Avalanche pressures Shah reform agenda in Nepal

Mount Kailash, 2016
Jean-Marie Hullot via Wikimedia Commons CC BY-SA 4.0

The devastating avalanche in Nepal is pushing the country's infrastructure to the limit and confronting the reform administration of Balen Shah with an overwhelming challenge.

I was in Nepal for the national election in March that catapulted rapper-politician Shah to the prime minister's office. Last week, an avalanche of ice, rock, and water tore through the Bhote Koshi and Trishuli river systems, pouring out of the Lhende River in Tibet and sweeping away downstream Nepali villages. The death toll is expected to top 1,000 easily and soon, as hundreds missing are likely buried beneath mud and debris.

(Two CCTV captures from the China-side border crossing at Gyirong Port have been widely shared and are public domain. They're disturbing, so I'm placing them at the bottom of this post and not higher up, for any reader who wants to view them. They do demonstrate the shocking speed and power of the avalanche. The videos are available from Wikimedia Commons (1, 2).) 

Pilgrims circumnavigating Mount Kailash, 2016
Jean-Marie Hullot via Wikimedia Commons CC BY-SA 4.0

Pilgrims, including tourists, visiting Mount Kailash are among the missing. Mount Kailash is believed to be the home of Lord Shiva and his wife Parvati. The mountain is a holy site in Hinduism, Buddhism, Jainism, and Bon, an indigenous Tibetan spiritual tradition.

As I've watched the coverage, I'm reminded that infrastructure was a key issue in the March election. Nepal has asked for foreign aid with rescue and recovery, including genetic testing to identify victims, and resources for reconstruction. Reuters reported the need is on the scale of billions of dollars.

And time is of the essence. Nepali rescuers now are drilling through the baking, hardening surface of the mudflows to try to reach survivors who might be trapped underneath. The rapid advance of ice and earth likely left pockets of air in what used to be vehicles, buildings, and tunnels.

Getting to the northern border region of Nepal is no small feat. Flights to Kathmandu are limited in the best of times. In March, I took one of few large carrier approaches, Cathay Pacific via Hong Kong; Middle East connections were closed because of the U.S.-Iran War. Most flights into Kathmandu are regional connections. Closer Tibetan airports pose prohibitive barriers with prerequisite visas, travel permits, and border crossings.

The Nepali side of the border area is another six to eight hours' drive from Kathmandu. And that doesn't take account of conditions on two-lane roads amid the crisis, nor time to acclimate to altitude. Arriving at Kathmandu already puts one at about 4,400 feet (1,300 meters). The border town of Rasuwagadhi is at 6,000 feet (1,830 meters).

Hiking near Nagarkot, east of Kathmandu, 2026
RJ Peltz-Steele CC BY-NC-SA 4.0

In the election in March, Shah supporters worried whether they could marshal the youth vote precisely because of limited transportation infrastructure. Nepali law required that votes be cast in a person's home district. But more than a million Nepali people, especially young voters, left their home villages to seek employment in Kathmandu.

I wrote in March about a medical student I met in Kathmandu on election day who, representatively, was not voting, because he could afford neither the time nor expense to reach his home village, 16 hours away by bus. Anger over undeveloped infrastructure in Nepal is thus tied closely to the familiar economic issues of jobs and educational opportunity.

Shortly before the election, in February, Shah's party had released a 100-point "manifesto" (Nepali language) outlining the policy changes a Shah administration would implement. Anti-corruption measures in the judiciary, for example, were to include meritocratic appointments, live broadcast of court proceedings, and statutory enhancement of judicial independence. The manifesto promised to get monied influences out of politics and to beef up the economy through apolitical partnerships with China and India. (Nepal News.)

Home construction near Nagarkot, 2026
RJ Peltz-Steele CC BY-NC-SA 4.0

A bold economic development agenda included measures such as rapid growth of capacity in electricity generation, airports, and rail networks. Some of this work was under way; hydropower operators and construction workers at existing and new facilities are a significant number of the hundreds now missing.

Painfully apropos of the present circumstances, the manifesto called for "major reforms in mountain tourism safety and management," according to Nepal News, including "modern technologies such as drones and digital monitoring systems ... to strengthen safety, search, and rescue operations," especially in the Himalayan region on the Nepal-China border, and "hill stations in mountainous areas located within 1.5 hours of the India-Nepal border."

It's early to be Monday-morning quarterbacking what went wrong in the instant disaster—besides that climate change generally is melting glaciers and destabilizing permafrost at high altitudes. We know that affected Nepali villages received no early warning of the avalanche. Commenters have said that existing early warning systems are sparse, too widely dispersed, and depend on primitive and inadequate measurements, such as water levels. Moreover, sensitive technologies with communication capacity and weather resilience are difficult to install at high altitudes, and national borders complicate installation and communication.

