuals.11

This article will provide a unique examination of California AB 31, as I will argue that the gender-exclusive language of the bill is discriminatory towards transgender and non-binary menstruators and violates Bostock v. Clayton County. Drawing upon an early legal challenge to the tampon tax, as argued in Geary v. Dominick's Finer Foods, I will provide a background on how feminists started to advocate for the exemption of tampon taxes. I will then analyze the facts and findings of Bostock and explain the history and policy of California AB 31. Next, I will argue that California AB 31 is a violation of the Bostock decision through its

7 Id. at 76.

8 Id. at 78.

9 A.B. 31, Leg., 2019-20 Reg. Sess. (Ca. 2019) [hereinafter A.B. 31].

10 Gabriel Arkles & Jennifer Weiss-Wolf, Sex Discrimination We Don’t Need to Erase Trans or Non-Binary People to Make That Point, Am. C.L. Union (Dec. 17, 2019), https://www.aclu.org/news/lgbtq-rights/menstruation-related-discrimination-is-sexdiscrimination-we-dont-need-to-erase-trans-or-non-binary-people-to-make-that-point.

11 Id.

use of gendered language. Specifically, the bill satisfies the “but-for” causation standard and fits Justice Gorsuch’s definition of transgender discrimination as being “inextricably bound up with sex.”12 To conclude, I encourage menstrual equity advocates and California legislators to examine the gender-inclusive terminology employed in the family work leave policy detailed in Hibbs and California AB 367. Therefore, lawmakers can improve the gender inclusivity of California AB 31.

I. Taxation Law on Menstrual Products and California Assembly Bill 31

The discourse surrounding taxation on menstrual products has been a salient part of the feminist movement and menstrual equity advocates’ agenda, dating back to Geary. The next section will outline how menstrual products are subject to consumption taxes, as well as how tampon taxes create financial insecurity for menstruators. Additionally, the ensuing sub-section will detail the case of Geary and the decision’s effect on the current menstrual equity movement’s initiatives to abolish tampon taxes. This section will close by discussing California AB 31, the menstrual equity bill eliminating tampon taxes in California.

A. The Tampon Tax

In 2016, feminist activism reinvigorated the focus on menstrual inequity worldwide, setting their sights on eradicating taxation on menstrual products.

13 The New York Times Editorial Board published an opinion piece entitled “End the Tampon Tax,”14 calling to abolish taxes on menstrual products, and Time Magazine labeled 2016 the “Year of the Period.”15 This newfound interest in

12 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1742 (2020).

13 Value-Added Tax in Europe: Freedom Fighters, THE ECONOMIST (May 14, 2016), http://www.economist.com.libproxy.berkeley.edu/news/finance-and-economics/21698694reforms-vat-may-lead-more-democratic-convoluted-system-freedom-fighters.

14 Editorial Bd., Opinion, End the Tampon Tax, N.Y. TIMES (Feb. 8, 2016), https://www.nytimes.com/2016/02/08/opinion/end-the-tampon-tax.html.

15 Maya Rhodan, Tampon Tax Ends in States After ‘Year of the Period’, TIME MAG. (June 3, 2016), http://time.com/4355164/tampon-tax-ends-in-states-after-year-of-the-period.

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

stripping taxation on menstrual products resulted from the menstrual equity movement underscoring the connection between taxes and feminism.16

The “tampon tax” an all-encompassing term referring to sales taxes placed on any menstrual product is a consumption tax in the United States and a value-added tax elsewhere.17 Under consumption taxes, the tax base is consumption. Thus, the tampon tax refers to the use of menstrual products being taxed.18 Sales taxes can be applied at both the local and state levels in the United States and are imposed in forty-five states and the District of Columbia as of 2022. State sales taxes range as high as 7.25% in California to as low as 2.9% in Colorado.19 Since sales taxes are regressive, meaning that “after-tax income is less equally distributed than before-tax income.”20 Lower-income individuals will almost always pay a greater portion of their income in sales taxes than higher-income individuals, who can save larger proportions of their income.21

The burden of taxing menstrual products falls disproportionately on women as a single woman spends over $18,000 on menstrual products to manage monthly menstrual flows in her lifetime.22 Because there are no male products comparable to tampons or other menstrual products, tax law is necessary to achieve gender equity.23 Also, while menstrual products are taxed, items such as lip balm and dandruff shampoo were exempt from federal and state taxes due to their classification as “necessities” or “medical appliances.”24 Similarly, other medical supplies such as Viagra, baby oil, moisturizers, and prescription drugs were already exempt from sales taxes in California in 2016, before the

16 Jorene Ooi, Note, Bleeding Women Dry: Tampon Taxes And Menstrual Inequity, 113 NW. U.L. REV. 109 (2018).

17 Bridget J. Crawford & Carla Spivack, Tampon Taxes, Discrimination, and Human Rights, 2017 WIS L. REV. 493 (2017).

18 Ooi, supra note 16, at 116.

19 Janelle Fritts, State and Local Sales Tax Rates, Tax Found. (Feb. 3, 2022), https://taxfoundation.org/2022-sales-taxes/.

20 Thomas Piketty & Emmanuel Saez, How Progressive Is the U.S. Federal Tax System? A Historical and International Perspective, 21 J. ECON PERSP 3 (2007).

21 Ooi, supra note 16, at 117.

22 Jessica Kane, Here's How Much A Woman's Period Will Cost Her Over A Lifetime, HUFFINGTON POST (May 18, 2015), https://www.huffpost.com/entry/period-cost-lifetime_n_7258780.

23 Crawford & Spivack, supra note 17, at 495.

24 Victoria Hartman, Note, End The Bloody Taxation: Seeing Red On The Unconstitutional Tax On Tampons, 112 Nw. U.L. Rev. 313, (2017).

passage of California AB 31 in 2019.25 The menstrual equity movement also called for the eradication of taxes on menstrual products to make the products more affordable for low-income and houseless menstruators who lack access to menstrual products.26 In particular, a study examined the accessibility of menstrual products within St. Louis not-for-profit organizations serving lowincome women aged 18 and over 64% of the women surveyed reported that they could not afford menstrual products during the previous year.27 As demonstrated in Geary v. Dominick's Finer Foods, menstrual equity activists advocated for a shift in the idea of menstrual products as necessities, rather than luxuries.

B. Early Challenge to Menstrual Taxations: Geary v. Dominick’s Finer Foods

Geary v. Dominick's Finer Foods, a Supreme Court case in 1989, was an early legal challenge concerning tampon taxes. Three female consumers in Cook County, Illinois, alleged that the defendants illegally imposed taxes on sanitary napkins and tampons.28 In particular, the plaintiffs argued that tampons were necessities and “medical appliances,” which were products that the state of Illinois exempted from sales taxes. 29 The plaintiffs also sought injunctive relief and restitution for past state and city sales taxes paid for menstrual products. The Court allowed the claim for tax restitution to move forward but restricted the plaintiff’s restitution claim period to five years.30 However, the defendants in Geary argued that since menstruation is not an illness, but a normal bodily function, menstrual products cannot be deemed medical appliances. The Court reasoned that menstrual products “serve an absorbent function similar to that

25 Anna North, Opinion, Jerry Brown's Disappointing Tampon Tax Decision, N.Y. TIMES: TAKING

NOTE (Sept. 14, 2016), https://takingnote.blogs.nytimes.com/2016/09/14/jerry-brownsdisappointing-tampon-tax-decision.

26 Christopher Cotropia & Kyle Rozema, Who Benefits from Repealing Tampon Taxes? Empirical Evidence from New Jersey, 15 JOURNAL OF EMPIRICAL LEGAL STUDIES 622 (2018).

27 Sebert Kuhlmann et al., Unmet Menstrual Hygiene Needs Among Low-Income Women, 133 OBSTETRICS & GYNECOLOGY 238 (2019).

28 Geary v. Dominick’s Finer Foods, 129 Ill. 2d 389 (1989).

29 Id.

30 Crawford & Spivack, supra note 17, at 532.

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

of cotton and band aids,” the latter two products being defined as medical appliances under the city’s regulations.31 The Court continued to reason that sanitary napkins and tampons are not only used to treat menstruation. However, they are also “used by many post-surgical patients of both sexes and all ages,” determining that menstrual products are medical appliances, setting an important precedent in the menstrual equity movement.32 After the filing of the case, the state of Illinois modified its sales tax law, altering its interpretation of tax-exempt goods considered “medical appliances” to include menstrual products

Geary engendered discussion surrounding the notion of the necessity of menstrual products, an idea that is central to the menstrual equity movement’s advocacy to repeal tampon taxes.33 Menstruators’ choices are either to pay the tampon tax or to not wear menstrual products. However, because menstruation is a normal bodily process that one does not have control over, menstruators need menstrual products to continue with their daily lives.34 Former First Lady Michelle Obama underlined the connection between school productivity and lack of access to period products.35 In addition, U.S. Representative Grace Meng noted that some girls have no choice but to skip school during their menstrual flows if they cannot access period products.36 Geary points to the necessity of tax-exempt menstrual products, as the high price of such products disadvantages the education of young menstruators. Furthermore, Geary’s determination that menstrual products are medical necessities also points to increasing healthcare access and eradicating the tampon tax, since low-income individuals may not be able to afford period products in the first place.37

31 Id. at 355.

32 Id.

33 Mansee Khurana, The Case for Free Tampons and Pads in Schools, NAT’L PUB. RADIO (Dec. 2, 2021), https://www.npr.org/2021/12/02/1056830306/free-tampons-public-schools.

34 Ooi, supra note 16, at 125.

35 Tonjanique Evans et al., PERIODS, POVERTY, AND THE NEED FOR POLICY: A REPORT ON MENSTRUAL INEQUITY IN THE UNITED STATES 7 (2018)

36 Grace Meng, Our Laws Period-Shame Women So I'm Going to Change Them, MARIE CLAIRE (Feb. 17, 2017), http://www.marieclaire.com/politics/news/a25464/congresswoman-gracemeng-menstrual-equity-bill.

