Law professor writes brief for indigenous nations in lawsuit on climate change

Tuesday, December 03, 2013

LAWRENCE — Climate change has negatively affected people around the world, but it has hit native and indigenous populations especially hard, driving them from their homes, altering their ways of life and threatening their survival. A University of Kansas law professor has submitted an amicus brief to one of the nation’s top courts on behalf of several native organizations. In the underlying litigation, children are, in essence, suing the federal government for failure to take action on climate change.

On Nov. 12, Elizabeth Kronk Warner, associate professor of law and director of the Tribal Law and Government Center at the School of Law, who wrote the brief, and Michael Willis, counsel of record, submitted an amici curiae brief to the U.S. Court of Appeals for the District of Columbia Circuit. Filed on behalf of the National Congress of American Indians, The Alaska Inter-Tribal Council, Forgotten People Inc., National Native American Law Student Association and several other organizations and law professors, the brief chronicles the extreme impacts of climate change on native nations. The brief also discusses how federal law applies different to federally recognized tribes.

The underlying action seeks to hold the federal government responsible for failure to take meaningful measures on climate change. This legal action is the first at a federal court to argue that the federal government has not protected the public trust by failing to protect natural resources and air quality. The U.S. Supreme Court has established that the Environmental Protection Agency can regulate greenhouse gases, and the agency began efforts to start regulating such gases several years ago. Because of the EPA’s efforts, the U.S. Supreme Court held that litigants could not sue private parties under federal public nuisance common law in 2011.

“This is a friend of the court brief to show how people in indigenous nations are disproportionately affected by climate change even though they contribute little, if any, to the problem,” Kronk Warner said. “We’re trying to find a way to get a viable climate change claim in front of the federal courts.”

The brief has been submitted, but oral arguments have not yet been scheduled. Once the arguments are made, the court will make a ruling. If the brief is unsuccessful, the parties will need to decide whether they want to appeal the ruling to the Supreme Court. If it is successful, the defendants will have the opportunity to do the same. Kronk Warner said she hopes the court will make a decision by the end of 2014.

She compares the process to the suits brought against big tobacco in previous decades. It took many years of legal arguments before tobacco companies were found liable for the negative health effects their products caused and were required to pay compensation.

Kronk Warner was approached by Our Childrens Trust to write the brief. An expert in federal Indian law, tribal law, environment and natural resources and property, she co-edited the book “Climate Change and Indigenous Peoples: The Search for Legal Remedies” with Randall Abate, professor of law at Florida A&M University. The book was released earlier this year. 

The book examines how climate change has affected native populations around the world. In the United States, native nations in Alaska have been especially hard hit as rising temperatures have melted permafrost, endangered animals that tribes depend on to subsist, flooded villages and hindered tradition and customs. The petitioners in the case are all children, and the brief shares stories of young people who have lived with the reality of climate change.

“These are children who have had to move from their homes due to climate change,” Kronk Warner said. “It’s very compelling to see how this problem has changed their lives.”

Climate change can elicit strong emotions and is often used in political debate, but Kronk Warner said she got involved to both serve indigenous populations and the legal community.

“I don’t see this as a political issue,” she said. “The role we play as advocates is to find a way to express the commonly held view that climate change is negatively affecting people's lives in the courts. It’s been very rewarding to take part in a case that has the potential to affect the law in a positive way.”

KU Law team reaches finals of international moot court competition

Thursday, May 30, 2013

LAWRENCE — A team of third-year students once again proved the University of Kansas School of Law’s moot court mettle on the highest stage, placing 15th in the world at the WTO International Moot Court Competition.

From left: Bruno Simoes, Jade Martin, Ryan Thornton and Matthew O’Neill.For the second time in five years, a KU Law team advanced to the world finals of the competition, held this year from April 30 to May 5 in Geneva at the headquarters of the World Trade Organization. Team captain Bruno Simões, of Lawrence; Ryan Thornton, of Sapulpa, Okla; Jade Martin, Rose Hill; and Matthew O'Neill, Tecumseh, represented the university, facing off against 20 other top teams from around the globe.

“The competition was wonderful,” Simoes said. “There is not much room for error in this competition, but that's also part of what makes it exciting. For me, it was certainly one of the most rewarding and worthwhile activities I did as a law student.”

KU Law’s team initially placed 12th, but recalculated scores after the competition had concluded placed the team at their final ranking.

To reach the finals, the KU Law team had to qualify in a competitive regional round that included teams from Harvard, Queen’s University and American University. After advancing to the semifinals in Costa Rica, they had just over a month to prepare for the final round. They spent that time strengthening their argument around this year’s moot court problem, which involved currency manipulation and discriminatory preferences in banking.

“The moot court problem this year was especially complex and contentious,” said team coach Raj Bhala, the associate dean for international and comparative law and Rice Distinguished Professor. “Just grappling with these issues, much less arguing about them cogently, showed the professional sophistication and maturity of the Jayhawk trade team.”

Although the experience was demanding, the rewards made the effort worthwhile. Once again, the students met and received feedback from top-tier judges, including former WTO officials. They took time to sightsee and visited a number of prominent organizations in Geneva, enjoyed the local cuisine, and socialized and networked with the other teams, coaches, and lawyers. Perhaps most importantly, they attended a WTO career panel and interviewed for international positions, and Simoes landed a job with a prominent international trade law firm in Brussels, FratiniVergano.

“The competition is much more highly regarded outside of the U.S., so if you're thinking of working abroad, it is definitely an activity in which you should try to take part,” he said.

The competition, a simulated hearing in the World Trade Organization dispute settlement system, is sponsored by the European Law Students Association (ELSA), the largest independent law students association in the world.

It has been an outstanding year for KU Law moot court teams in international competition. Earlier this spring, the Jessup International Law Moot Court team competed in the world finals in Washington, D.C., where they placed in the top 30. KU Law is one of only two schools in the country to advance moot court teams to the finals of both the WTO and Jessup competitions.

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