An informative assessment of the early warning angle was posted Saturday by "The Honest Broker," political scientist and American Enterprise Institute senior fellow Roger A. Pielke Jr. He quoted a regional news source explaining that existing sensors, such as they were, ordinarily reporting every ten minutes, were simply swept away and silenced by the flash flood.

At 0.9 kmh, the record 200 million liters of water (52.8 billion U.S. gallons, filling 80,000 Olympic-sized swimming pools) reportedly traveled at twice the speed of past floods.

Residential woodpile, Nagarkot, 2026
RJ Peltz-Steele CC BY-NC-SA 4.0

Before the avalanche, when the Shah administration marked 100 days in office, on July 4, there was ample optimism and satisfaction in Nepal; Shah supporters generally were pleased. The party claimed meaningful progress on 70 to 90 manifesto points, according to various reports. A Kathmandu Post analysis pegged achievement at more like 38. But really, that's not bad for a start.

A range of initiatives already are transforming healthcare. Digital tools have been deployed to facilitate access to hospitals, an air ambulance system has extended its capacity to remote locales, and burn units and pharmacy services are expanding.

The administration reimbursed small-account holders who lost money in a public savings corruption scandal and compensated families of persons killed in the Gen Z protests (more on the protests in my earlier posts). Government offices have been streamlined, reducing backlogs and wait times on services such as passports, driver licenses, and business licenses. Legislative groundwork has been laid for constitutional and economic reforms.

There has been pushback and controversy. The administration has implemented a range of anti-corruption initiatives, including investigation and arrest of the prior prime minister. I'm not a fan of criminalizing politics, but in this case, the move is not unwarranted.

Nevertheless, and perhaps predictably, legislators are fretting over Shah's imperiousness. And outcry is coming not only from opposition parties, as Shah upends the status quo. Though I figure that's to be expected when a serious reformer takes on corruption. Imagine if Bernie Sanders had won the U.S. election in 2020. Opponents in his own party fretted that he would get nothing done with a recalcitrant Congress, but I thirsted for the effort and the naming of names it would entail.

The Shah administration also has drawn displeasure by seizing land, even if the takings are legitimate. Some seizures represent claw-backs of public lands that were sold off or given away as a function of government corruption (Yosemite, anyone?). Some seizures are lawful takings for infrastructure development. The problem arises in that with a downtrodden working class, much land is occupied by squatters, and the government has not always been gentle with their removal. Human rights advocates have criticized the Shah administration for forgetting the people whilst helping The People.

Notwithstanding political discontent, reasoned criticism, and media impatience, to my mind, Shah has been on a tear. Now the disaster poses a test. 

Of course, no one will blame Shah for the avalanche, nor for melting glaciers. Rather, if he plays his cards right, he can blame the West for global warming, China for lack of early warning, and his predecessors for the weak infrastructure that is aggravating rescue and will dog recovery. 

Rather, his problem is a plain old economic one. Collecting billions in foreign aid will be a chore in the present batten-down-the-hatches transnational zeitgeist. And focusing efforts on the relatively small and remote northern border region where the disaster occurred will mean a major drain on national resources, diverting focus and finance from the prime minister's agenda. 

Natural disasters have undone chief executives before. Ready or not, Nepal is going to find out whether Balen Shah has the right stuff to overcome.

CCTV Capture 1 at Gyirong Port

CCTV Capture 2 at Gyirong Port

Kuwait ponders a future after fossil fuels

Kuwait City skyline

Kuwait is an oil country, and Kuwait City glows with prosperity. Kuwaitis know, though, that they can't ride the oil train forever.

Earlier this month, I took part in a program of the Kuwait Bar Association (KBA) and International Association of Lawyers (UIA) in Kuwait on the mediation of energy disputes. (All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

Kuwait Bar Association (Society of Lawyers)

The program addressed both state and corporate actors, which often in the Middle East are functionally the same, as political royals are only formally differentiated from their investments. Iraq invaded Kuwait in 1990 largely in response to long-running disputes over access to oil reserves under the countries' desert border. So it's understandable that Kuwait, powered by a 70-year-old, $1tn sovereign wealth fund born almost entirely of oil revenue, is an eager evangelist for non-violent dispute resolution in extractive industries.

Kuwait Towers

I spent some additional time in Kuwait, besides the KBA-UIA program, to see the sights of Kuwait City. The first place I went was the iconic Kuwait Towers. Dating to 1979, the towers were designed to be monumental more than functional, architecturally distinct among Kuwait's historical water towers, a remaining few clusters of which dot the urban landscape. Repaired since they were trashed in the Iraq invasion, and refurbished in the 2010s, the Kuwait Towers are a patriotic reminder of a Kuwait that long imported fresh water for its survival, before oil wealth paid for expensive but effective desalinization. 