37 Ooi, supra note 16, at 125.

Additionally, Geary questions how periods are framed: are menstrual flows an illness or a natural bodily function?38 The defendants in Geary argued that since menstruation is not an illness, but a normal bodily function, menstrual products cannot be deemed medical appliances. The tax-exemption rule for medical appliances holds that such appliances are used to correct or substitute a functioning part of the body, such as a band aid, crutch, hearing aid, or wheelchair.39 In particular, the defendants argued that nonmedical appliances are used for hygienic reasons. Since tampons are used for hygienic purposes, the defendants asserted they are not medical appliances.40 In line with the defendants’ reasoning for what constitutes a medical appliance, menstruation must be framed as an illness. Therefore, the plaintiffs must argue that tampons are used to correct a part of the body, unless they wish to find another justification for the tax exemption.41

In addition to prompting examination regarding the necessity of menstrual products in the lives of menstruators, Geary has significant implications for how the current menstrual equity movement can advocate for legislation to support menstrual rights. Geary and ensuing events in Chicago demonstrate the “slow pace of change” regarding menstrual inequity reform in the courts.42 Specifically, after the Illinois Supreme Court rendered the decision for Geary, and returned the case to the lower courts, the city of Chicago and the state of Illinois continued to place menstrual pads and tampons under the sales tax. Consequently, menstrual products were categorized as “grooming and hygiene products” until the repeal of the tampon tax in Chicago and Illinois in 2016, where menstrual products were ultimately classified as “medical necessities.”43 Chicago and Illinois menstruators’ laborious fight for menstrual products to be deemed as medical necessities demonstrates a need for menstrual equity activists nationwide to advocate for attainable solutions with a motivated voter

38 Id. at 126.

39 Geary v. Dominick’s Finer Foods, 129 Ill. 2d 389 (1989).

40 Id.

41 Ooi, supra note 26, at 126.

42 Id.

43 Chi., Ill. Mun. Code § 3-40-010.

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

base rather than temporary measures.44 Legal scholar Victoria Hartman asserts that the legislators and courts have a simple decision to make: repealing the tampon tax.45 Yet, eradicating it through legislation like California AB 31 only reduces the burden on menstruators by mere cents.46

C. Menstrual Taxation Repeal in California: Assembly Bill 31

In line with Geary, California lawmakers sought to eradicate the tampon tax through the passage of California AB 31. On December 3, 2018, California State Representatives Garcia, Bonta, Gonzalez, and Mathis introduced the “Sales and use taxes: exemption: menstrual hygiene products,” or California AB 31, to the California Assembly.47 This bill, which was passed on January 27, 2020, with 47 sponsors, called for the exemption of menstrual products from taxes until July 1, 2023.48 The bill's authors stated that cities and counties are authorized to impose tampon taxes due to the Bradley-Burns Uniform Local Sales and Use Tax Law. Similar to the plaintiffs of Geary, the authors of California AB 31 reference the Sales and Use Tax Law exemptions, which excuse goods deemed “necessities of life” from taxation. The authors of the bill also explain that existing law decrees state reimbursement for revenue losses from Sales and Use Tax exemptions to cities and counties.49 In addition, the bill calls upon the Legislature to declare that menstrual products are the only gender-specific items in state tax laws and that menstrual products are not luxuries. Rather, the authors assert that menstrual products are necessities for women menstruators to participate in society.50

While the authors of California AB 31 emphasized the burden tampon taxes have on women, they failed to mention how such taxation affects transgender and non-binary menstruators. The next section will discuss how the authors’

44 Ooi, supra note 16, at 126.

45 Hartman, supra note 24, at 353.

46 Ooi, supra note 16, at 126.

47 A.B. 31, supra note 9.

48 Id.

49 Id.

50 Id. at 3.

exclusion of transgender and non-binary menstruators from California AB 31 is a violation of the Bostock decision, a legal challenge to sex-based discrimination.

II. The Bostock Decision and Gender Exclusivity in California AB 31

A. Background of Bostock v. Clay County

The Bostock decision is one of the most significant legal cases in LGBTQIA+ and gender rights because it “fundamentally redefined what it means to discriminate because of sex.”51 In particular, Bostock expanded the definition of sex discrimination to include discrimination based on any characteristic related to sex. Bostock follows Gerald Bostock, a Clayton County child welfare advocate, who was fired from his job after his employer discovered that Bostock was part of a gay softball league.52 According to his employer, Bostock was fired for conduct “unbecoming” of a county employee.53 The Court issued an opinion in the Bostock case on June 15, 2020, in consolidation with Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC 54 The opinions were consolidated as all employees in these cases sued on the basis of sex discrimination under Title VII of the Civil Rights Act of 1964.55 Similar to Bostock’s experience, Aimee Stephens, a funeral director assigned male at birth, was fired from her job at R. G. & G. R. Harris Funeral Homes after she informed her boss that she intended to live and work as a woman. In addition, skydiving instructor, Donald Zarda, was fired by Altitude Express just days after stating he was gay.56 In all three cases, it is apparent that each employee was fired due to their gender identity and sexual orientation, leading the lower courts to deliberate whether the firings were a violation of Title VII.57 Following a split in the circuit court decisions, differing positions taken by federal agencies, as well

51 Susannah Cohen, Note, Redefining What It Means To Discriminate Because Of Sex: Bostock’s Equal Protection Implications, 122 COLUM L. REV 407 (2022).

52 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1737–38 (2020).

53 Id.

54 Id.

55 Cohen, supra note 51, at 428

56 Bostock, 140 S. Ct. at 1734.

57 Cohen, supra note 51, at 428.

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

as local and state laws, the combined cases reached the Supreme Court, where one ruling was ultimately issued for all.58 In a 6–3 decision, the Supreme Court held that Title VII’s prohibition of discrimination “because of…sex” also included discrimination based on gender identity and sexual orientation.59

The case resulted in three textualist opinions, with Justice Gorsuch joined by Chief Justice Roberts, and Justices Breyer, Ginsburg, Sotomayor, and Kagan, writing the majority opinion. Additionally, Justice Kavanaugh wrote his own dissent, while Justice Alito wrote a dissent on behalf of himself and Justice Thomas.60 Specifically, Justice Gorsuch asserted that employees who discriminate “against employees for being homosexual or transgender . . . necessarily and intentionally discriminates against that individual in part because of sex.”61 Gorsuch argues that the meaning of “because of” in the phrase “because of…sex” used in Title VII refers to a “but-for” causation standard.62 The “but-for” causation standard indicates that a certain outcome would not have occurred but for the alleged cause: in this case, the worker’s sex.63 Notably, the essence of Justice Gorsuch’s opinion is his affirmation that gender identity and sexual orientation are logically inseparable from sex, as Gorsuch proclaimed: “[H]omosexuality and transgender status are inextricably bound up with sex.”64

Consequently, the relationship between gender identity, sex, and sexual orientation became the crux of the Court’s deliberation and holding, with the majority discussing the “but-for” causation. In particular, the Court considered an example of an employer whose job applications only ask if applicants are transgender or homosexual and ultimately declines to hire those applicants.65 In this case, the Court maintains that the employer would be practicing sex discrimination because the applicant’s sex is a causal factor in the employer’s

58 Alix Valenti, LGBT Employment Rights in an Evolving Legal Landscape: The Impact of the Supreme Court’s Decision in Bostock v. Clayton County, Georgia, 33 EMP. RESP. & RTS. J. 3 (2021).

59 Cohen, supra note 51, at 429.

60 Id.

61 Bostock, 140 S. Ct. at 1743–44.

62 Cohen, supra note 51, at 430.

63 Bostock, 140 S. Ct. at 1731-34.

64 Id. at 1742

65 Cohen, supra note 51, at 432.

hiring decision.66 By discriminating against transgender individuals, one discriminates against individuals identifying differently from their sex assigned at birth.67 Furthermore, the Court asserted, “any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.”68 Thus, the Court demonstrated that it is impossible to define “homosexual” or “transgender” without referencing sex.69

The Court’s decision reached in Bostock is only applicable to employment discrimination. However, the analysis surrounding sex discrimination from Bostock can also be applied to the societal discrimination transgender and nonbinary individuals face, especially navigating their experiences as menstruators. Specifically, transgender and non-binary menstruators are excluded from menstrual equity legislation, denying their existence as menstruators. In particular, California AB 31, a bill exempting tampons from taxation, fails to mention that transgender and non-binary individuals menstruate. This exclusion of transgender and non-binary individuals is an example of sex discrimination and a violation of Bostock.

B. Gender-Exclusive Language in AB 31 and Non-Traditional Menstruators

While California AB 31 has garnered ample support from California legislators, it lacks gender-inclusive language, failing to mention transgender and non-binary menstruators in the bill.70 Specifically, California AB 31 only mentions women as those who menstruate, pay taxes for menstrual products, and deserve the lost revenue from paying tampon taxes.71 The gender-specific language in California AB 31 is part of a larger issue within the reproductive justice movement regarding gender exclusivity. Transgender individuals are

66 Id.

67 Id.

68 Id.

69 Cohen, supra note 51, at 433.

70 Assembly Floor Analysis, California Legislative Information: Bill Analysis (Jan. 24, 2020), https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200AB31 [hereinafter Bill Analysis].

