An Enduring Impasse on Autonomous Weapons

An article by Dustin LewisRegular readers of Just Security will know that the United States and Russia do not see eye to eye on many matters touching on war and peace, not least around cyber, information security, and the conflict in Syria. But you do not have to squint to glimpse how the two are, in several important respects, similarly positioned on one side of an enduring impasse on autonomous weapons. While there is no definition in international law of autonomous weapons, one shorthand is weapons that, once initiated, can nominate, select, and apply force to targets without further human intervention. The debate is not purely academic: a handful of systems falling into this relatively narrow definition are already in use, such as so-called loitering munitions; once launched, those systems can linger in the air over several hours while scanning for targets and then strike without in-the-moment clearance by a human operator. The spectrum of States’ views is on display in the Group of Governmental Experts (GGE) on emerging technologies in the area of lethal autonomous weapons. At its core, the deadlock concerns whether existing international law mostly suffices (as the United States, Russia, and a handful of others have asserted) or new legal rules are needed (as dozens of other States have contended). In brief, beyond largely generic reaffirmations of existing rules and agreement on the importance of the “human element” in the use of force, States disagree in certain critical respects on how to frame and address an array of legal dimensions concerning autonomous weapons.

A Former Surgeon General on the Coronavirus Pandemic

A podcast by Noah FeldmanDr. Vivek Murthy, the former Surgeon General of the United States and health care advisor to Democratic presidential nominee Joe Biden, discusses how to rebuild public trust in science, why rolling out a COVID-19 vaccine will be challenging, and why despite everything he still feels hopeful.

Wilbur Ross’s Census Shutdown Is Against the Rule of Law

An article by Noah FeldmanSecretary of Commerce Wilbur Ross appears to be openly flouting the law in connection with the census — again. This is the same cabinet official who was slapped down by the Supreme Court for violating proper legal procedure in trying to introduce a citizenship question to the census. Now, Ross has announced his intent to end the census counting early, on October 5, even though a federal district judge ordered him last week to let the counting continue until the scheduled end date of October 31. If this sounds crazy, that’s because it is. It’s not normal for executive branch officials to violate court orders directed explicitly at them. Violating a federal judge’s order undermines the rule of law. It is ordinarily met with sanctions that can range from large fines to imprisonment. The judge will now have to decide what steps are appropriate, and fast. These recent events grow out of a lawsuit brought by a combination of counties, cities and nongovernmental organizations against Ross and the official in charge of the census, Steven Dillingham. The suit challenged a “replan” issued by the Census Bureau in August that said, among other things, that census counting would end on September 30, 2020, a month before the originally planned end of October 31. On September 24, Judge Lucy Koh, a highly respected judge, issued an injunction blocking the new proposed date. Her reasoning was that Ross and Billingham and their agencies had not offered an adequate, legitimate, reasoned explanation for the change. That failure violated the Administrative Procedure Act. This was essentially the same reasoning used by Chief Justice John Roberts and the Supreme Court in 2019 to block the citizenship question from the census.

Managing the Bedbugs, Bathroom Shortages and Big Egos at Yalta

In the opening weeks of 1945, with their armies racing to Berlin, the three Allied leaders recognized that the war had reached a critical juncture and called for another strategy session to resolve difficult questions about the defeat of Germany and the future organization of Europe. Weary and coping increasingly with the frailties of age, Britain’s prime minister, Winston Churchill, dreaded the prospect of traveling all the way to the Crimea, as far west as Stalin was willing to go. He harbored grave concerns about holding the meeting on the Black Sea coast, and complained that if the planners had been given 10 years to research a possible rendezvous site, they could not have found a more inconvenient venue. But eager to secure Soviet cooperation to guarantee victory in the Pacific, President Franklin D. Roosevelt, despite his own deteriorating health, accepted Stalin’s proposal for a summit in Yalta. Churchill, who had suffered a serious bout of pneumonia on the way home from the last meeting of the “Big Three,” in Tehran, grudgingly agreed to make the arduous journey, but warned his daughter, Sarah, that this time he knew he was “in for something. According to “The Daughters of Yalta,” Catherine Grace Katz’s ‘22 detailed behind-the-scenes account of the conference, Churchill’s trip did not get off to a promising start. Between the blizzard that chased them east and his percolating anxiety, by the time Churchill arrived at Malta on Jan. 30 for a preliminary huddle with Roosevelt, he was feverish and filled with trepidation about the upcoming negotiations. He was also sweating the state of the British-American friendship, which was not as close as it had been in the early days of the war. It was essential that he find a way to settle Britain’s differences with America, or it would portend badly for postwar cooperation.