Dhow model at Marine Museum

On display at the Al Hashemi Marine Museum and the Maritime Museum are Kuwaiti dhows dating to the 19th century. Some were used for pearling, the dangerous prospect but potential big score of a once seafaring economy. Many of the dhows are specially fitted with large water tanks running along the keel.

Thus imported, water historically was famously expensive in Kuwait. There's still a popular maxim that water, the truly scarce resource of the desert, is more expensive than oil. Water still is expensive, or should be, because desalinization is expensive and largely fossil fueled. 

Other legacy water towers

Government subsidies, however, obscure the cost of water. A combined utility bill in Kuwait, including water, electricity, sewer, garbage, etc., might run US$40 or $50 a month, single family—a lot for some locals, especially ex-pat laborers. But even correcting to U.S. cost of living with a 250% multiplier, utilities including water are far cheaper than in the States. Environmentalists fret over the conceit that water is inexpensive. I thought that my hotels would caution about water consumption, as is common in desert countries, not to mention American desert states, but they did not.

In keeping with the maxim, petrol is cheap. I was worried when Europcar warned me that gas stations accept only cash—until I worked out the prices. I filled up my SUV rental's 13-gallon (about 50L) tank for less than US$10.

Evening recreation at Dasman Beach

There's much to see in Kuwait City, in terms of museums and historical sites. What struck me, though, is the prevalence of western influence and a near indifference to foreign tourism. Attractions are aimed at locals. Kuwait excels at affording its people diversions of all kinds, including the educational and recreational: museums, beaches, playing fields. But the focus is decidedly domestic, bringing the world to Kuwaitis, not the other way around.

Texas Roadhouse Beneid Al Gar, one of three Kuwait City locations

Limited opening hours and a ramshackle bus system make many attractions difficult to access for visitors. Ride-share app Careem works well, though drivers speak little English. Some places' websites are in Arabic only. Besides foods, souvenirs are sorely limited: the norm is an assortment of refrigerator magnets and ball caps with cheap, afterthought patches. Walking south from Kuwait Towers on the city's corniche, the extent of Kuwait's Americanization in particular is on full display. Behind the beaches, the chain restaurants line up: TGI Friday's, the Cheesecake Factory, Texas Roadhouse.

One tentacle of sprawling Souq Al-Mubarakiya

Besides the beach, a favorite evening destination for locals is one of the city's many shopping malls, from the central 1,250-square-foot Assima Mall, with its gourmet Monoprix grocery, to the sprawling 334-acre (1.35m-square-meter) Avenues, with more than 1,100 retailers. Notwithstanding the scale and upscale nature of these operations, they are loaded with the sort of western retailers found on main street anywhere. There's plenty to buy, eat, and drink—besides alcohol; Kuwait is a dry country—but very little that is specially Arabian. A more touristically gratifying destination is the city's Mubarakiya Souq, though its modernized storefronts also cater mostly to local needs. The people-watching is better than the shopping.

Camels, highwayside

To see more than just the city, and also to get a closer look at both rural life and Kuwaiti infrastructure, I drove out both to the Iraq border in the north and to the Saudi border in the south. The highway network is impressive, if a work in progress, strong on asphalt, weak on road marking. Polished bridges here and there are designed for the exclusive use of crossing camels.

In both the north and the south, the desert is dotted with green patches of farms, fed, remarkably, by well water. Visiting these farms for markets of fresh produce, petting zoos, and other children's amusements is a seasonal family pastime.

Starbucks Wafra

Near the Saudi border, the town of Wafra is the center of an equine economy. Riding centers, breeding operations, and a market for export speak to the enduring importance of horses in Arabia. On Wafra's dusty outskirts, I was surprised to find a cluster of modern buildings, including a multistory veterinary center and, no kidding, the farthest flung Starbucks I've ever seen. A sign at Starbucks cautioned that horses are not permitted in the drive-thru.

Electric towers in the desert

Strung across the desert landscape is a mind-boggling network of electric towers, stretching lines into the distance from any vantage point. Kuwait imports electricity from Gulf partners such as Qatar and Oman, and even then struggles to meet demand in sweltering summers (e.g., N.Y. Times). Meeting electrical needs is simultaneously an incentive and an obstacle to Kuwait energy transition away from fossil-fuel dependence.

Change through energy transition and emission reduction was a recurring theme at the mediation program, besides the benefits and skills of mediation itself. I did not expect to hear, and am not accustomed to hearing, harsh criticism of fossil-fuel dependence in the Middle East. Yet in a session titled "The Climate Crisis and the Transition Imperative," speakers were adamant opponents of the status quo.