71 A.B. 31, supra note 9, § 3.

excluded from the mainstream reproductive rights and LGBTQIA+ movement.72 Gender exclusivity often fails to acknowledge transgender individuals as menstruators, even though they face many barriers to accessing reproductive healthcare. 73,74 Consequently, transgender and non-binary menstruators are disadvantaged by reproductive healthcare access because they are excluded by policies seeking to expand menstrual equity.75

More broadly, the exclusion of transgender and non-binary individuals in California AB 31 is representative of the gender discrimination non-cisgender people often experience. Transgender and non-binary menstruators are excluded from discussion in the menstrual equity movement’s nationwide advocacy to eradicate the tampon tax.76 A particular example menstrual equity advocates point out are products like Viagra which are exempt from taxations while tampons remain taxed, making tampon taxes “a tax on women.”77 Therefore, advocates argue that tampon taxes violate the Equal Protection Clause, the 14th Amendment providing all U.S. citizens with “equal protection of the laws.”78 Menstrual equity activists argue that the tax disproportionately affects women while men can purchase Viagra without taxes, reinforcing a gender-binary perspective.79 Yet, these advocates fail to recognize that transgender and non-binary individuals can buy Viagra or menstrual products, bringing their argument that tampon taxes disproportionately affect women to scrutiny. Applying Justice Gorsuch’s definition of transgender discrimination being “inextricably bound up with sex” in Bostock and the “but-for” causation standard, the next section will analyze how the exclusion of transgender and non-binary menstruators from California AB 31 is a violation of the Bostock decision.80

72 Nixon, supra note 5, at 74.

73 Margaret E. Johnson, Menstrual Justice, 53 U.C. DAVIS L. REV. 1 (2019).

74 JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 2 (2011).

75 Johnson, supra note 73, at 2.

76 Id. at 38.

77 Bridget J. Crawford & Emily Gold Waldman, The Unconstitutional Tampon Tax, 53 U. Rich. L. REV. 439, 473–75 (2019).

78 U.S. CONST. amend. XIV.

79 Johnson, supra note 73, at 38.

80 Bostock, 140 S. Ct. at 1742.

III. AB 31 and Bostock Violations

A. AB 31 and the “but-for” Causation Standard

California AB 31’s use of exclusive language for transgender and non-binary menstruators demonstrates that the bill is a violation of Bostock, exemplified through analyzing the “but-for” causation standard.81 Just as sex is a “but-for” cause when an employer discriminates against a transgender or homosexual employee, transgender and non-binary menstruators are discriminated against by the use of gender-exclusive language in California AB 31 because of their sex.82 California AB 31 utilizes gender-specific language in Section I of the authors’ request for the state of California to enact tax exemptions on menstrual products. Specifically, the authors assert that menstrual products are not luxuries, but rather are necessities for women menstruators to participate in society.83 Transgender men, as well as non-binary individuals, can menstruate, and both groups do not fit in the sex referenced in California AB 31. Thereby, transgender men and non-binary individuals are being inherently excluded, as their sex is omitted from the bill. This language separates transgender and nonbinary menstruators from those who need menstrual products to participate in society.

The bill notes that the state of California must recognize that California women pay more than $20 million in taxes annually on menstrual products. In addition, the authors assert the money paid as tampon taxes belongs “in the pockets of California women.”84 This is an example of the “but-for” causation standard because transgender and non-binary menstruators are discriminated against in the clause due to the explicit reference to only one sex that of female that is not inclusive of their own sex. The bill relies solely on the burden that menstrual taxation has on women without considering or stating that transgender and non-binary menstruators experience this same burden. Sex is a “but-for” cause in the clauses of California AB 31 because the bill explicitly

81 Id. at 1739.

82 Id. at 1731.

83 A.B. 31, supra note 9, § 3.

84 Id.

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

relies on sex for its decision-making.85 Specifically, the bill relies on sex to advocate for financial empowerment, as California AB 31 notes that the $20 million paid in tampon taxes belongs to California women. By explicitly mentioning only “California women” in this clause even though California transgender and non-binary individuals menstruate and pay tampon taxes

California AB 31 discriminates against non-cisgender women menstruators by implying that they do not pay tampon taxes and do not deserve their lost revenue from such taxes. In other words, California AB 31 is written in a manner that only encompasses cisgender menstruators’ experiences. Transgender and nonbinary menstruators are discriminated against as a result of the bill’s exclusive language due to their sex falling outside of the man-woman binary, which is not mentioned in the bill. Such discrimination and exclusion will also be discussed in the next section, further demonstrating discrimination against transgender menstruators is made based on sex.

B. “Inextricably bound up with sex”

Justice Gorsuch’s definition of transgender discrimination being “inextricably bound up with sex” exemplifies another way in which genderexclusive language in California AB 31 is a violation of Bostock. 86 Specifically, in Section I, the authors’ call on the state of California to enact the exemption of menstrual products from taxation and criticize the gender-specificity of the tax law. The authors argue that “menstrual products, including tampons, pads, and menstrual cups, are the only gender-specific items in California’s tax laws.”87 It is inaccurate for the authors of California AB 31 to proclaim that tampon taxes while inequitable are gender-specific and only affect women. Nonetheless, in the exposition of the bill, the authors assert that menstrual products should not be taxed due to their gender-specificity. In particular, the authors note that menstrual products are not exempt from taxes even though they are not luxuries

85 Bostock, 140 S. Ct. at 1731–34.

86 Id. at 1742.

87 A.B. 31, supra note 9, § 3.

and women do not have the option to stop their menstrual flows.88 Additionally, the bill describes a menstrual product as “an essential health product within the state tax laws that one gender must use each month for 40 years of life.” 89 Due to the bill’s continuous reference to women as the female sex, it can be inferred that the bill's authors were trying to argue that the “one gender” who menstruates monthly is a woman. While it is true that many menstruators are women, and women do not have control over their menstrual flows, transgender and non-binary individuals also menstruate monthly. By only mentioning the female sex throughout the bill, transgender and non-binary menstruators are discriminated against because they may not fit within the traditional gender binary.

As Justice Gorsuch asserted in the majority opinion, “homosexuality and transgender status are inextricably bound up with sex,” and this is evident throughout California AB 31’s gender-exclusive language.90 Specifically, a menstruator’s sex is a factor used to determine who gets exempt from taxation or who supposedly benefits from the tax exemption. In Bostock, the Court held that an employer who refuses to hire a transgender individual without asking for any sex-identifying information is an example of sex discrimination. Similarly, California AB 31 discriminates against transgender and non-binary individuals due to their exclusion from the bill, even if authors of the bill were unaware of the menstruator’s sex.91

While California AB 31 employed gender-exclusive terminology throughout its bill, the Family and Medical Leave Act of 1993 (FMLA), which lied at the core of Nevada Department of Human Resources v. Hibbs, utilized gender-neutral language. Specifically, in 2003, the Supreme Court found that under the 14th Amendment, Congress had the authority to institute “mandatory,

88 Bill Analysis, supra note 70, at 3.

89 Id. at 3.

90 Bostock, 140 S. Ct. at 1746.

91 A.B. 31, supra note 9.

C. Nevada Department of Human Resources v. Hibbs and Reforming California AB 31

CALIFORNIA’S TRANSPHOBIC MENSTRUAL “EQUITY” BILL

genderneutral [sic], federal family leave” just like it did in the FMLA in Hibbs. 92

The FMLA is a labor law permitting eligible employees to take up to 12 weeks of unpaid work leave for family or medical reasons.93 In Hibbs, the FMLA sought to “protect the right to be free from gender-based discrimination in the workplace” and noted that “statutory classifications that distinguish between males and females are subject to heightened scrutiny.”94 Additionally, the FMLA sought to make work leave gender-neutral rather than enforce gender stereotypes regarding family duties.95 The FMLA’s reasoning to enact genderneutral family leave in Hibbs demonstrates the Bostock decision’s precedent that sex is a “but-for” cause. 96 The FMLA’s reasoning aligns with the “but-for” causation standard as they argued that their family leave policy was written in gender-neutral terms to avoid gender discrimination. In particular, genderbased discrimination in the workplace against those who deviate from traditional family duties, such as transgender, non-binary, or LGBTQIA+ employees, would also be “inextricably bound up with sex,” and thus, a violation of Bostock. 97 The FMLA’s recognition of discriminatory sex distinctions in work policies also indicates that California AB 31 should revise its own genderexclusive terminology.98 California AB 31, which specifies a certain sex, thereby reinforces discriminatory narratives about transgender and non-binary menstruators.99

While Hibbs and California AB 31 are policies that deal with different aspects of daily society, legislators should look to Hibbs if they wish to improve the gender inclusivity of California AB 31. Legislators and menstrual equity advocates could adopt the gender-neutral language used in the FMLA’s family leave policy, since menstruation is a gender-neutral bodily process.100 Additionally, advocates could utilize gender-neutral language in California AB

92 Cohen, supra note 51, at 425.

93 29 U.S.C. § 2612.

94 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003).

95 Cohen, supra note 51, at 426.

96 Bostock, 140 S. Ct. at 1739.

97 Hibbs, 538 U.S. at 724 (citing Bostock, 140 S. Ct. at 1742).

98 Id. at 724.

99 Bostock, 140 S. Ct. at 1746–47.

100 Johnson, supra note 73, at 34.

31 to protect transgender and non-binary menstruators from “gender-based discrimination.”101 Consequently, altering California AB 31’s language to a gender-neutral format would facilitate greater inclusion of transgender and nonbinary menstruators’ overlooked reproductive needs in society and public policy.102

D. Reconstructing Menstrual Tax Laws through California AB 367

Similar to the FMLA’s family leave policy debated throughout Hibbs, California legislators could analyze menstrual equity policy California AB 367 to reform the gender-exclusive terminology used in California AB 31. California AB 367, or “menstrual products,” was passed on October 8, 2021, and enacted the Menstrual Equity for All Act 2021 to go into effect in the 2022-23 school year.103 The act required all California public schools supporting any combination of classes between grades 6 and 12 to supply all-gender restrooms, women’s restrooms, and at least one men’s restroom with a sufficient amount of menstrual products. California AB 367 also mandated the California State Universities and each California community college district to provide an adequate supply of menstrual products at no less than one designated and accessible location on each campus.104 California AB 367 expands “menstrual equity for all” by utilizing gender-neutral language and recognizing that menstruation and menstrual inequity is an experience beyond the cisgender female sphere.105 In particular, California AB 367 refrains from using genderspecific language not only in the text detailing what the bill entails, but also in the authors’ reasoning for how menstrual inequity affects a certain group of individuals. While California AB 31 called for the state of California to recognize how taxation on menstrual products solely affected women’s socioeconomic

101 Cohen, supra note 51, at 425.

102 Johnson, supra note 73, at 2.

103 A.B. 367, Leg. 2021-2022 Reg. Sess. (Ca. 2021) [hereinafter A.B. 367].

104 Id.

105 Id. § 2.

equity, California AB 367 also emphasized the unique experiences that transgender and non-binary menstruators may have with menstrual inequity.106

