GDI 15 - Clapper Negative

7/24/2019 GDI 15 - Clapper Negative

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GDI 15 Clapper Neg


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Judicial Review Advantage


3/18

Alt Causes 1NC

Summers decision undermine environmental standingEric Bier 1!, Eric Biber is a specialist in conservation biology, land-use planning and public lands law,"Did the Supreme Court just shut the courthouse door on environmental plaintiffs," !--#$!, %o

&ublication, http'((legal-planet)org(#$!($!($(did-the-supreme-court-just-shut-the-courthouse-door-on-environmental-plaintiffs(, D*+' --#$, y#.

Clapper isin fact very similar to another recent Supreme Court case that concluded that environmental

plaintiffs did not have standing' Summers v) Earth /sland /nstitute ) +nd it0s that similarity that / thin. gives a clue

about how one can limit the scope of the language in Clapper) 1he plaintiffs in Summers sought to challenge 2orestService regulations that they argued improperly restricted public notice and comment for certain forest

development activities) 1he Court concluded that the plaintiffs in Summers did not have standing

because they had not identified a specific development project that would cause them injury 3e)g), bydiminishing their aesthetic enjoyment of the forest4 and that had also gone through the processestablished by the challenged regulations) 1he plaintiffs in Summers 3and the dissent, per 5ustice Breyer4 objected thatgiven the sheer number of projects that did proceed under the regulations, and the regular and continuous use of the %ational2orests by the plaintiffs, it did not ma.e sense to deny standing in the case, since it was inevitable 3or at least highly li.ely4 that atsome point one of the plaintiffs would suffer injury from the regulations)

1he plaintiffs0 standing argument in Summers is, in fact,very similar to the plaintiffs0 argument in Clapper )1he plaintiffs argued that given their regular and consistent communications with individuals that have previously been subject to6S government surveillance, it was inevitable 3or at least highly li.ely4 that at some point their communications would be subject to

surveillance pursuant to Section 77a of 2/S+) +s with Summers, the Court0s response 38uoted above4 is that untiland unless the plaintiffs can point to a specific piece of communications that they can show was subject to

government surveillance pursuant to 77a, there is no standing to sue ) 3*f course, a major difference betweenSummers and this case is that in Summers, plaintiffs li.ely would be able to meet that standard at some point in time by waiting forthe right project, while in Clapper because the surveillance is secret, it is going to be very difficult, perhaps impossible, for plaintiffsto ever meet the Court0s standing re8uirements)4


4/18

S" Solves Standing 1NC

S#uo solves and t$e passage o% t$e plan $as little e%%ect & 'oot note %ive o% clapper impliest$at t$e standard s$ould e applied %le(il) and t$at it*s application is a small s$i%t+cDowell ,-1.

3+manda 9cDowell, :awyer, 1;E /9&+C1 *2 C:+&&E< =) +9%ES1> /%1E


5/18

S" Solves Standing ,NC

Clapper v Amnest) no impact on standing

/ost and 0oward Data +anagers at 'res$%ields Bruc2$aus

Deringer 3S 44/ ,-15ADana and Cheryl, 2ebruary #th, &rivacy +dvisor, Clapper v) +mnestyKs /mpact on the ;arm 1hreshold,Fhttps'((privacyassociation)org(news(a(clapper-v-amnestys-impact-on-the-harm-threshold(, ((D*+, D:

%otwithstanding the above cases, Clapper has not completely sounded the death .nell for data breach lawsuits

when allegations of future harm are alleged ) Even when plaintiffs were able to establish +rticle /// standing, however,many of their claims were still dismissed based on their failure to plead actual damages)/n re' Sony ?aming %etwor.s and CustomerData Security Breach :itigation 35an) #$4, for eGample, a class-action arising out of a criminal intrusion into a computer networ.system used to provide online gaming and /nternet connectivity via an individual0s gaming console or personal computer,F only oneof the named plaintiffs alleged that he eGperienced unauthoriLed charges as a result of the intrusion) et, at other instances the majority goes to great lengths toreconcile its decision with establishedprecedent, including prior cases that endorsed a more liberal standing in8uiry)

+s a result, Clapper is subject to several plausible interpretations)
https://privacyassociation.org/news/a/clapper-v-amnestys-impact-on-the-harm-threshold/http://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdfhttp://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdfhttp://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdfhttps://privacyassociation.org/news/a/clapper-v-amnestys-impact-on-the-harm-threshold/http://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdfhttp://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdf


6/18

S" Solves nviro 4itigations 1NC

Clapper doesn*t preclude environmental litigations&&&t$e standing re#uirement doesn*tappl) to most casesEric Bier 1!, Eric Biber is a specialist in conservation biology, land-use planning and public lands law,

"Did the Supreme Court just shut the courthouse door on environmental plaintiffs," !--#$!, %o&ublication, http'((legal-planet)org(#$!($!($(did-the-supreme-court-just-shut-the-courthouse-door-on-environmental-plaintiffs(, D*+' --#$, y#.%ote that read this way, Clapper0s main impact on environmental law cases will be to force plaintiffs to focus on challengingindividual projects, rather than agency regulations or policy statements 3or at least, when ma.ing those challenges to regulations orpolicy statements, plaintiffs will have to allege and show with specificity how an application of those regulations or policy statements

are affecting them without an intermediate government action or step ta.ing place4) +s such, this standing rule may put

environmental groups with limited resources at a strategic disadvantage,but / don0t thin. it will

absolutely foreclose many challenges)

+nd read this way, Clapper shouldn0t foreclose challenges in the .inds of casesthat / discussed above) /n all of

those cases, plaintiffs are challenging a specific government action that theyalleged had a particular

impact on themN a government regulatory program that would allow more emissions ofharmful

chemicals, or a permit that would result in a particular development project that would impact a

particular location) /n other words, the uncertainty that both Summers and Clapper find troublesome is whether a generalgovernment program will, in fact, actually result in an application that will affect the plaintiffs interests) But plaintiffs should

still be able to rely on claims about probabilistic injury once they can show that there is such a particular

application of the general program)


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S" Solves nviro 4itigations ,NC

'ootnote 5 proves&&&t$ere*s no impact on environmental litigationsEric Bier 1!, Eric Biber is a specialist in conservation biology, land-use planning and public lands law,"Did the Supreme Court just shut the courthouse door on environmental plaintiffs," !--#$!, %o

&ublication, http'((legal-planet)org(#$!($!($(did-the-supreme-court-just-shut-the-courthouse-door-on-environmental-plaintiffs(, D*+' --#$, y#.

2ootnote in the majority opinion seems to supportthis distinction'

*ur cases do not uniformly re8uire plaintiffs to demonstrate that it is literally certain that the harms they

identify will come about) /n some instances,we have found standing based on a Msubstantial ris.0 that the

harm will occur ,which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm) Butto the eGtent that the Msubstantial ris.0 standard is relevant and is distinct from the Mclearly impending0 Asic N the court appears tohave forgotten a find and replace hereO re8uirement, respondents fall short of even that standard, in light of the attenuated chain ofinferences to find harm here) /n addition, plaintiffs bear the burden of pleading and proving concrete facts showing that thedefendant0s actual action has caused the substantial ris. of harm) &laintiffs cannot rely on speculation about Mthe unfettered choicesmade by independent actors not before the court)0F Afn) , p) -HP citations omittedP emphasis added

%ote that this interpretation is a way to reconcile the language in Clapper with broad language in a priorSupreme Court case, 2riends of the Earth v) :aidlaw Environmental Services) /n that case, the Courtconcluded that environmental plaintiffs had standing to challenge a company0s illegal discharge of pollution into a river the plaintiffs

used for recreation, even though plaintiffs had not shown that there would be any ecological or environmental harm from thedischarge) 1heir fear of harm from the discharge was enough)+gain, ifyou read Clapper as focusing on the

.inds of government action challenged, :aidlaw is consistent with ClapperN after all, in :aidlaw the plaintiffswere challenging particular, specific actions by the company)


8/18

No Gloal +odeling 1NC

Can*t solve environmental leaders$ip past alt causes6ictor law professor at StanfordKs &rogram on Energy and Sustainable Development and adjunct seniorfellow at the Council on 2oreign


9/18

No Gloal +odeling ,NC

3S signals are dismissed:en2o 1!A9icah, Council on 2oreign


10/18

Democrac) 1NC

Democratic peace t$eor) %ails;democratic nations are more li2el) to go to war4arison