Panelists: Yousef Al-Abdullah; Elena Athwal, Qatar,
founder and CEO of consulting firm Icelis Global; and Sara Akbar

Moderator Sara Akbar, a chemical petroleum engineer, current CEO of Oilserv Kuwait, and a renowned figure in the modern history of Kuwaiti oil development, condemned the "New World Disorder" of Trumpian climate-change denial and on-again-off-again Paris participation. She argued passionately that the global costs of unchecked climate change, including devastated coastal cities and lost lives, will vastly outpace the costs of energy transition to renewables. According to Akbar, even the Kuwait oil industry understands that the era of fossil-fuel dominance in the Kuwait economy must end.

Akbar cited an interesting and alarming local statistic: Kuwait has long monitored the maximum temperature of the Persian Gulf at the sea floor, which reliably marked 95 or 96 degrees Fahrenheit. Now, she said, it routinely exceeds 100 degrees, evidencing the evaporation that is fueling catastrophic rainstorms from Dubai to Bangladesh.

Yousef Al-Abdullah, research scientist at the Kuwait Institute for Scientific Research, discussed the energy transition and emission reduction commitments of Gulf states. In contrast with the U.S. re-withdrawal from the Paris Agreement and Trump Administration promise to double-down on drilling, Gulf states have articulated ambitious aims.

A leader in goal-setting is the United Arab Emirates (UAE). The UAE aims for 47% reduction in greenhouse gas (GHG) emissions by 2030. In energy transition, the UAE aims for 15% renewables in its energy mix; has adopted a net-zero target, green hydrogen strategy, independent energy regulator, and national climate law; plans a massive expansion of solar capacity; and is investing more than $14 billion in transition this fiscal year.

Persian Gulf coastline from Kuwait Towers

Kuwait looks weak on the same benchmarks. But that's not the whole story, Al-Abdullah said. Kuwait believes that some neighbors have announced goals they can't realistically meet, such as the Saudi aim to cut 278m tons of annual GHG emissions by 2030, and Kuwait wants to be realistic. Notwithstanding articulated commitments on the international stage, Kuwait has announced targets domestically, Al-Abdullah said, such as net-zero in the oil sector by 2050, and in other sectors by 2060.

Oil production is down over 10 years, Al-Abdullah said, and that's problematic for environmental strategy. The economy remains dependent on fossil fuels, to the tune of 90% of revenues, and a strong economy is needed to transition away from fossil fuels. Production is down for many reasons, including OPEC restrictions; increased competition from other sources, such as Uruguay, Paraguay, Guyana, Mauritania, and Uganda; and rising production costs.

Here my observation on Kuwait's underdeveloped tourism economy is salient, at least in small part. Because Al-Abdullah said that key to Kuwait's future is diversification of the economy, reducing the dominant position of fossil fuels, especially relative to a newly developed service sector. 

In domestic policy, a national plan called "Kuwait Vision 2035" contemplates an economy centered on logistics, leveraging Kuwait's world-crossroads location by, for example, expanding airport and seaport capacity. Vision 2035 imagines a Kuwait that is more livable for residents and hospitable to visitors, expanding highways and building a rail and metro system.

Besides infrastructure, transformation of Kuwait's workforce is required, too. Kuwait suffers an affliction known to other oil-rich states, which is a comfortable, but under-skilled national workforce. Kuwait's education system must rise to meet the challenge of preparing Kuwaitis to participate in the new economy, while the social and economic fabric must expand the job market and incentivize people to enter it.

Like other Middle Eastern states, Kuwait has a worrisome dependence on foreign workers. Ex-pats, whom I mentioned above, constitute some 70% of the resident population and have no pathway to citizenship. Blue-collar workers hale especially from the Asian subcontinent and Pacific rim. Qatar's plight in this regard was highlighted and made controversial by the location of the 2022 FIFA World Cup there; whether reforms were meaningful or sufficient is debatable.

The existing service economy, including legal, financial, and engineering services, depends heavily on ex-pat white-collar workers, too, who make up a fair chunk of that 70%. At the KBA-UIA program, I met lawyers from other Arabic-speaking countries who have worked for years, even decades, in Kuwait. They are generously permitted to practice, more than an out-of-jurisdiction lawyer may in the States, on matters related to their home jurisdictions. But there's no pathway to bar admission, such as might expose the domestic market to competition.

Legal and regulatory reforms will have to complement the development of a service sector and trade center, Al-Abdullah said. I don't think Kuwaitis alone will be able to make that change. Rather, Kuwait will have to open itself up with a more robust immigration framework, affording ex-pats the likes of property and other rights, if not naturalization, to foster a justified sense of ownership in the new economy.