Menstrual equity advocates and California legislators could look to the gender-neutral language and reasoning utilized in California AB 367 to reform California AB 31. Specifically, advocates could analyze California AB 367’s reasoning for why tampons should not be taxed. Advocates should specifically examine Section I of the bill, which outlines the barriers and inequities transgender menstruators face while trying to access tampons.107 Additionally, California lawmakers need to examine California AB 367’s commitment to expanding menstrual equity for all genders, specifically its objective to “normalize menstruation among all genders.”108 Such analysis and reform of gender-inclusive language and reasoning are necessary to rectify California AB 31’s transphobic implications that transgender and non-binary individuals are not real menstruators who do not experience menstrual inequity in the same way as cisgender women.109

Conclusion

From Geary to Bostock to California AB 31, achieving menstrual equity has been an arduous legal battle. Specifically, some of the most vulnerable menstruators, including transgender and non-binary individuals, are excluded from the legislative equation. Transgender and non-binary menstruators are discriminated against in California AB 31 due to the “but-for” causation standard established in the Bostock decision. Recognizing these discriminatory exclusions, states and jurisdictions that wish to implement policies exempting menstrual products from taxes need to advocate for robust, gender-inclusive initiatives. Legislators must reform California AB 31 to use gender-neutral terminology just like the FMLA’s family leave policy. Additionally, legislators need to analyze and replicate menstrual equity bills that employ gender

106 A.B. 367, supra note 103, § 2; Garcia, et al., supra note 70, at 4.

107 Id.

108 Id.

109 Johnson, supra note 73.

inclusivity, such as California AB 367, which demonstrated a commitment to expand menstrual equity for all genders. Therefore, lawmakers must revise California AB 31 to include the unique challenges to accessing tampons for transgender and non-binary menstruators. However, a gender-inclusive bill like California AB 367 is already in action in California. In that case, state legislators need to work to reform all laws that administer menstrual equity, such as California AB 31. Tampon taxes are a form of gender discrimination and necessitate reform in order to expand human rights.110 Thus, to achieve menstrual justice and human rights for all, legislators must adopt policies through the lens of gender inclusivity so that bills like California AB 31 treat transgender and non-binary menstruators as real menstruators.

110 Crawford & Spivack, supra note 17, at 491.

UCLA UNDERGRADUATE LAW JOURNAL

Valentina Macchione*

Human vs. Animal Rights: The Legal Implications of California’s Proposition 12

ABSTRACT. This article will discuss the legality of California’s Proposition 12, as well as the legal implications of its potential reversal by the Supreme Court on human and animal rights. My argument will primarily focus on the pending Supreme Court case, National Pork Producers Council (NPPC) v. Ross, in which the constitutionality of this statute is currently being decided. To contextualize my analysis, I will provide a background on current pork production practices in the United States (U.S.), in addition to the legislative history and passage of Proposition 12 in the state of California. Through then use of the dormant Commerce Clause of the U.S. Constitution as a legal framework to assess the reverberations of a NPPC decision, I will showcase the unintended impact of a narrowed or expanded interpretation of the extraterritoriality doctrine on human and animal rights. The counter position of farm animal welfare and the preservation of human rights in this case is a dilemma in which one party stands to benefit at the expense of the other. Because the fabric of the American legal system is woven in such a way that laws interpreted in one context may unintentionally impact seemingly unrelated decisions in another, it is imperative that the potential implications of a Supreme Court ruling on this matter be given thoughtful consideration.

* Valentina Macchione graduated Summa Cum Laude from UCLA with a Bachelor of Arts degree in Political Science in June 2022. Valentina is eager to continue to pursue her interests in public service and health and welfare law, as she prepares to attend law school in the near future. She would like to thank the UCLA Undergraduate Law Journal Editorial Staff for their insight and support throughout the editorial process.

Introduction

For centuries, the concept of federalism has served as the central framework for the division of governmental power that is outlined in the U.S. Constitution and shared among federal and state levels of government.1 Due to the overlapping laws and regulations which make up this unified system, legal decisions made within the American court system are not made in isolation. As a result, laws interpreted in one context may unintentionally impact seemingly unrelated decisions in another. It is consequently of the utmost importance that we take into consideration how the precedent set by a court ruling in one circumstance will reverberate across the legal landscape as a whole. This article will examine the legality of California’s Proposition 12, the Farm Animal Confinement Initiative,2 and the implications of its potential reversal by the Supreme Court on human and animal rights in the United States. The discussion of Proposition 12 in this article will primarily focus on the pending Supreme Court case, National Pork Producers Council v. Ross (NPCC), 3 in which the constitutionality of this California statute is currently being decided. To contextualize my analysis of this case, Section I will focus on current pork production practices in the U.S., in addition to the legislative history and passage of Proposition 12 in California. Section II will provide an overview of the legal case proceedings in NPPC, as well as existing precedent concerning the extraterritoriality doctrine and the dormant Commerce Clause of the U.S. Constitution. In Section III, I will use the extraterritoriality doctrine as a framework to demonstrate how the Supreme Court’s narrowed or expanded interpretation of the doctrine in NPPC could impact animal rights and the regulation of abortion rights in the aftermath of Roe v. Wade. 4 The protection of farm animal welfare and the preservation of human rights in this case is a dilemma in which one party will benefit at the expense of the other. On the one

1 Cong. Rsch. Serv., Intro.7.3 Federalism and the Constitution, Constitution Annotated, https://constitution.congress.gov/browse/essay/intro.7-3/ALDE_00000032/.

2 California Proposition 12, The Prevention of Cruelty to Farm Animals Act, Approved on November 6, 2018.

3 National Pork Producers Council v. Ross, No. 21-468 U.S. (oral arguments heard on October 11, 2022).

4 Roe v. Wade, 410 U.S. 113 (1973).

hand, the Supreme Court decision to uphold Proposition 12 will preserve existing protections for farm animals and set a new nationwide precedent for the narrowed application of the extraterritoriality doctrine moving forward. In doing so, however, the Court could provide anti-abortion states with a green light to exploit the underdeveloped line between constitutional and unconstitutional extraterritorial jurisdiction. Whereas, a decision by the Court to expand the extraterritoriality doctrine and overturn Proposition 12, could potentially impede state efforts to extend their extraterritorial jurisdiction at the expense of animal rights. Rather than choose a side in this debate, I will present a series of alternative approaches to circumvent the potentially detrimental reverberations of this case for animal and human rights. Through my discussion of the moral and legal complexities of NPPC, I hope to engage critical discourse by drawing awareness to the interconnected, yet fractured nature of the American legal landscape and the critical vulnerability of reproductive rights in the U.S. at this time.

A. The Dormant Commerce Clause

Under Article I of the U.S. Constitution, Congress is granted the authority to regulate interstate commerce.5 Although this regulatory power appears straightforward, constitutional scholars and federal courts have long interpreted this section of the Constitution as serving a dual purpose; possessing both a lawgranting function and a restrictive component known as the ‘negative’ or ‘dormant’ Commerce Clause.6 The contemporary judicial interpretation of this clause is grounded in the mid-nineteenth-century Supreme Court decisions of Gibbons v. Ogden7 and Wilson v. Black-Bird Creek Marsh Co.,8 which granted individual states the authority to play a concurrent role in exercising the Commerce Clause. In the Court’s view, the dormant Commerce Clause

5 U.S. CONST. art. I § 8, cl. 3.

6 Kelsey Rinehart Eberly, Potential Reverberations of Pork Producers’ Commerce Clause Challenge Before the Supreme Court, Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School (August 2022), https://animal.law.harvard.edu/wp-content/uploads/ALPP-Prop-12Report.pdf.

7 Gibbons v. Ogden, 22 U.S. 1 (1824).

8 Wilson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829).

imposes a limitation on the lawmaking authority of states and local jurisdictions to implement protectionist trade barriers and regulate economic activity beyond their respective borders.9 However, this conceptualization of the dormant component of the Commerce Clause is not universally accepted. As a result, legal uncertainty surrounding judicial interpretation of the dormant Commerce Clause has persisted throughout the last century.

Prominent detractors of the dormant Commerce Clause doctrine include past and present Supreme Court Justices Antonin Scalia, Clarence Thomas, and Neil Gorsuch.10 Despite the concurring opinions of these justices, however, a substantial majority of courts have determined that the dormant Commerce Clause justly obstructs state laws and local ordinances from discriminating against or unduly burdening interstate commerce.11 The dormant Commerce Clause is generally used to evaluate cases in which a nondiscriminatory statute that appears to regulate even-handedly to promote local public interest, may incidentally affect interstate commerce. In such circumstances, the statute in question will generally be upheld unless the demonstrated burden imposed on interstate commerce is determined to either greatly exceed or be clearly excessive in relation to the putative local benefit.12

One of the central questions at issue in NPPC is whether or not the standards set by Proposition 12, regarding the in-state commercial sale of pork, violate this general application of the dormant Commerce Clause. According to the NPPC, Proposition 12 places an undue burden on interstate commerce according to the dormant Commerce Clause for two reasons; [1] it fails the Pike balancing test because it lacks a ‘local benefit’ and [2] it causes an impermissible ‘extraterritorial effect’ due to its enforcement of out-of-state pork producers to comply with California standards. The former claim is supported by the NPPC’s assertion that in practical effect, Proposition 12 regulates wholly out-of-state commerce because California imports 99.87% of its pork and the pork production and distribution process is segmented along supply chains that are located

9 U.S. CONST. art. I, § 8, cl. 3.

10 Eberly, supra note 6.

11 Id. at 19.

12 Pike v. Bruce Church, Inc. 397 U.S. 137, 142 (1970).

outside of California’s jurisdiction.

13 Upon further review of these unique circumstances, the NPPC asserts that Proposition 12 unconstitutionally places an indisputable burden on the conduct of market players and commerce occurring wholly outside the regulating state. In their Supreme Court writ of certiorari, this claim was reemphasized by the NPPC who further argued that the Ninth Circuit failed to apply a meaningful Pike balancing test by failing to take these considerations into account.14

B. The Deceptive Simplicity of the Extraterritoriality Doctrine

The latter claim made by the NPPC constitutes an appeal to the extraterritoriality doctrine, a constitutional rule that is popularly regarded as the most dormant and least understood of the Court’s existing dormant Commerce Clause jurisprudence.15 Established by the Court ruling in Healy v. Beer Institute, 16 the extraterritoriality doctrine prohibits states from exercising their authority to regulate conduct that occurs wholly beyond their physical borders. The NPPC has frequently appealed to the extraterritoriality doctrine to substantiate their argument that Proposition 12 is unconstitutional, arguing that because 87% of the pork produced in the U.S. is consumed outside California, Proposition 12 places an unconstitutional burden on out-of-state commerce.