11/18

Democrac) ,NC

Democrac) doesn*t solve war allows nationalism to rule government c$oices

Rosato >!Sebastian our :iberty)http'((www)fff)org(freedom(fd$H$e)asp

Democracy is no guarantee of peace 5ust as democracy is no guarantee of freedom, neither is it a guarantee ofpeace) /t is true that the relatively free democratic states are less li.ely to fight each other) But democratically electedregimes fre8uently attac. wea. nondemocracies) +s /van Eland eGplains in 1he Empire ;as %o Clothes, 1he three

greatest imperial powers of the nineteenth and twentieth centuries J 2rance, ?reat Britain, and the6nited States J were democracies)F /ndeed, in the #$th century, the 6nited States attac.ed more countriesthan any other nation)Since the end of @orld @ar //, the 6nited States has engaged in more than #$$ armed conflicts, .illinghundreds of thousands of civilians J waging wars or military actions in Iorea, =ietnam, &anama, ?renada, Colombia, ;aiti, /ra8,

+fghanistan, Serbia, and Bosnia) /n nearly all of these conflicts, there was no threat to the 6nited States)/t is clear from thehistory of Britain, 2rance, ?ermany, and the 6nited States, that democracy is no guarantee of peace)

Democratic peace t$eor) is a %arce

4a)ne >Christopher, &rofessor T 1R +U9, +merican Empire' + Debate, pg)

@ilsonian ideology drives the +merican Empire because its proponents posit that the 6nited States must use its military power toeGtend democracy abroad) ;ere, the ideology of Empire rests on assumptions that are not supported by the facts) *ne reason thearchitects of Empire champion democracy promotion is because they believe in the so-called democratic peace theory, which holdsthat democratic states do not fight other democracies) *r as &resident ?eorge @) Bush put it with his customary elo8uence,

"democracies donKt warP democracies are peaceful)"!H 1he democratic peace theory is the probably the mostoverhyped and undersupported "theory" ever to be concocted by +merican academics) /n fact, it is not atheory at all)


12/18

nvironment 1NC

No enviro impact

Broo2 1!Barry Broo., &rofessor at the 6niversity of +delaide, leading environmental scientist, holding the Sir

;ubert @il.ins Chair of Climate Change at the School of Earth and Environmental Sciences, and is alsoDirector of Climate Science at the 6niversity of +delaide0s Environment /nstitute, author of ! boo.s andover #$ scholarly articles, Corey Bradshaw is an +ssociate &rofessor at the 6niversity of +delaide and a

joint appointee at the South +ustralian


13/18

nvironment ,NC

nvironment resilientareiva et al 1, Chief Scientist and =ice &resident, 1he %ature Conservancy3&eter, 9ichelle 9arvier&&professor and department chair of Environment Studies and Sciences at Santa Clara 6niversity,


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cooling period in EarthKs history, developing a highly specialiLed carnivorous diet focused on seals) 1hus, the fate of polarbears depends on two opposing trends -- the decline of sea ice and the potential increase of energy-rich prey) 1he history of lifeon Earth is of species evolving to ta.e advantage of new environments only to be at ris. when theenvironment changes again)V1he wilderness ideal presupposes that there are parts of the worlduntouched by human.ind, but today it is impossible to find a place on Earth that is unmar.ed by humanactivity) 1he truth is humans have been impacting their natural environment for centuries) 1he wilderness sobeloved by conservationists -- places "untrammeled by man"! -- never eGisted, at least not in the last thousand years, and arguably

even longer)

nvironment doesnt cause e(tinctionScience Dail) 1! Science Daily, Citing research by Barry Broo., &rofessor at the 6niversity of +delaide,leading environmental scientist, holding the Sir ;ubert @il.ins Chair of Climate Change at the School ofEarth and Environmental Sciences, and is also Director of Climate Science at the 6niversity of +delaide0sEnvironment /nstitute, author of ! boo.s and over #$ scholarly articles, 2ebruary #7, #$!, "?lobal1ipping &oint %ot Bac.ed by Science, EGperts +rgue",http'((www)sciencedaily)com(releases(#$!($#(!$##7$!#)htm

+ group of international ecological scientistsled by the 6niversity of +delaide have rejected a doomsday-li.e scenario of sudden ,

irreversible change to EarthKs ecology) /n a paper published 2eb) #7 in the journal 1rends in Ecology and Evolu tion, the scientists from +ustralia, the 6nited States and the 6nited