KOC Oil and Gas Exhibition Hall

Apropos of energy transition, one of the most interesting tourist attractions in Kuwait is the Kuwait Oil Company (KOC) Oil and Gas Exhibition. The exhibition—reservations required for guided tours only—offers an artfully constructed tour of the history of Kuwait, from its desert and seafaring cultural history, to British protectorate and the discovery of oil, rise to global energy power, and Iraq invasion, destruction, and recovery.

Exhibit dramatizing Kuwait oil extraction: every second, every day

The exhibition is decidedly a paean to oil. But it is not wholly environmentally tone-deaf. One dramatic exhibit shows, with a massive gush of black liquid, the astonishing amount of oil that Kuwait pumps from the earth every second of every day, averaged out. The exhibits don't say it plainly, but there is an undeniable implication that this business model is not indefinitely sustainable.

The next chapter of Kuwait energy policy is ready to be written.

Tchotchkes for sale at the KOC Oil and Gas Exhibition gift shop

Kuwait sign on the corniche

U.S. District Judge Ann Aiken holds her own

U.S. District Judge Ann Aiken
Public domain via Wikimedia Commons

Today, March 10, is the International Day of Women Judges, and I want to nominate for recognition U.S. Senior District Judge Ann Aiken.

Judge Aiken is the trial judge in the best known American youth climate suit, Juliana v. United States (in Climate Change Litigation Database). She's been a dog with a bone in Juliana, refusing to give short shrift to the complainants despite immense pressure by Obama, Trump, and Biden administrations, and despite increasingly anguished glares of disapproval over the rims of reading glasses at the Ninth Circuit.

Judge Aiken's 2016 district court opinion in Juliana, however many times it's pummeled on appeal, is masterful (which is to take nothing away from the groundwork expertly laid by Magistrate Judge Thomas M. Coffin). Judge Aiken makes the case for climate change litigation upon the seemingly inarguable proposition that the constitutional right to "life, liberty, or property" rather implies a breathable atmosphere as prerequisite.

The wrinkle in Aiken's analysis is the implication of the courts in the policy business of the political branches. That's why Aiken drives everyone from her appellate overseers to American presidents to handwringing paroxysm. But that's what we should want: If judges are to "throw up their hands" and do nothing to avert the extinction of human life, as Ninth Circuit Judge Josephine Staton accused her colleagues on appeal in Juliana in 2020, we should want to be sure that the very best arguments have been tested.

Judge Aiken was appointed to the federal bench by President Bill Clinton in 1998. She previously practiced law in Oregon and served as a state judge. Her willingness to be bold when the situation demands came to national attention in 2007 when she ruled that parts of the USA PATRIOT Act violated the Fourth Amendment for authorizing warrantless surveillance. Also boldly, Aiken has five children.

I've edited Juliana 2016 for the forthcoming chapter 17, on government liability, of my Tortz volume 2, out in revised edition later this year, 2024. That edit emphasizes the tort and civil rights aspects of the opinion. I have prepared a different edit, if any teacher desires, emphasizing points of constitutional law for my Comparative Law class in fall 2024 and a forthcoming curriculum on global law being organized under the auspices of European Legal Practice Integrated Studies, an Erasmus program.

Court denies Exxon anti-SLAPP relief in Mass. climate claims; European court bemoans Russian SLAPP

AG Maura Healey

The Massachusetts anti-SLAPP statute does not work in defense of Attorney General enforcement actions, the Supreme Judicial Court decided in May in climate change litigation against Exxon Mobil Corp. Europe and the UK, meanwhile, are working out their approaches to anti-SLAPP.

I am in general anti anti-SLAPP, because the statutes are drawn too broadly. I recited my lamentations in April 2021. I support anti-SLAPP in principle when it works the way it was intended, but broadly drawn anti-SLAPP statutes create innumerable headaches and are used to protect Goliath from David as often as the other way around. Exxon's attempted reliance on the law fits the mold.

With the usual American MO, anti-SLAPP statutes try to slap an ill-fitting patchwork fix on a systemic problem, which is transaction costs in civil litigation, declaring the problem solved while in fact it festers, rotting social and political institutions from the inside out. Only when a bridge collapses does everybody momentarily notice, and then we move on.

The Massachusetts Supreme Judicial Court narrowly saved the bridge from collapse this time by rejecting Exxon Mobil's invocation of the commonwealth's typically broad anti-SLAPP statute. Exxon is defending itself against Attorney General Maura Healey. The AG accuses Exxon of deceptive statements that concealed what Big Oil knew about the climate risk of fossil fuel extraction, thus, responsibility for climate change. 