Although the interpretation of the extraterritoriality doctrine may appear straightforward, doctrinal ambiguity and shifting interpretations of existing dormant Commerce Clause jurisprudence have muddied conventional justification for the doctrine’s use. Because the extraterritoriality doctrine itself has been molded over the years to fit individual conceptions of national economics and federalism, the scope of its applicability varies in its interpretation.17 For example, if one group of dissenting judges and scholars were to ground their negative interpretation of the extraterritoriality doctrine in

13 National Pork Producers Council v. Ross, Brief for the United States as Amicus Curiae Supporting Petitioners, No. 21-468 U.S. (2022).

14 Id. at 4.

15 Tyler L. Shearer, Locating Extraterritoriality: Association for Accessible Medicines and the Reach of State Power, Boston University Law Review, p. 1504, 100 B.U. L. Rev. 1501 (2020).

16 Healy v. Beer Institute, Inc., 491 U.S. 324 (1989).

17 Shearer, supra note 15, at 1504.

its lack of a straightforward historical justification, these individuals may subsequently argue that the principle is unsupported by the Constitution and is therefore impractical in application. 18 In contrast, others may point to the constitutional history upon which the extraterritoriality doctrine is grounded to justify a limited application of the principle to cases of regulatory discrimination against out-of-state entities.19 Whereas, a third group may apply a faithful interpretation of current Supreme Court precedent and passing references to national economic policy to formulate their application of the doctrine.20 This perspective is based on the notion that the diverse interpretations of dormant Commerce Clause precedent should be combined to create a seamless whole supported by the same historical and political justifications.21 In spite of these conflicting interpretations, however, the extraterritoriality doctrine has long been used by courts across the nation to strike down a wide variety of state legislative initiatives in their infancy.22 With respect to NPPC, the scope and relevance of the extraterritoriality doctrine is likely to be clarified by the Court’s establishment of a federal precedent encompassing its interpretation and application.

I. U.S. Pork Production and California’s Proposition 12

A. Pork Production in the U.S.

Since the mid-twentieth century, animal production industries nationwide have become progressively larger, mechanized, and industrialized.23 Located primarily within midwestern state boundaries and North Carolina, the U.S. hog and pig farming industry is one such example. In 2021, the largest pork producer in the U.S. was Smithfield Foods, a multinational corporation made up of 530 company owned and 2,100 contract farms with an annual production of nearly

18 Pharmaceutical Research & Manufacturers of America v. Walsh, 538 U.S. 644 (2003).

19 American Beverage Ass’n v. Snyder, 735 F.3d 362, 378 (6th Cir. 2013).

20 Shearer, supra note 15, at 1505.

21 Ibid

22 Ibid.

23 Eberly, supra note 6, at 22.

HUMAN VS ANIMAL RIGHTS: CALIFORNIA’S PROPOSITION 12

18 million pigs, concentrated within North Carolina, Iowa, and Missouri.24 To attain economies of scale, pork production in the U.S. is segmented along a vertical production supply chain in which pigs are raised and slaughtered in separate facilities and stages of production.25 After slaughter, pigs are processed into various cuts of meat, then shipped to wholesalers, retailers, and restaurants across the country.26 For many years, a lack of transparency has shrouded the conditions of large pig farms and egg-laying hen houses within the U.S. However, in the 1990s and early 2000s, photographs and video footage depicting the inhumane conditions within these facilities were released by whistleblowers. The discovery of these disturbing conditions subsequently sparked debate over the welfare of farm animals, prompting calls to end such intensive confinement.27

California residents account for nearly 13% of pork consumed nationwide. However, the 1,500 sows that are commercially housed and bred instate represent a fraction of the estimated 673,000 sows necessary to satisfy consumer demand.28 Considering California’s notable consumption yet limited production of pork products, the central question at issue in NPPC concerns whether pervasive changes to a nationwide industry, set forth by the regulations of animal confinement in Proposition 12, constitute a violation of the dormant Commerce Clause.

B. The Legal History of Proposition 12

In light of mounting public concern for farm animal welfare, voters in states nationwide enacted ballot measures to gradually discontinue the use of gestation crates and battery cages for the cruel confinement of pigs and hens, respectively.29 In response to nationwide concern, several prominent grocery

24 Ibid.

25 James M. MacDonald & William D. McBride, The Transformation of U.S. Livestock Agriculture: Scale, Efficiency, and Risks, 43, SSRN Electronic Journal (2009).

26 Eberly, supra note 6, at 23.

27 Id. See also Sara Shields, Paul Shapiro, and Andrew Rowan, A Decade of Progress Toward Ending the Intensive Confinement of Farm Animals in the United States, 7(5), 40, Animals (2017).

28 Yue Wu and Wentao Yang, National Pork Producers Council v. Ross, Legal Information Institute, Cornell Law School (2022), https://www.law.cornell.edu/supct/cert/21-468.

29 Farm Animal Confinement Bans by State, ASPCA qtd. in Eberly, supra note 6.

stores and restaurants announced their intention to encourage food suppliers to provide “farm animals more space to move around (for example, by only purchasing eggs from farmers who use “cage-free” housing for hens).”30 Not long afterward, Proposition 2 was passed by California voters, subsequently codifying the prohibition of cruelty on concentrated animal feeding operations (CAFOs, a.k.a. ‘factory farms’) into state law.31 As of January 2015, this statewide measure has prohibited the confinement of pregnant pigs, calves raised for veal, and egg-laying hens in cages or crates that would prevent them from turning around, standing up, lying down, and extending their limbs without touching their enclosure or cage-mates.

After the enactment of Proposition 2, the ‘California Egg Law’ was passed by the California legislature and signed by Governor Schwarzenegger in 2010. Under this statute, eggs sold in California are required to meet Proposition 2 standards regardless of where they originate.32 Following the passage of Proposition 2 and the California Egg Law, industry actors launched a cascade of unsuccessful lawsuits challenging the constitutionality of the sale restrictions imposed by these regulations on out-of-state producers. In Cramer v. Brown,33 California egg farmers alleged that Proposition 2 was not only unconstitutionally vague and therefore, in violation of the Due Process Clause of the Fourteenth Amendment, but that it also violated the dormant Commerce Clause by imposing excessive burdens on interstate commerce. The latter claim was ultimately dismissed by the Court, which found the “prevention of animal cruelty a legitimate state interest” and the purported burden on interstate commerce to be “purely hypothetical and entirely speculative.”34 Undeterred by this loss, the Association of California Egg Farmers continued to launch lawsuits challenging the constitutionality of Proposition 2 on various grounds. Despite their efforts, in each attempt, the challengers failed. In 2014,

30 Office of the Attorney General, Establishes New Standards for Confinement of Certain Farm Animals; Bans Sales of Certain Non-Complying Products Initiative Statute, Proposition 12 (2018).

31 California Proposition 2, Treatment of Farm Animals Statute, Approved on November 4, 2008.

32 Eberly, supra note 6, at 24.

33 Cramer v. Brown, No. 12-cv-3130, 2012 WL 13059699 (C.D. Cal. Sept. 12, 2012).

34 United States v. Stevens, 599 U.S. 40, 469 (2010).

the state of Missouri attempted to sue California officials35 in hopes of “stri[king] down the California Egg Law on the grounds that it violated the dormant Commerce Clause and was preempted by the federal Egg Products Inspection Act.”36 This challenge similarly failed, as the Ninth Circuit ruled Missouri had no standing to bring the suit on behalf of its citizens.37 Unable to accept this loss, Missouri and 12 other states attempted to file an original action within the Supreme Court against California on dormant Commerce Clause grounds.38 This motion was denied by the Supreme Court in 2017.39 In the following years, several other states have passed laws mirroring California's ban on the intensive confinement of farm animals, as well as the in-state commercial sale of products derived from animals housed in a cruel manner, regardless of where they were raised.40

C. California’s Proposition 12

In November 2018, California voters passed Proposition 12, The Farm Animal Confinement Initiative, by a landmark 62.6% majority vote. As an amendment to the California Health and Safety Code,41 Proposition 12 served as an update to Proposition 2, setting new minimum requirements for the confinement of breeding pigs, egg-laying hens, and calves raised for veal on farms statewide with a multi-year phase-in period for California farmers to meet the new requirements. The stated purpose of the measure is:

to prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California

35 The Attorneys General of Nebraska, Oklahoma, Alabama, and Kentucky and the Governor of Iowa later joined as additional plaintiffs in Missouri v. Harris, 58 F. Supp. 3d 1059 (E.D. Cal. 2014).

36 Eberly, supra note 6, at 25.

37 Missouri ex rel. Koster v. Harris, 847 F.3d 646, 652 (9th Cir. 2017); Ninth Circuit Affirmed.

38 Eberly, supra note 6, at 25.

39 Missouri v. California, No, 148, Original (2017), Motion for Leave to File Bill of Complaint, and Brief in Support.

40 Massachusetts Minimum Size Requirements for Farm Animal Containment, Question 3 (2016) Ballotpedia.

41 California Code, Health & Safety Code, HSC § 25990(a) (2019).

consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.42

Proposition 12 reaffirmed the existing requirement that all animals “must be able to turn around freely lie down, stand up, and fully extend their limbs” outlined in Proposition 2. As an update to these requirements, Proposition 12 increased the minimum housing standard for breeding pigs from 14 square feet to 24 square feet of floor space statewide. Despite the similarities between Proposition 12 and Proposition 2, the former also prohibits the in-state commercial sale of products derived from animals raised and confined in a manner that fails to comply with the standards of confinement as defined by the law, a violation of which is subject to criminal and civil punishment.

