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Legal news from Thursday, May 22, 2008




Alaska filing legal challenge to polar bear endangered species listing
Allyson Amster on May 22, 2008 10:27 PM ET

[JURIST] Alaska Governor Sarah Palin [official profile] announced Thursday that her office intends to launch a court challenge [press release] to last week's listing of the polar bear on the US endangered species list. The suit will be filed in US District Court in Washington and will argue that science shows that polar bears do not need to be protected. Palin argues that the designation of the polar bear as "threatened" will have a negative impact on development in Alaska. Under the Endangered Species Act [PDF text], the federal government cannot fund, authorize, or carry out any project that will have a negative impact on a listed species. Environmental News Network has more.

The US Department of Interior (DOI) made the listing [press release] over two years after the Center for Biological Diversity, Greenpeace, and the Natural Resources Defense Council [advocacy websites] petitioned to protect the polar bear under the ESA. The organizations say the polar bears' habitat, the Arctic sea ice, is at risk from global warming. One of the five factors under the ESA is "present or threatened destruction, modification, or curtailment of habitat." In 2007, the US Geological Service delivered to the US Fish and Wildlife Service, the agency responsible for administering the Endangered Species Program [official webistes], nine studies that projected continued melting of the Arctic sea ice. The FWS recommended listing the polar bear as "threatened", at risk of becoming endangered. After missing a deadline in January, the District Court ordered the DOI to make a decision [CBD press release] by May 15. While the listing requires the federal government to ensure that projects will not negatively affect the polar bear, the DOI utilized Section 4(d) of the ESA, which says that any activity allowed under the Marine Mammals Protection Act [PDF text] is allowed to continue. This will allow ongoing development of oil and gas. Environmental News Network has more. The New York Times has additional coverage.






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Pakistan signs pact with Islamic militants to implement Sharia law in province
Andrew Gilmore on May 22, 2008 4:04 PM ET

[JURIST] The government of Pakistan [JURIST news archive] reached an agreement with Taliban-linked Islamic militants in the Pakistani North-West Frontier Province (NWFP) area of Swat to implement Islamic Sharia law [CFR backgrounder; JURIST archive] in the area, according to statements attributed to the militants. Under the agreement, the Pakistani army will withdraw troops from the Swat region and will not oppose the local enforcement of Sharia in the region, while Islamic militants have agreed to halt suicide attacks and hand over foreign fighters under local protection. An Islamic justice system will be created to operate in parallel with the secular system, and established Pakistani courts will be advised by Islamic scholars. Construction is also expected to begin on an Islamic university. The Guardian has more. Reuters has additional coverage.

Violence by Islamic militants has long been a problem in Pakistan's outlying provinces. Earlier this year, Pakistan's top Taliban leader Baitullah Mehsud [BBC profile] and four others were charged [JURIST report] in the assassination of former prime minister Benzhair Bhutto [BBC obituary; JURIST news archive]. Meshud is the commander of Tehrik-e-Taliban, a group of Islamic militants with links to al-Qaeda. He has denied involvement in the attack.






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Rwanda genocide suspect transferred from Hague to ICTR
Andrew Gilmore on May 22, 2008 2:56 PM ET

[JURIST] Accused Rwanda war crimes suspect Michel Bagaragaza [TrialWatch profile; ICTR materials] was transferred [ICTR press release] from the Hague back to the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] in Arusha, Tanzania Wednesday after a Dutch court ruled that it did not have jurisdiction to try his case. In August 2007, the ICTR revoked [JURIST report] a previous order transferring Bagaragaza's case to a local court in the Netherlands after the country expressed doubt that its court system could handle the trial. In 2006, the ICTR denied [JURIST report] prosecutors' request to transfer Bagaragaza's trial to Norway because Norway did not have a specific law against genocide.

Bagaragaza surrendered [JURIST report] to the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] in August 2005. Bagaragaza has been indicted on charges of conspiracy to commit genocide, genocide, and complicity in genocide, and is alleged to have ordered his own subordinates and others to kill hundreds of Tutsi civilian refugees seeking shelter in a tea factory he supervised during the 1994 Rwandan Genocide [BBC backgrounder]. The UN News Centre has more.






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Cluster bomb ban would impede humanitarian efforts: US official
Patrick Porter on May 22, 2008 12:31 PM ET

[JURIST] The ban on cluster bombs [ICRC materials; JURIST news archive] currently being considered at the Dublin Diplomatic Conference on Cluster Munitions [official website, JURIST report] could impede humanitarian efforts by discouraging cooperation with non-signatories, a US State Department official said in a press briefing [transcript] Wednesday. US Acting Assistant Secretary for Political-Military Affairs Stephen D. Mull said that the draft treaty would bar signatories from any military cooperation, including humanitarian and peace-keeping operations, with nations that refused to sign the ban. The US has long said that it will not support a ban on cluster bombs [JURIST report]. AP has more. Reuters has additional coverage.

Opponents of cluster bombs, including some military officers, believe them to be inaccurate weapons designed to spread damage indiscriminately. An estimated 10-40 percent of the munitions fail to detonate and become a serious hazard for civilian populations. Since the two-day Oslo Conference on Cluster Munitions [conference materials] last February, there have been increasing calls to ban the weapons. Last month the US said it would not attend the 2008 Dublin conference [JURIST report], but that it is open to negotiations to reduce their impact on civilians by requiring increased reliability, accuracy and visibility of unexploded munitions.