State and locality climate change lawsuits against Big Oil are proliferating in the United States and the world right now, as governments try to figure out where they will get the money to bolster infrastructure against rising sea levels and tempestuous weather events. In the context of "super torts," I wrote in November 2020 about the lawsuit against Big Oil by my home state of Rhode Island. By focusing on claims in state law, public plaintiffs such as my childhood hometown of Baltimore have managed to steer their claims into state court, evading the impact of a U.S. Supreme Court inclination to see the claims in federal court, as Big Oil defendants would prefer.

Accordingly, AG Healey is pursuing the commonwealth claim under Massachusetts's expansive unfair and deceptive practices act, chapter 93A. The powerful law affords double and treble damages and attorney fees in cases of willful and knowing violations, and it can be used as a private or public enforcement mechanism.

Exxon attempted to use the commonwealth's anti-SLAPP statute in its defense. The essence of Exxon's public statements about the environmental safety fossil fuels constituted participation in the public marketplace of ideas, Exxon asserts, so the AG's persecution is just the sort of action that anti-SLAPP should head off.

One limitation, thankfully, in the Massachusetts anti-SLAPP law is that it hinges on petition activity, not merely free speech. There is some margin around the word "petition," as the statute draws in public statements "reasonably likely to encourage consideration or review of an issue" by government. But the anti-SLAPP statute cannot be triggered simply because whatever civil wrong the defendant is accused of was accomplished by way of communication.

The AG objected to Exxon's invocation of anti-SLAPP on this distinction, because Big Oil made plenty of problematic statements to the public. I think she's right. But the court did not get that far. Rather, the court held in favor of the AG on her alternative argument, that the anti-SLAPP statute simply does not apply to public enforcement actions by the AG.

There is a questionable logic to Exxon's theory that petitioning must be protected against attack when the attacker is the petition-ee, government. A petitioner might be expected instead to make a First Amendment retaliation claim, if the attack theory holds up. Also, the anti-SLAPP statute, in a second provision, authorizes intervention by the AG on behalf of anti-SLAPP movants. So the legislature knew how to say "attorney general" when it wanted to, and the AG isn't mentioned anywhere else.

More importantly, the Supreme Judicial Court held, defense against a public enforcement action is not consistent with the legislative purpose of the anti-SLAPP statute: "The legislative history makes clear that the motivation for the anti-SLAPP statute was vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval." That's the paradigmatic case that gave birth to anti-SLAPP in 1988.

The court observed that its holding accords with one other jurisdiction that has considered the same problem. The Supreme Judicial Court of Maine declined to apply its anti-SLAPP statute in a municipal enforcement action for a zoning violation, despite the would-be movant's assertion of victimization.

Curious, though, that mass-media-Goliath defense against defamation and privacy lawsuits didn't get a mention in the court's main text. In a telling footnote, the court opined:

Although originally drafted with a particular purpose in mind—that is, the prevention of lawsuits used by developers to punish and dissuade those objecting to their projects in the permitting process—the anti-SLAPP statute's broadly drafted provisions, particularly its wide-ranging definition of petitioning activity, have led to a significant expansion of its application.... The ever-increasing complexity of the anti-SLAPP case law has also made resolution of these cases difficult and time consuming.... We recognize that this case law may require further reconsideration and simplification to ensure that the statutory purposes of the anti-SLAPP statute are accomplished and the orderly resolution of these cases is not disrupted.... We also note that other States have defined petitioning activity more narrowly and that bills have been filed in our Legislature to do the same....

I don't want to be an I-told-you-so, but.... 

Europe and the UK might ought take heed.

The UK invited public comment in a consultation in the spring as it ponders anti-SLAPP, and the European Commission is working out legislation now for the European Union.

In a March judgment, the European Court of Human Rights (ECtHR) recognized SLAPPs as a human rights problem. The court held that a regional Russian government had violated free speech rights with a civil defamation action against an online media outlet critical of officials. 

Of course, the Massachusetts and Maine cases should only aggravate the European court's worry, because it was a public authority that was the complainant in Russia. What if AG Healey were on a crusade against news outlets, using the deceptive practices law to persecute newspapers critical of the commonwealth government? (Is that how Exxon sees itself, victimized?) Would anti-SLAPP not be an apt defense?

The problem did not wholly escape the court's notice. The court struggled to distinguish an earlier Massachusetts case, Hanover, in which the applicability of anti-SLAPP in public enforcement simply had not been challenged when a town sued a union in a row over procurement. In a final footnote, the court wrote: "We note that the union in Hanover was not seeking to employ the anti-SLAPP statute to prevent local government enforcement of laws. As the issue was not raised in that case, and is not raised here, we need not decide whether any or all local government enforcement actions are beyond the scope of the anti-SLAPP statute."

So while the court lamented the burgeoning complexity of anti-SLAPP with one breath, it opened the door to more confusion with the next.

Hanover was characterized as an abuse-of-process suit, and therein lies a suggestion, I believe and have written before, of a better way to manage SLAPPs.