II. The Failure and Determination of U.S. Pork Producers

A. Legal Challenges to Proposition 12

After Proposition 12 was passed in 2018, a new wave of legal challenges followed. In October 2019, the North American Meat Institute (NAMI) filed suit in the Central District Court of California, alleging that Proposition 12 violated the dormant Commerce Clause by:

[1] discriminating against its members who produce pork and veal outside of California, [2] impermissibly regulating its members activities beyond California’s borders, and [3] by substantially and unlawfully burdening its members’ ability to engage in interstate commerce.43

The court ultimately denied NAMI’s motion to halt the enforcement of Proposition 12 on the grounds that because the statute applied equally to animals raised and slaughtered both in and outside California, NAMI’s allegation that there was discriminatory or protectionist intent or effect was unsupported. The

42 California Proposition 12, The Prevention of Cruelty to Farm Animals Act, Approved on November 6, 2018.

43 North American Meat Institute v. Becerra, 420 F. Supp. 3d 1014, 1020 (C.D. Cal. 2019).

court also found that NAMI's appeal to the burden placed on interstate commerce by the anticipated effects of the law was “not sufficient to establish a burden,”44 when balanced by the Pike v. Bruce Church45 balancing test against the animal welfare and public health benefits of the law. Formulated by the Court’s decision in Pike, this balancing test utilizes a two-tiered interpretive model that is used in contemporary jurisprudence alongside the dormant Commerce Clause doctrine for judicial review of state regulations of interstate commerce. 46 This two-tiered standard was delineated by the Court in Pike to adequately assess the constitutionality of state regulatory efforts, which were nondiscriminatory (or neutral) with respect to interstate commerce, yet still placed a burden on interstate commerce.47 The first tier calls for the examination of whether a state regulation unconstitutionally discriminates against interstate commerce. State regulations that are deemed ‘nondiscriminatory’ according to this test, are then subject to the undue burden standard in the second tier. In the Pike opinion, three distinct components of the nondiscrimination standard were identified by the Court. The burden imposed on commerce was the first component, the second was the putative local benefits and the third was “whether [the local interest involved] could be promoted as well with a lesser impact on interstate activities.”48 As evidenced by its application in the NAMI decision, the nondiscrimination standard has been routinely invoked by courts nationwide to assess the constitutionality of state regulations under the dormant Commerce Clause NAMI’s lawsuit against California was eventually followed by the National Pork Producers Council and American Farm Bureau Federation’s joint suit alleging similar dormant Commerce Clause challenges in the Southern District of California.49 In this case, the NPPC alleged that Proposition 12 unconstitutionally violated the dormant Commerce Clause due to its

44 Id. at 1034.

45 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

46 David S. Day, Revisiting Pike: The Origins of the Nondiscrimination Tier of the Dormant Commerce Clause Doctrine, 27 Hamline L. Rev. 45 (2004).

47 Id. at 46.

48 Id. at 56.

49 National Pork Producers Council v. Ross, 456 F. Supp. 3d 1201, 1204-05 (S.D. Cal. 2020).

interference with the interstate commerce of the national pork industry. The NPPC subsequently argued that it would be ‘complicated’ and ‘very difficult’ to segment the pig and pork supply chains in order to ensure product compliance with the standards set forth in Proposition 12 for the state of California. In an additional layer of their complaint, the NPPC argued that Proposition 12 was unconstitutionally extraterritorial due to its projection of “California’s required methods of production into other states and countries.”50 In an attempt to demonstrate the unconstitutional burden placed on interstate commerce by the law, the NPPC further alleged that Proposition 12 failed the Pike balancing test because there was no discernable local benefit to animal welfare and public health that could be used to balance the disproportionate harm to out-of-state pork producers. These allegations were eventually dismissed by the Southern District Court for failure to state a constitutional claim.51 Following dormant Commerce Clause precedent established by the Ninth Circuit in Chinatown Neighborhood Association v. Harris, 52 the Southern District Court ruled that the NPPC’s allegations were immaterial, stating that even if a statute possesses significant extraterritorial effects, “it passes Commerce Clause muster when, as here, those effects result from the regulation of in-state conduct.”53 Accordingly, the NPPC’s appeal to a violation of dormant Commerce Clause precedent under Pike was also dismissed by the Southern District Court for failure to “establish a substantial burden on interstate commerce.”54 By the summer of 2021, the effective date for pork sellers to comply with Proposition 12’s animal confinement square footage requirement was just six months away. In light of this looming deadline, some pork producers and sellers pursued contingency plans while others mounted additional lawsuits.

50 National Pork Producers Council v. Ross, Brief for the United States as Amicus Curiae Supporting Petitioners, No. 21-468 U.S. (2022).

51 National Pork Producers Council v. Ross, No. 20-55631 (9th Cir. 2021).

52 Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1145 (9th Cir. 2015).

53 Id. at 3.

54 National Pork Producers Council v. Ross, 456 F. Supp. 3d, 1209-10, citing Exxon, 437 U.S. at 128.

B. National Pork Producers Council v. Ross

Despite their initial losses in lower district courts, the NPPC and American Farm Bureau Federation have continued to challenge the legality of Proposition 12. For example, in NPPC v. Ross, the NPPC filed a complaint against the constitutionality of Proposition 12 under the dormant Commerce Clause in the U.S. District Court for the Southern District of California against Secretary of the California Department of Food and Agriculture, Karen Ross.55 The original claim made by the NPPC in this case was ultimately dismissed by the Southern District Court of California in April 2020 for failure to state a claim. This ruling was eventually reaffirmed by U.S. Ninth Circuit Court of Appeals Judge Sandra S. Ikuta in July 2021. In her concurring opinion, Justice Ikuta supported existing precedent by stating that “even if a state’s requirements have significant upstream effects outside of the state, and even if the burden of the law falls primarily on citizens of other states, the requirements do not impose impermissible extraterritorial effects.”56 Notwithstanding the precedent set by this case and others, the NPPC appealed the Ninth Circuit’s decision, and on March 28, 2022 the Supreme Court granted a writ of certiorari.

After several failed attempts to adequately state a claim in lower courts, the NPPC is now making an effort to strengthen its appeal to dormant Commerce Clause precedent at the Supreme Court level. By shifting the coercive force of language used in their certiorari appeal, the NPPC has chosen to ground their argument against Proposition 12 in inevitably and absolutism, rather than perception and complexity.57 This change deviates from the NPPC’s initial claim that Proposition 12 was unconstitutionally extraterritorial because it would force some sow farmers to change their production methods in order to comply with California’s standards. In contrast, the NPPC’s newly revised argument is supported by an absolute claim that the law in practice will inevitably “require every sow farm to adopt its standards, completely reworking

55 James M. McGoldrick, The Dormant Commerce Clause: The Origin Story and the 'Considerable Uncertainties 1824 to 1945, 52 Creighton L. Rev. 243. Pepperdine University Legal Studies Research Paper No. 2019/5 (2019).

56 National Pork Producers Council v. Ross, No. 20-55631 (9th Cir. 2021).

57 Id. at 19

the industry and resulting in every U.S. pork consumer paying for California’s preferred sow housing.”58 These calculated shifts in logical force represent the NPPC’s attempt to more closely align their case against Proposition 12 with past Supreme Court cases in which the statute at issue was ruled unconstitutional. In hopes of achieving a similar outcome, it remains to be seen whether the NPPC’s revised appeal to the dormant Commerce Clause will be successful.

A Supreme Court decision concerning the interpretation and applicability of the extraterritoriality principle in NPPC will provide a framework for future state regulations impacting animal welfare and the existing interjurisdictional battleground over abortion rights in the U.S. Upon superficial examination of NPPC, the central issues appear to be animal rights, economic consequences, and the controversy encompassing the interjurisdictional state authority to regulate out-of-state conduct. Consequently, the majority of critical discourse that currently surrounds NPPC has primarily centered around animal cruelty and the state authority to impose market regulations beyond their respective borders. However, it is upon further investigation into the wide-ranging implications of a Supreme Court ruling in this case on the legal system as a whole, that seemingly unrelated animal welfare and human rights issues are brought to light.

III. Potential Reverberations of the NPPC Decision

Regardless of how NPPC is decided, a ruling in favor of either party will set a new precedent for the interpretation and application of the extraterritoriality doctrine across the legal system; the reverberations of which could unintentionally impact both human and animal rights. If the Court were to narrow the extraterritoriality doctrine by upholding Proposition 12, farm animals stand to benefit. Whereas, an examination of this potential ruling through the lens of the current abortion debate reveals the devastating depth at which this decision could impact the human right to an abortion. In this scenario, abortion rights could be placed at greater risk of backsliding, as anti-abortion

58 Eberly, supra note 6, at 30.

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states may attempt to exploit the Court’s newly expanded interpretation of the extraterritoriality doctrine in order to extend local preferences for abortion restrictions beyond their borders. Although a broadened interpretation of the doctrine by the Court in this case would hamper state efforts to expand their jurisdiction extraterritorially, farm animals would no longer benefit from the protections against cruel confinement enforced by Proposition 12.

A. Animal Rights Implications

Although California possesses a long history of laws prohibiting the mistreatment of farmed animals within the state, many animals continue to suffer from extreme confinement on CAFOs in the largest production states where similar protections are nonexistent.59 For instance, as of 2022, only 3% of pigs in the U.S. benefit from bans on gestation crates, the individual metal enclosures used to house pregnant sows.60 Approximately 6.5 feet long and 2.5 feet wide, gestation crates are considered a standard industry practice, providing sows with a secure enclosure in which they are able to stand up and lie down, but prevented from turning around. As a result, sows housed in these conditions are unable to move freely throughout their pregnancy and are consequently subject to an increased incidence of confinement injuries including pressure sores, ulcers, and abrasions.61 These inhumane conditions have contributed to a cycle of abuse which Proposition 12 aims to prohibit within California.

If the Court validates the NPPC’s claim that Proposition 12 is unconstitutionally extraterritorial and violates the dormant Commerce Clause, California’s regulation of the in-state housing conditions and commercial sale of products derived from animals that were confined in a cruel manner will be

59 Animal Welfare Institute, The Current State of Animal Farming in the US, AWI Quarterly (Summer 2022), https://awionline.org/awi-quarterly/summer-2022/current-state-animalfarming-us.