Amy Coney Barrett’s confirmation could erode US EPA’s authority on climate rules

The confirmation of Amy Coney Barrett to the U.S. Supreme Court would produce a 6-3 conservative majority that could have far-reaching implications for federal energy and climate policy, according to several legal experts. Barrett, 48, did not establish a significant environmental track record from her current seat on the U.S. Court of Appeals for the 7th Circuit before being nominated Sept. 26 to fill the open Supreme Court seat created by the recent death of Justice Ruth Bader Ginsburg. As a former law clerk for the late Justice Antonin Scalia, however, Barrett adopted the conservative icon’s strict reading of the U.S. Constitution known as originalism and advanced by the Federalist Society, a group dedicated to confirming originalist judges. Several legal experts said that view of the law, which aims to follow closely the original understandings and expectations of the Constitution’s drafters and ratifiers, could make the conservative-tilting high court even less inclined to grant federal agencies like the U.S. Environmental Protection Agency deference in regulating planet-warming greenhouse gases…And with the retirement in 2018 of Justice Anthony Kennedy and the addition of his replacement, Justice Brett Kavanaugh, the court no longer has the same majority that produced the 5-4 decision in Massachusetts. “You could leave Massachusetts v. EPA untouched, but you could drain it of its efficacy by interpreting away the other authorities within the Clean Air Act to address CO2 in any kind of meaningful way,” said Joe Goffman, former general counsel in the Obama EPA’s Office of Air and Radiation. Goffman said the addition of another conservative justice to the Supreme Court could have major consequences if it eventually decides Clean Air Act legal challenges dealing with the EPA’s authority to regulate methane from oil and gas facilities and California’s long-held waiver authority to set its own tailpipe pollution standards. “In both cases, they overturned years and decades of the agency’s own precedents,” Goffman said in an interview. “That means that to the extent it is potentially a jump ball as to what the courts are going to do, you really need to have as many judges that, let’s say signed up for the Federalist Society worldview, on the bench in order to increase your chances of winning what could otherwise be a tough challenge.”

The Supreme Court’s coming rightward shift on climate

Amy Coney Barrett’s likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract. Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court. If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS. Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects…Several analysts point to Barrett’s writings that suggest support for “non-delegation doctrine,” a legal theory that massively restricts how much power Congress can hand off to executive agencies. A related area: She could take a narrow view of the “Chevron deference,” or the idea agencies deserve running room when statutes are vague or silent on a topic. Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic…Axios also asked Harvard Law School’s Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: “While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here.”

One Planet: The Trump Administration’s Environmental Rollbacks

On this edition of Your Call’s One Planet Series, we’re discussing the Trump administration’s actions to weaken or dismantle environmental regulations that are meant to protect the environment, public health and curb greenhouse gases. Over the past four years, the administration has repealed or weakened at least 100 environmental regulations, including fuel economy standards, rules governing clean air, and the regulation of methane emissions. Guests: Caitlin McCoy, staff attorney with the Environmental and Energy Law Program at Harvard Law School. Sharon Lerner, investigative reporter for The Intercept, covering health and the environment.

Bloomberg Markets: The Close

Romaine Bostick & Taylor Riggs bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street and tackle the SCOTUS impact on the Affordable Care Act, the delayed TikTok ban and oil’s lackluster demand Guests Today: Meb Farber of Cambria Investment Management, Jonathan Gruber of MIT, David Conrod of FocusPoint, Jose Antonio Vargas of Define American, Chris Davis of Davis Advisors, Jason Katz of UBS, Richard Lazarus of Harvard Law School.

What Amy Coney Barrett could mean for climate law

Trump’s nomination of Amy Coney Barrett, a Circuit Court judge with strong support from conservatives, could spell trouble for landmark judicial holdings about climate change, Pro’s Alex Guillén reports. Barrett is considered an “originalist” in the mold of late Justice Antonin Scalia, for whom she clerked in the late 1990s. She has long advocated for the Supreme Court to show more flexibility in overturning past precedents. That could apply to the high court’s 2007 ruling in Massachusetts v. EPA that said the Clean Air Act gave EPA the authority to regulate greenhouse gases, Alex reports. At least two justices still on the court have signaled interest in revisiting the climate ruling — Justices Samuel Alito and Clarence Thomas — and other members of the court’s conservative wing may also be sympathetic to arguments to reconsider the decision. With a more conservative judge such as Barrett, the court could weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School’s Environmental and Energy Law Program and a former Obama White House adviser. That could include “interpreting provisions to require additional cost benefit analysis, taking a limited approach to the ‘co-benefits’ that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution,” she said in an email. No case has yet advanced far enough for a court to take a position on the scope of EPA’s authority, but if Trump is reelected, that could provide such an opening.

How a More Conservative Supreme Court Could Impact Environmental Laws

With Judge Amy Coney Barrett poised to become the sixth Republican-nominated justice on the nation’s highest bench, environmental law experts see her influence tipping the scales on energy and climate rules. President Trump tapped Barrett on Saturday, and Trump—with the help of a Republican-led Senate—is intent on swiftly filling the position left by the late Justice Ruth Bader Ginsburg, who was nominated in 1993 by President Clinton, a Democrat (Greenwire, Sept. 26). Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, has a relatively slim record on climate and environmental matters. But if she is confirmed to the high court, Barrett, 48, likely would lock up a conservative coalition there, legal experts said. That bloc could smooth the path for future environmental rollbacks or make it more difficult to expand emissions regulations through a broad reading of statutory authority. “I view Barrett being added to the court as taking it even further in the direction it was already going,” said Jody Freeman, founding director of the Environmental and Energy Law Program at Harvard Law School. The court “was already headed in the direction of [being] much more skeptical of broad efforts to regulate new problems, to interpret statutes that may be older, to deal with new risks,” she added…That momentum could be a boon for Trump’s legacy of relaxing environmental standards, as a conservative high court likely would be more amenable to his viewpoint in legal challenges to those efforts. Trump has pushed to roll back regulations on vehicle, power plant and industry emissions.