The Massachusetts case is Commonwealth v. Exxon Mobil, No. SJC-13211 (Mass. May 24, 2022). Justice Scott Kafker wrote the unanimous opinion. Track the case at the Climate Change Litigation Database.

The ECtHR case is OOO Memo v. Russia, No. 2840/10 (Eur. Ct. Hum. Rts. Mar. 15, 2022).

Judge delays decision again on Mass. right to repair, cites need to study SCOTUS climate change ruling

pix4free

Last week, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court dealt a major blow to federal regulators on the climate change front, and the case has stalled, again, release of the trial court decision over the right-to-repair law in Massachusetts.

First, a word on West Virginia, in which the Court struck down climate change-combative regulations for being born of a breadth not sufficiently specifically authorized by Congress. Others will comment more ably than I on the constitutional law of it all, but from where I sit, the case was correctly decided. Before you throw your rotten tomatoes at me for composting, at least absorb my two cents on the matter: 

We have too long been under the rule of administrative fiat in the United States, rather than democratic lawmaking, because our dysfunctional Congress long ago abdicated its role as a co-equal branch of government. Early in the 20th century, the Court unwisely allowed the non-delegation doctrine to slip away, and with it went the checks and balances of the constitutional separation of powers itself. So we're overdue for a correction.

You don't want to hear it from me, but the same problem pertains in the Roe/Dobbs debacle, where the administrative fiats on privacy have been coming from the Court rather than the administrative state, but certainly not from Congress: same difference. People, especially people ill schooled in the separation of powers—wherefore the sorry state of K12?—look to monolithic government for answers to their problems. They don't much care which public office provides the answer. So they fail to distinguish a Supreme Court decision—West Virginia or Dobbs—that says not our job from one that says simply not. Protestors picketing the Supreme Court building in recent weeks were on the wrong side of the street.

Abdication is a win-win for lawmakers, who can rake in the dough from corporations for the small price of doing nothing while blaming other branches of government for failing to offer a fix. Lawmakers sat on their hands on privacy and women's rights for decades in the wake of Griswold and Roe, content to let the Court struggle to map fine lines. Now they pantomime outrage and aspersion when Roe goes away and there is no statutory civil rights framework to replace it, nor even a framework to protect interstate travel rights, which is well within congressional authority.

Anyway, the angle on West Virginia that interests me is that on July 1, the U.S. District Judge Douglas P. Woodlock again delayed his decision in automakers' challenge to the Massachusetts right-to-repair initiative, saying that he would have to study the impact, if any, of West Virginia on his rationale. (E.g., Repair Driven News.)

Issuance of the decision in the case has been delayed time and again this calendar year, and the case has spurred occasional fireworks. Chris Villani for Law 360 wrote in February how "[a]n exasperated federal judge said ... he was close to a verdict in a suit challenging Massachusetts' revised 'right to repair' law, yet he pressed attorneys for a group of manufacturers about why they didn't tell him that new Subaru and Kia vehicles complied with rules they claimed are impossible to follow."

It was not clear, later, whether Subaru and Kia had actually complied, or just turned off the offending telematic features in new cars to be sold in Massachusetts. Turning off an otherwise functional mechanism does not, Massachusetts AG Maura Healey opined, and I agree, comply with the consumer data access law.

Though the omission that aggravated the judge was explainable, the incident is demonstrative nonetheless of automakers' obfuscating foot-dragging in their conduct of the case overall. They threw every kitchen-sink theory and procedural roadblock at the Massachusetts law, because every day of noncompliance is money in the bank, never mind the merits, nor the defense cost to taxpayers.

Automakers' problem is less with telematics regulation and more with being regulated state by state, rather than by federal standards. Federal regulation, rather than state regulation, has two powerful advantages for industry. First, federal regulations are universal, rather than 50+ in number, which vastly reduces compliance costs. More efficiency in compliance costs is good for consumers, too. So that's fair.

Second, federal regulations come from a grinding rule-making process that is almost irretrievably contaminated by the mostly lawful if deeply lamentable corruption of the industry-state complex. So manufacturers can lobby their way free of meaningful burdens that would benefit consumers and protect social and economic rights. Less fair.

It is not clear why Judge Woodlock thinks that West Virginia might affect his ruling. I might be able to say if I followed the Massachusetts case more closely. Absent a study, my guess is that the issue has to do with preemption. One of the automakers' kitchen-sink challenges alleged that Massachusetts could not regulate telematics because federal regulation of the auto industry impliedly preempts state right-to-repair regulation. If the judge thought that the vitality of that theory depended on the breadth of the federal regulations, and the permissible breadth of federal regulations, when ambiguous, is necessarily narrowed by West Virginia, then maybe it's less likely that the federal regulations can be said impliedly to preclude state regulation.