60Hog Welfare Laws Cover 9 States and 3 Percent of the National Herd in 2022, United States Department of Agriculture (USDA) Economic Research Service (2022), https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=103505.

61 Welfare Implication of Gestation Sow Housing, American Veterinary Medical Association (AVMA) (November 11, 2015), https://www.avma.org/sites/default/files/resources/WelfareImplicationsOfGestationSowHous ing.pdf.

invalidated. This decision would constitute the broadest possible ruling the Court could deliver, dramatically expanding the extraterritoriality doctrine and placing greater restrictions on the interjurisdictional authority granted to individual states. In this scenario, California’s authority to influence the welfare of animals imported into its state would be significantly reduced. The lack of state regulatory pushback in this scenario could also provide nationwide pork producers with the opportunity to take the path of least economic resistance and continue the use of standard industry practices which threaten animal welfare. As a result, the inhumane treatment of farmed animals would likely persist.

B. Extraterritorial Abortion Bans: A New Frontier of Human Rights Restrictions

The Court could alternatively side with both the Ninth Circuit and Southern District Court of California by ruling that the NPPC fails to state a claim. The wide-ranging reverberations of a narrowed extraterritoriality precedent set by the Court in the event of this decision would drastically affect state sovereignty, as it pertains to the current interjurisdictional battleground over abortion regulation and restriction in the U.S. Following the Court’s decision to strike down Roe v. Wade,62 rights and access to abortion in the U.S. have been severely curtailed by the efforts of states nationwide to ban the procedure at various stages. In an attempt to counter this movement, many abortion-protective states have proclaimed themselves as sanctuary sites for those seeking abortion and reproductive care.63 As tensions continue to rise across this fractured legal landscape, restrictive states may attempt to further restrict abortion rights and accessibility by imposing civil or criminal liability on citizens who travel beyond state borders to receive an abortion, the provider that delivers the procedure,

62 Roe v. Wade, 410 U.S.113 (1973).

63 California Proclamation on Reproductive Freedom, Executive Department State of California (2019), https://www.gov.ca.gov/wp-content/uploads/2019/05/Proclamation-on-ReproductiveFreedom.pdf.

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and anyone who provides their assistance.64 Since the aftermath of the Court’s decision to overturn the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, 65 members of the anti-abortion movement have made their intent to end abortion travel as part of a nationwide plan to abolish abortion post-Roe explicitly clear.66 That being said, a narrowed interpretation of the extraterritoriality doctrine by the Court in NPPC could provide antiabortion states with a framework to enact statutes that enforce similar antiabortion policy preferences within other state jurisdictions.

In recent years, there have been several attempts by states to extraterritorially criminalize abortion. For example, in March 2021, S.B.603 was introduced by a Missouri legislator in an attempt to apply all Missouri abortion restrictions to any conduct that occurs “partially within and partially outside” the state.67 This law would also apply to out-of-state conduct any time one of the following conditions occur:

[1] The pregnant person resides in Missouri; [2] there is a substantial connection between the pregnant person and Missouri; [3] the ‘unborn child’ is a resident of Missouri at the time of conception; [4] the pregnant person intends to give birth in Missouri if the pregnancy is carried to term; [5] the individual had sex in Missouri that “may have” conceived this pregnancy; or the patient sought prenatal care in Missouri during the pregnancy.68

In March 2022, a different legislator in Missouri proposed an amendment to an existing bill criminalizing abortion. This amendment “would have created civil liability for anyone who performs an abortion on a resident of Missouri, no matter where the abortion is performed, or helps someone from Missouri leave the state to get an abortion.”69 Although the final bill did not include the proposed amendment, the legislator who drafted the bill pledged to continue the

64 David S. Cohen, Greer Donley & Rachel Rebouché, The New Abortion Battleground, 123 Columbia L. Rev. 14 (2022).

65 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

66 Id. at 17.

67 S.B. 603, 101st General Assembly, Reg. Sess., 1 (Mo. 2021).

68 Id. at 2, 3.

69 Cohen, supra note 64, at 18.

fight to advance similar abortion restrictions, an endeavor that has been similarly undertaken by legislators in several other states nationwide.70

C. Applicability of the Extraterritoriality Doctrine to State Abortion Regulations

The scattered use of the extraterritoriality doctrine by federal and district courts has primarily served as a tool to evaluate the constitutionality of price control and affirmation statutes. In recent years, federal courts have broadened their application in decisions concerning the regulation of out-of-state transactions.71 In light of this expansion, if the Court were to dismiss the constitutional significance of the NPPC’s critique of Proposition 12’s benefits and subsequently narrow the reasoning of the extraterritorial principle to decide in favor of California, anti-abortion states would be provided with a new legislative framework to project local philosophical preferences beyond their respective borders.

Current precedent concerning the extraterritorial application of abortion regulation is severely underdeveloped. Accordingly, “only two cases decided after Roe – one by the U.S. Supreme Court and the other by the Missouri Supreme Court – have addressed whether states can penalize out-of-state abortion conduct.”72 At issue in the first case, Bigelow v. Virginia, 73 was the constitutionality of a Virginia statute prohibiting publications from encouraging people to receive an abortion. In their decision, the Court articulated a general statement concerning the extraterritorial application of state law, ruling “that a State does not acquire power of supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”74 In other words, public interest is not a sufficient justification for a statute that prohibits state residents from using the

70 Harmeet Kaur, Small Towns in Texas are Declaring Themselves ‘Sanctuary Cities for the Unborn,’ Cable News Network (2020). https://www.cnn.com/2020/01/25/us/sanctuary-citiesfor-unborn-anti-abortion-texas-trnd/index.html.

71 Sam Francis Foundation v. Christies, Inc. 784 F.3d 1320, 1324 (9th Cir. 2015).

72 Cohen, supra note 64.

73 Bigelow v. Virginia, 421 U.S. 809 (1975).

74 Id.

legal services of an out-of-state agency. Comparatively, in Planned Parenthood of Kansas v. Nixon, the Missouri Supreme Court reviewed a Missouri state law which provided a “civil cause of action against any person who causes, aids, or abets a minor obtaining an abortion without first getting parental consent or a judicial bypass.”75 In this case, the Missouri Supreme Court used the extraterritorial principle in their decision that Missouri law was only valid when applied to conduct occurring at least in part within the state. Overall, the precedents set by each of these cases may appear to demonstrate strong evidence against the legality of extraterritorial abortion law.

However, there are several caveats to consider before jumping to this conclusion. For instance, Bigelow is dated and relies in part on precedent that was overturned in 2022 by the Dodd decision. In addition, Nixon can only be applied in Missouri and provides no clear application guidance for determining what constitutes conduct occurring wholly outside the state. Because legal uncertainty surrounding the application of the extraterritorial principle as it applies to abortion has persisted, the Supreme Court’s interpretation of the extraterritoriality doctrine in their NPPC decision will be paramount.

The lack of legal clarity which currently clouds the scope of the extraterritoriality doctrine’s applicability to abortion regulation has been further complicated by the new remote abortion frontier in the United States. At the time of Bigelow, abortion pills were nonexistent and not widely used at the time of Nixon 76 However, the use of telehealth services during the COVID-19 pandemic has contributed to a seismic shift in the delivery of healthcare services in the 21st century.77 For instance, the medication abortion pills that once required an in-person appointment to be prescribed, can now be legally obtained in one state jurisdiction, “one or both of the drugs can be taken elsewhere, and the pregnancy can end somewhere else entirely.”78 The legal uncertainty

75 Planned Parenthood of Kansas v. Nixon, 220 S. W.3d 732 (Mo. 2007) qtd. in Cohen, supra note 64, at 21.

76 Cohen, supra note 64, at 22.

77 Erica Chong, Tara Shochet, Elizabeth Raymond et al., Expansion of a direct-to-patient telemedicine abortion service in the United States and experience during the COVID-19 pandemic. National Library of Medicine 2021 Jul; 104(1): 43-48. doi: 10.1016/j.contraception.2021.03.019. Epub 2021 Mar 27. PMID: 33781762; PMCID: PMC9748604.

78 Id. at 22.

regarding where the procedure actually takes place in this scenario is a question abortion providers and legal scholars are currently struggling to discern. Whether a state possesses the extraterritorial jurisdiction to impose abortion restrictions in this circumstance is also up for debate. For example, if both provider and patient can be in two different jurisdictions over the course of abortion care, who can be held liable and where? Within this context, many scholars have warned that anti-abortion states will exploit any legal ambiguity to expand the extraterritorial application of their laws. Accordingly, “if existing state law can be applied to legal abortions obtained in other states or to travel to obtain those legal out-of-state abortions,” a specific law governing extraterritorial abortions would not be necessary for a determined prosecutor to pursue criminal liability.79

The Massachusetts Supreme Judicial Court has articulated a general rule against the extraterritorial application of state criminal laws in which states are barred from using regular criminal laws to prosecute people for crimes committed outside of their jurisdiction. However, gaps in this general rule may provide a new avenue for the prosecution of crimes committed beyond state borders. For example, “the ‘effects doctrine’ allows states to prosecute someone for actions that take place outside the state that have detrimental effects in the state.”80 This conditional state authority was outlined in the California Supreme Court decision in People v. Betts, in which the court determined that “a state may exercise jurisdiction over criminal acts that take place outside of the state if the results of the crime are intended to, and do, cause harm within the state.”81 The application of this doctrine to the extraterritorial application of abortion restrictions is evidenced by the passage of Georgia 2019 House Bill 481 (H.B. 481 cited as the “Living Infants Fairness and Equality (LIFE) Act”), a state law banning abortion at six-weeks of pregnancy.82 After being signed into law, the Georgia LIFE Act was promptly deemed unconstitutional and granted a preliminary injunction by the U.S. District Court