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Senate panel votes to overturn EPA denial of California emissions waiver
Mike Rosen-Molina on May 22, 2008 11:49 AM ET

[JURIST] The US Senate Environment and Public Works Committee [official website] voted [press release] 10-9 Wednesday to overturn a decision by the Environmental Protection Agency (EPA) [official website] that rejected California's request for a waiver [JURIST news archive] allowing the state to impose stricter greenhouse gas emissions standards on cars and light duty trucks. Bill sponsor Barbara Boxer (D-CA) [personal website] told journalists that she would not press for full Senate consideration of the bill, because she expected President George W. Bush to veto it, but said in a statement that the panel's decision "brings us one step closer to giving a green light to California and the other states so they can begin tackling global warming pollution from vehicles." AP has more.

The California standards would have required car manufacturers to cut emissions by 25 percent for cars and light trucks, and 18 percent for SUVs, starting with the 2009 model year. California's Air Resources Board [official website] adopted the greenhouse gas standards in 2004 [press release], but it could not mandate them unless the EPA granted a waiver of the lighter Federal Clean Air Act (CAA) [text] standards. California is the only state permitted to seek a waiver under the CAA, but if granted, other states have the option of choosing between the federal standards and those of California. At least 11 states had indicated that they would follow the California standard. On Monday, a Majority Staff report [PDF text; JURIST report] by the US House Committee on Oversight and Government Reform [official website] suggested that the White House had played a "significant role" in the EPA decision to deny the waiver.






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European Parliament endorses criminalization of environmental offenses
Andrew Gilmore on May 22, 2008 11:10 AM ET

[JURIST] The European Parliament [official website] Wednesday adopted new rules [EP legislative materials; press release] to criminalize acts that cause serious environmental damage. Among the offenses which could now receive criminal sanctions are the illegal disposal of radioactive substances, waste management practices that harm the environment, and the slaughter or trafficking of protected plants and animals. Under the measure, each EU member state would determine its own penalties for the offenses. AFP has more.

In 2005, the European Court of Justice ruled [text; JURIST report] that the 1992 Treaty on European Union [text] conferred on the EU the power to criminalize environmental offenses. The new regulatory scheme is intended to replace a 2003 framework decision [PDF text] by the European Council [official website], which comprises the EU heads of state. When the plan was proposed in 2007 [JURIST report], EP member Timothy Kirkhope described it as a "significant transfer of power to the commission" that "sets an alarming precedent." The Italian government considered a domestic program [JURIST report] with similar provisions last year.






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US House override of farm bill veto delayed by clerical error
Patrick Porter on May 22, 2008 9:46 AM ET

[JURIST] An attempt by the US House of Representatives to override a presidential veto [JURIST report] of the new Farm Bill [HR 2419 materials] delayed late Wednesday when it was found that a section of the bill had been inadvertently left out of the version originally sent to President George W. Bush for signature. Bill supporters said they plan to submit the bill for a new vote to avoid any potential concerns about the legitimacy of the resulting law. AP has more.

The future of a landmark discrimination case [NBFA press release] brought by black farmers against the US Department of Agriculture (USDA) [official website] depends on the passage of the bill, which includes a provision [AP file report] that would reopen the class-action suit.






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FTC says 'pay-for-delay' contracts between drug makers hurt consumers
Andrew Gilmore on May 22, 2008 9:38 AM ET

[JURIST] Drug companies are harming consumers by using "pay-for-delay" legal agreements to keep cheaper generic prescription drugs off the market, according to a report [PDF text; press release] released Wednesday by the US Federal Trade Commission (FTC) [official website]. The report compares legal documents submitted to the FTC by drug manufacturers in fiscal year 2007 with those submitted since fiscal year 2004, finding an increasing use of "pay-for-delay" agreements between branded and generic drug manufacturers. AP has more.

"Pay-for-delay" agreements involve deals by which generic drug manufacturers seeking to market a generic version of a branded product are compensated by the branded drug manufacturer in return for delaying the entry of the generic product onto the open pharmaceutical market. In January, FTC Commissioner Jon Leibowitz [official profile] testified [transcript] before the Senate Judiciary Committee in support of Congressional legislation to ban the practice, saying that it may violate antitrust [JURIST news archive] law. In 2003, Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 [PDF text] which requires that certain legal agreements between branded and generic drug manufacturers executed after January 7, 2004 be submitted [FTC backgrounder, PDF] to the FTC for review within ten days of execution.






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Federal appeals court upholds challenge to 'Don't Ask, Don't Tell' military policy
Patrick Porter on May 22, 2008 8:34 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [PDF text] Wednesday that the US military cannot dismiss a soldier on the basis of sexual orientation alone, departing from the reasoning used to defeat similar cases in the past [JURIST report]. The court's holding may signal a significant new challenge to the military's long-standing "Don't Ask, Don't Tell" policy [statute text; HRC backgrounder]. The ruling reinstates a lawsuit brought by a US Air Force major who was discharged when officials found out she had been in a relationship with another woman; a lower court had dismissed the case, finding that the Supreme Court's holding in Lawrence v. Texas [opinion; Duke Law case backgrounder] did not render "Don't Ask, Don't Tell" invalid. The appeals court disagreed, holding that the military must demonstrate that the specific dismissal was necessary to further an important government interest. AP has more. AFP has additional coverage.

The appeals court relied on Lawrence v. Texas in finding that consenting adults have a right to decide on private matters relating to sexual activity, and one of the three judges on the panel argued that the current decision did not go far enough to protect that "fundamental" right. Military discharges for sexual orientation have decreased [Washington Post file report] in recent years, possibly due to lax enforcement of the policy during personnel shortages. Lawmakers in February 2005 cited a Government Accountability Office report [text, PDF] to criticize the policy [JURIST report] and its negative effect on recruitment and retention of military personnel.






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