I'm now piling supposition upon supposition, but if I'm right, the likelihood is that the trial court was going to rule in favor of industry, and it's possible but unlikely that West Virginia would change that. I put money on industry on this one back in the winter, too, in part because I supposed that the judge's exasperation was evoked by a seeming deception on the part of the soon-to-be-announced prevailing side, and in part because I'm a pessimist. Or, I like to think, a realist.

My will for public policy, though, if not my bet, is on the side of AG Healey. Previously, I've written favorably about right to repair as a bulwark of consumer protection, and I support the Massachusetts initiative.

The Massachusetts case is Alliance for Automotive Innovation v. Healey (D. Mass. filed Nov. 20, 2020).

Drought grips western U.S., induces ag angst in Utah

Salt Lake City—I’ve been traveling in Utah, so have witnessed the drought gripping the West.  I’m no climate scientist, so I can’t say how far off normal conditions are.  Here is what I've seen and been told.

This was my first time in Salt Lake City (SLC), at least beyond the airport.  It’s a remarkable place.  Having visited the cedars of Lebanon and driven the Dead Sea highway in Jordan, I understand now why the Mormon pioneers of 1847 thought there was something divinely ordained about the cedar break at the Great Salt Lake.

Salt Lake City overlook from Desolation Trail in Millcreek Canyon

I've wanted to see the Great Salt Lake as long as I can remember, but especially since reading Terry Tempest Williams's natural history-classic Refuge in the 1990s.  The Great Salt Lake's salinity tops out at about 27%.  That's shy of the roughly 34% of the Dead Sea, but still enough to preclude any waterborne animal life bigger than a brine shrimp.

Great Salt Lake from Great Salt Lake State Park

 

Bison on Antelope Island in the Great Salt Lake; Salt Lake City in the distance

At the same time, from a contemporary, climate-wary perspective, one can’t help but look at SLC and think, “Maybe this shouldn’t be here” (a sentiment admittedly more apt with regard to desert cities to the west, such as Las Vegas).

Salt Lake City from atop the Utah Capitol Steps

I have seen warnings all around Utah not to park cars on dry grass, for fear of fire.  The rotatable Smoky-the-Bear fire danger signs are dialed up to “Extreme.”  Radio ads ask me to “slow the flow,” limiting my use of water.  Yesterday morning, June 24, it rained in SLC for the first time since May 23.  The local weather announcer gleefully reported 0.02” accumulation by 9:30 a.m. 

At Lake Powell, water levels are too low for the ferry to operate between Halls Crossing and Bullfrog.  Near Hite, Utah, in the Glen Canyon National Recreation Area, a dusty red campground sits eerily vacant astride a dry riverbed where the Colorado River falls shy of Lake Powell’s north end.

In wetter times, a waterfront campsite at the Glen Canyon National Recreation Area

 

Dry riverbed between the Colorado River (at left) and Lake Powell

A signboard with tips to “Play It Safe in the Water,” picturing jubilant boaters, gives the campground a “Planet of the Apes” feel of abandoned human infrastructure.  We often think about climate change in terms of rising sea levels, but the opposite happens, too.

"Play It Safe in the Water"

The chatty clerk at the Hollow Mountain convenience store in Hanksville told me with a pained face that she has never seen it so dry, and, she added, her memory goes back to 1964.  She didn’t strike me as much older than 60, so I’m assuming she’s been in Utah all her life.

Hollow Mountain, Hanksville

An innkeeper in Escalante was less concerned.  He said that the drought is affecting agriculture, and that might be a welcome wake-up call to abate the cultivation of water-intensive crops that should not have been planted where they are anyway.  “Culinary water” has not been affected, he said; the area provides ample water for human settlement and tourism.

Settlers planted orchards at what is today Capitol Reef National Park.

The place that most stoked my concern and compassion was the Navajo Nation on Utah’s southeastern border.  At a Navajo-family-run inn and café in Mexican Hat, just above the border, a server told me that the area hasn’t seen a torrential rain for 10 years.  She seemed to me maybe 19, so I wonder whether she remembers.

The San Juan Inn overlooks the San Juan River, which also feeds Lake Powell.

Meanwhile, the local economy is reeling, as it seems Navajo Parks and Recreation will not be reopening touristic sites, such as Monument Valley Tribal Park, for another summer.  It’s been hard, the young server told me.  But we’ve always survived here, she said of the Navajo, so we’ll adapt.  I found the sentiment rousing, but couldn’t decide if it was wise or naïve.

Anyway, her 84-year-old grandmother makes a mean salsa verde enchilada with a Navajo-chili-style filling.

Salsa verde enchilada at The Juan Cafe, Mexican Hat

(All photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).