79 Id. at 23.

80 Cohen, supra note 64, at 24.

81 People v. Betts, 103 P.3d 883, 887 (Cal. 2005).

82 H.B. 481, Georgia Living Infants Fairness and Equality (LIFE) Act, Approved on April 4, 2019.

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in Atlanta, a decision which subsequently blocked its implementation.83 However, in the weeks following the precedent shattering Dobbs decision, the district court’s injunction was lifted by the U.S. Court of Appeals for the Eleventh Circuit.84 As a result, the LIFE Act’s six-week ban on abortion went into immediate effect on July 20, 2022.85 Despite the plaintiff’s efforts to motion for an interlocutory injunction and temporary restraining order on the enforcement of H.B. 481, their complaint was denied by the Superior Court of Fulton County on August 15, 2022. Although the six-week ban was eventually struck down by a trial court on November 15, 2022, an emergency stay of the lower court’s initial injunction was granted by the Georgia State Supreme Court on November 23, 2022. As the state’s appeal currently awaits adjudication in this case, the six-week ban has since been allowed to go back into effect.86

In addition to the six-week ban it places on abortion, H.B. 481 also categorizes a fetus or “unborn child” at any stage of development as members of a “class of living, distinct human beings” deserving of “full legal recognition as members of the human community.”87 Using the effects doctrine as a framework to criminalize patients seeking abortion care in this circumstance could pose detrimental consequences for human rights. Within this context, “the actions of a pregnant Georgian who crosses state lines to obtain a legal abortion outside Georgia would have the effect of killing a ‘living distinct’ Georgian deserving of ‘full legal protection.”88 H.B. 481’s broadened definition of personhood, compounded with the expanded legal jurisdiction afforded to states under the effects doctrine, may provide a state prosecutor with the means to classify abortion as homicide within the state. Thus, a narrowed interpretation of the extraterritoriality doctrine could decrease barriers to the

83 SisterSong Women of Color Reproductive Justice Collective v. Kemp, 472 F. Supp. 3d 1297 (N.D. Ga. 2020).

84 American Civil Liberties Union (ACLU), SisterSong v. State of Georgia, ACLU (July 26, 2022), https://www.aclu.org/cases/sistersong-v-state-georgia?document=sistersong-v-stategeorgia-georgia-supreme-court-stay-order.

85 SisterSong Women of Color Reproductive Justice Collective v. Kemp, 472 F. Supp. 3d 1297 (N.D. Ga. 2020).

86 American Civil Liberties Union (ACLU), supra note 84.

87 H.B. 481, Georgia Living Infants Fairness and Equality (LIFE) Act, Approved on April 4, 2019.

88 Cohen, supra note 54, at 24.

expansion of state prosecutorial jurisdiction. The use of which could provide states with a framework to support their broadened jurisdiction to prosecute residents who end their pregnancy, regardless of where the procedure was received.

For those who are skeptical of this line of reasoning, the state of Kentucky recently proposed a bill that would make abortion a crime of homicide. Introduced on February 14, 2023, Kentucky House Bill 300 (cited as the “Prenatal Equal Protection Act”) intends to broaden the state definition of personhood to include “unborn children.”89 Under this law, abortion recipients and their doctors would be subject to criminal prosecution for fetal homicide within the state.90 Whether the effects doctrine is used to extend Kentucky’s authority to enforce this law beyond its borders has yet to be seen. However, in a future where the Supreme Court decides to narrow the application of the extraterritoriality doctrine, existing obstacles that currently limit the expansion of state legal authority may be curtailed; subsequently opening the door to new interjurisdictional challenges on the frontier of the abortion debate.

The imminent threat to human rights in this scenario is insurmountable. As abortion restrictive states attempt to introduce and enforce similar laws expanding their extraterritorial jurisdiction, state and federal judges will be put in a precarious position. These individuals will be responsible for sorting through the complexity of jurisdictional questions pertaining to which application of existing law are permissively “within the bounds of state jurisdiction principle and which exceed those limits.”91 Due to the lack of existing case law and the underdeveloped nature of the extraterritoriality doctrine, the issue of whether or not states will possess the authority to apply abortion restrictions beyond their borders is currently up for debate.

Some believe that the “extraterritorial application of abortion law would violate various provisions of the Constitution…[raising] complicated and unanswered issues of constitutional law that would throw the Court into bitter

89 Kentucky House Bill 300, Prenatal Equal Protection Act, Introduced on February 14, 2023.

90 Ibid.

91 Cohen, supra note 64, at 26.

disputes about foundational issues of federalism.”

92 These scholars have relied on the dormant Commerce Clause to cast doubt on the extent of a state’s extraterritorial reach. However, the Court could set a new precedent that reimagines the scope and application of the extraterritoriality principle in their NPPC decision, a ruling which could either clarify or further muddle the interjurisdictional complexities involved.

D. Medication Abortion: A Brief Update

On January 3, 2023 the Federal Food and Drug Administration (F.D.A.) finalized a modification to the Mifepristone Risk Evaluation and Mitigation Strategy (REMS) that would ease restrictions on the over-the-counter dispensary of Mifepristone in certified retail pharmacies. This re-evaluation of the Mifepristone REMS represents a remarkable shift from previous requirements which limited the dispensary of Mifepristone to patients in “certain healthcare settings, specifically clinics, medical offices, and hospitals, by or under the supervision of a certified prescriber.”93 Because Misoprostol can be “easily obtained at pharmacies through a typical prescription process,”94 patients seeking an abortion can now obtain the two medications required to complete the procedure at home. Although Mifepristone must still be prescribed by a health care provider who is certified according to the Mifepristone REMS program, allowing pharmacies to dispense medication abortion will expand access to the procedure nationwide. In response to these relaxed requirements, anti-abortion states may attempt to enact state bans on the over-the-counter dispensary of Mifepristone in retail pharmacies; an act that would undermine Congressional authority to create a uniform, national judgment on drug safety and efficacy. According to existing precedent, courts at

92 Id. at 27.

93 Food and Drug Administration (FDA), Risk Evaluation and Mitigation Strategy (REMS) Singled Shared System for Mifepristone, Danco Laboratories, 1 (2019), https://www.fda.gov/media/164651/download.

94 Pam Belluck, Abortion Pills Can Now Be Offered at Retail Pharmacies, F.D.A. Says, The New York Times, (2023), https://www.nytimes.com/2023/01/03/health/abortion-pill-cvswalgreens-pharmacies.html.

the federal level have determined laws “offend the dormant Commerce Clause when they affect inconsistent regulation of activities that are ‘inherently national or require a uniform system of regulation.’”95 As evidenced by the Court’s reversal of Roe, however, it is clear that current members are unafraid to read between statutory lines when determining whether existing precedent should be revised to mirror philosophical beliefs.

If the Court decides to narrow the extraterritoriality doctrine by choosing to side with California in NPPC, a number of questions surrounding the extraterritorial application of abortion restrictions could be given ground to stand. How the Court addresses the specificity of the NPPC’s Pike claim under the dormant Commerce Clause could usher in a sea of change that may broaden the legal uncertainty surrounding the ‘localness’ of abortion regulations. In doing so, anti-abortion states would effectively be provided with a green light to begin pushing the underdeveloped line between what is considered constitutional and unconstitutional extraterritorial jurisdiction.

IV. Alternative Actions to Circumvent Harmful Consequences

In light of the potential reverberations of a Supreme Court ruling in favor of either party in NPPC, it is paramount to consider alternative approaches to protect farm animal rights and mitigate any unprecedented consequences for human rights through the expansion or narrowing of the extraterritoriality doctrine. For instance, before siding with either party in this case, the Court could dismiss NPPC altogether. Alternatively, the Court could make a minimal ruling that would send the case back to the lower courts to be explored in more detail. Although this decision would ultimately delay the resolution of NPPC, the Court could avoid having to make a decision on the applicability of the extraterritoriality doctrine which would circumvent many potential consequences to animal and human rights.

Before the Supreme Court, Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School 21 (August 2022), https://animal.law.harvard.edu/wp-content/uploads/ALPP-Prop-12Report.pdf.

95 Kelsey Rinehart Eberly, Potential Reverberations of Pork Producers’ Commerce Clause Challenge

HUMAN VS ANIMAL RIGHTS: CALIFORNIA’S PROPOSITION 12

Although the uncertainty that surrounds the application of the extraterritoriality doctrine may currently be conducive to the protection of animal welfare, its potential exploitation by anti-abortion states to place further restrictions on abortion care received beyond state borders could devastate human reproductive rights in the U.S. In consideration of the drastic losses to human rights protections at stake, the ideal outcome of NPPC would be for the Court to set a clear precedent for the interpretation and broadened application of the extraterritoriality doctrine to limit state authority beyond their respective borders. To circumvent any potential losses to animal rights by this decision, the protections outlined in Proposition 12 should be codified into legislation at the federal level. For instance, the U.S. Department of Agriculture (USDA) could codify Proposition 12 confinement standards into Congressional legislation. Because these standards would be issued by a federal government agency, any questions regarding the extraterritoriality principle as it pertains to state sovereignty would be avoided, as all states would be required to adhere to the new federal requirements.

In light of the Amicus Curiae Brief filed by the U.S. Solicitor General, an Executive Order by President Biden to enforce the adoption of Proposition 12 standards at the federal level currently seems unlikely. According to the U.S. Solicitor General, “California has no legitimate interest in protecting the welfare of animals…voters in pork-producing States must determine what constitutes “cruel” treatment of animals housed in those States.”96 Alternatively, consumers nationwide could place further economic pressure on the pork production industry by choosing to boycott the in-state commercial sale of pork raised in a ‘cruel manner’ according to Proposition 12 requirements. In doing so, pork producers would be given an additional incentive to recoup and avoid any further economic losses by choosing to shift industry practices to accommodate public demand.

96 National Pork Producers Council v. Ross, Brief for the United States as Amicus Curiae Supporting Petitioners, No. 21-468 U.S. 19 (2022).

Conclusion

In light of the underdeveloped nature of the extraterritoriality doctrine, NPPC provides the Court with a new opportunity to shape its application and relevance within the current legal landscape in the U.S. Due to the interconnected nature of the American legal system, it is paramount that the potential reverberations of a Supreme Court ruling in favor of either the plaintiff or defendant in this case are taken into consideration before any definitive changes are made to existing precedent. That being said, it is through our consideration of the interjurisdictional conflicts that currently loom on the horizon of the American legal landscape, that the risks to the future of animal welfare and the human right to an abortion are revealed. Despite the divisiveness of the polarizing forces between human and animal rights, however, there is ample opportunity to reimagine the laws and policies that protect the rights of both humans and animals.