Iingdom argue that global-scale ecological tipping points are unli.ely and that ecological change over large areas

seem to follow a more gradual, smooth pattern) 1his opposes recent efforts to define Kplanetary tippingpointsK critical levels of biodiversity loss or land-use change that would have global effect with important implications for science and policy-ma.ers) " 1his is good news

because it says that we might avoid the doom-and-gloom scenario of abrupt, irreversible change," says&rofessorBarry Broo., lead author of the paper and Director of Climate Science at the 6niversity of +delaide) "+ focus on planetary tipping points may both distract from the vast ecologicaltransformations that have already occurred, and lead to unjustified fatalism about the catastrophic effects of tipping points) "+n emphasis on a point of no return is not particularly helpful for bringing about theconservation action we need) @e must continue to see. to reduce our impacts on the global ecology without undue attention on trying to avoid arbitrary thresholds)" + tipping point occurs when an ecosystemattribute such as species abundance or carbon se8uestration responds rapidly and possibly irreversibly to a human pressure li.e land-use change or climate change) 9any local and regional-level ecosystems, suchas la.es and grasslands, are .nown to behave this way) + planetary tipping point, the authors suggest, could theoretically occur if ecosystems across Earth respond in similar ways to the same human pressures, orif there are strong connections between continents that allow for rapid diffusion of impacts across the planet) "1hese criteria, however, are very unli.ely to be met in the real world," says &rofessor Broo.)

"2irst, ecosystems on different continents are not strongly connected ) Second, the responses of

ecosystems to human pressures li.e climate change or land-use change depend on local circumstancesand will therefore differ between localities)" 1he scientists eGamined four principal drivers of terrestrialecosystem change climate change, land-use change, habitat fragmentation and biodiversity loss and

found they were unli.ely to induce global tipping points)

nvironment improving across t$e oard

0a)ward 11ASteven &, #$ +lmanac of Environmental 1rendsVby Steven 2) ;aywardV+pril #$V/SB%-!' 7--!#H--, http'((www)pacificresearch)org(doc:ib(#$$Qalmanac#$)pdf

Wuic.'@hat0sthe largestpublic-policy success story in +merican society over the last generation 1he dramatic reduction in thecrime rate, which has helped ma.e major +merican cities livable again *r welfare reform, which saw the nation0s welfare rolls fall by more than half

since the early $s Both of these accomplishments have received wide media attention) >et theright answermight well be theenvironment) +s 2igure displays, the reduction in air pollutionis comparable in magnitude to the reduction in the welfare rolls, and greaterthan the reduction in the crime rateJboth celebrated as major public-policy success stories of the last two decades)+ggregateemissionsof thesiG criteriaF pollutants regulated under the Clean +ir +ct have fallen by ! percentsince $, while the proportion of the populationreceiving welfare assistance is down 7 percent from $, and the crime rate is only H) percent below its $ level) 3+nd as we shall see, thisaggregate nationwide reduction in emissions greatly understates the actual improvement in ambient air 8uality in the areas with the worst levels of air

pollution)4 9easures for water 8uality,toGic-chemical eGposure, soil erosion, forest growth, wetlands, andseveral other areas of environmental concern show similar positive trends, as this+lmanac reports) 1o paraphrase9ar. 1wain, reports of the demise of the environment have been greatly eGaggerated) 9oreover, there is good reason to

believe that these .inds of improvements will be eGperienced in the rest of the world over the course ofthis century)@e0ll eGaminesome of the early evidence that this is already starting to occur)1he chief drivers ofenvironmental improvement are economicgrowth, constantly increasing resource efficiency, technologicalinnovation in pollution control, and thedeepening of environmentalvalues among the +merican publicthat have translatedto changed behavior and consumer preferences) ?overnment regulation has played a vital role, to besure, but in the grand scheme of things regulation can be understood as a lagging indicator, often achieving results at needlessly high cost, andsometimes failing completely) @ere it not for rising affluence and technological innovation, regulation would have much the same effect as Iing Canutecommanding the tides) /%1


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about the environment has been pessimistic, with large majoritiesJsometimes as high as $ percentJtelling pollsters that they thin. environmental 8uality in the 6nited States is getting worse instead of

better, and will continue to get worse in the future) *ne reason for this state of opinion is media coverage,which emphasiLes bad news and crisisP another reason is environmental advocacy groups, for whom goodnews is bad news) +s the cliche goes, you can0t sell many newspapers with headlines about airplanes landing safely, or about an oil tan.erdoc.ing without a spill) Similarly, slow, long-term trends don0t ma.e for good headline copy)/%1


16/18

No (ecutive verreac$ 1NC

+ultiple c$ec2s prevent (ecutive overreac$& t$eir impact is a m)t$5ohnEoo F, Emanuel S) ;eller &rofessor of :aw T 6C-Ber.eley :aw, visiting scholar T the +mericanEnterprise /nstitute, former 2ulbright Distinguished Chair in :aw T the 6niversity of 1rento, served as a

deputy assistant attorney general in the *ffice of :egal Council at the 6)S) Department of 5ustice between#$$ and #$$!, received his 5)D) from >ale and his undergraduate degree from ;arvard, Crisis andCommand,F E-Boo.

+ second lesson of this boo. is that the notion of an unchec.ed eGecutive, wielding dictatorial powers to plunge the

nation into disaster, is a myth born of =ietnam and @atergate) Congresses have always possessed ample

ability to stalemate and chec. an eGecutive run amo.) Congress regularly ignores eGecutive proposals for

legislation, rejects nominees, and overrides vetoes) /t can use its power over legislation, funding, andoversight to eGercise significant control over the administrative state) 1here would be no agencies, nodelegated powers, and no rule-ma.ing without CongressKs basic decisions to create the federal

bureaucracy) /t can use these authorities even at the Lenith of presidential power' foreign affairs)

Congress can cut off war funding, shrin. the military, stop economic aid, and bloc. treaties) /t used itssole control of the purse to limit the 9eGican-+merican @ar and to end the =ietnam conflict, for eGample)


17/18

No (ecutive verreac$ ,NC

8)rann) never materialies5ohnEoo F, Emanuel S) ;eller &rofessor of :aw T 6C-Ber.eley :aw, visiting scholar T the +mericanEnterprise /nstitute, former 2ulbright Distinguished Chair in :aw T the 6niversity of 1rento, served as a

deputy assistant attorney general in the *ffice of :egal Council at the 6)S) Department of 5ustice between#$$ and #$$!, received his 5)D) from >ale and his undergraduate degree from ;arvard, Crisis andCommand,F Boo., p) G-Gi

1his boo. is also written out of respect for Congress as well as the &resident) / have had the honor to serve as general counsel of the Senate 5udiciary Committee under thechairmanship of Senator *rrin ?) ;atch of 6tah, a good and decent man as well as a strward of the Senate) / have the greatest respect for the awesome powers of Congress andthe ways in which Congress and the broader political system can chec. any Chief EGecutive) /t was Congress that forced the resignation of et, they were not dictators) 1hey used their eGecutive powers to the benefit of the nation) *nce the emergency subsided,presidential power recededand often went into remission under long periods of congressional leadership)@hen chief eGecutives misused

their powers, the political system bloc.ed or eventually ejected the &resident) %o dictator has ever ruled

in the 6nited States, yet critics of contemporary presidential power wish to wor. radical change in current practice out of fear of impending dictatorship)

+ultiple %actors solve e(ec overreac$/osner and 6ermeule F Y 6niversity of Chicago N :aw School +%D YY;arvard 6niversity N ;arvard:aw School, Eric and +drian, 1yrannophobiaF (, SS


18/18

strengthen democracy and ma.e a collapse into authoritarian rule nearly impossible ) 9odern presidents

are substantially constrained, not by old statutes or even by Congress and the courts, butby the tyranny of public and

3especially4 elite opinion) Every action is scrutiniLed, lea.s from eGecutive officials come in a torrent,

journalists are professionally hostile, and potential abuses are 8uic.ly brought to light) 1he modernpresidency is a fishbowl, in large part because the costs of ac8uiring political information have fallen steadily in the modern economy, and

because a wealthy, educated and leisured population has the time to monitor presidential action and ta.es

an interest in doing so) 1his picture implies that modern presidents are both more accountable than their predecessors and more responsiveto gusts of elite sentiment and mass opinion, but they are not dictators in any conventional sense) 9ore tentatively, we also suggest that therelaGation of legal chec.s may itself have contributed to the growth of the political chec.s, rather than bothfactors simply being the common result of a compleG modern economy) *n this hypothesis, the administrative and presidential state of the %ew Dealand later has, despite all its inefficiencies, plausibly supplied efficiency-enhancing regulation, political stability, and a measure of redistribution, andthese policies have both added to national economic and cultural capital and dampened political conflict) 1he administrative state has thus helped tocreate a wealthy, educated population and a super-educated elite whose members have the leisure and affluence to care about matters such as civilliberties, who are politically engaged to a fault, and who help to chec. eGecutive abuses) @hile the direct effects of wealth, education and other factorson the stability of democracy are clear in comparative perspective, there is more dispute about the overall economic effects of regulation and theadministrative state,$ so we offer this as a hypothesis for further research)

Documents

GDI 15 - Clapper Negative