10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Friday, December 26, 2014

Lima Agreement, Return from China, Cruden Confirmation, Oil Spill in Negev Desert, Letter to Post (by Bob Percival)

On December 15 representations from more than 190 nations meeting in Lima, Peru reached agreement on a blueprint for next year’s Paris COP-21 where it is expected that a new global climate change treaty will be adopted.  The agreement was reached only after the COP was extended for two days and its language was watered down somewhat.  But many observers believe that it is better than nothing and paves the way for more significant action in Paris next year.  A copy of the agreement “Further Advancing the Durban Platform” is available online at: http://unfccc.int/files/meetings/lima_dec_2014/in-session/application/pdf/cpl14.pdf

I returned from China on December 20.  On December 15 I gave a talk at Shanghai Institute of Politics and Law on “Using Law to Protect the Environment.”  Later in the week Professor Zhao and I had lunch with one of her former students who is now an official with the Shanghai Environmental Protection Board (EPB).  On December 17 Professor Shiguo Liu from Fudan University College of Law hosted me for dinner.

The environmental group Green Stone, who I visited in Nanjing last August during my field trip with the students from my Vermont class, caused quite a stir by posting the names of companies with excessive emissions.  They used data from the new reporting requirements that were mandated by the Chinese government last January.  Green Stone, which initially was founded by university students interested in getting students more active on environmental issues, demanded to know why the local EPBs were not taking enforcement action against these companies.  The Nanjing EPB apparently responded on social media that it would investigate.

Just before adjourning on Tuesday December 16, the U.S. Senate by voice vote confirmed Environmental Law Institute (ELI) President John Cruden to be the Assistant Attorney General for Environment and Natural Resources at the Department of Justice.  When Cruden was nominated by President Obama last February nearly 100 environmental law professors signed on to a letter to the Senate Judiciary Committee that I wrote supporting his confirmation. On Monday December 22, ELI held a farewell party for Cruden in the Presidential Suite at the Shoreham Hotel.  At this party I presented John with a resolution of appreciation from the Executive Committee of the American College of Environmental Lawyers (ACOEL).  Noting that the room in which the party was being held was where the Beatles had stayed during their initial visit to D.C., I called John the true “rock star” of environmental law.

Israel is scrambling to clean up a devastating oil spill in the ecologically fragile environment of the Negev Desert.  More than five million liters of crude oil spilled from the Trans Israel Pipeline operated by the Eiliat Ashkelon Pipeline Company (EAPC) earlier this month.  More than 80 people, mostly on the Jordanian side of the Israel/Jordan border, were treated for exposure to the oil and more 13,000 tons of contaminated soil were hauled away. Cleanup crews are working to prevent the spill from reaching the Gulf of Eliat. An Eliat resident has filed a class action lawsuit against EAPC seeking $55 million in damages and cleanup costs.  During spring break in March I will be taking a multi-disciplinary group of students to the Negev as part of a project to work on greywater recycling funded by a global public health grant.

On December 20 the Washington Post published a letter to the editor that I wrote, responding to Congressman Andy Harris’s defense of Congress trying to block D.C.’s voter initiative to legalize marijuana.  My letter is available online at: http://www.mapinc.org/drugnews/v14/n932/a05.html.  It reads as follows:  “How courageous of Republican Reps.  Andy Harris ( Md.  ) and Joe Pitts ( Pa.  ) to answer ‘head-on’ charges that it is hypocritical for proponents of self-government and democracy to overrule the District's marijuana initiative ["Congress's duty trumps D.C.'s vote," op-ed, Dec.  14].  The enormous flaw in their argument that federal interests should trump the will of District residents is that, unlike Mr.  Harris and Mr.  Pitts's constituents in Maryland and Pennsylvania, D.C.  residents have no voice in defining those federal interests because we have no voting representation in Congress. 

If they were men of courage and principle, they would follow in the footsteps of such Republicans as President Dwight D.  Eisenhower and Sen.  Prescott Bush ( father of one Republican president and grandfather of another ), who helped win ratification of the 23rd Amendment giving D.C.  residents the right to vote in presidential elections. d    Granting the District voting representation in Congress would make the incoming Republican majority truly a party of principle.  Until that happens, it is illegitimate for Mr.  Harris and Mr.  Pitts to claim that the will of D.C.  residents should be trumped by a federal interest we are not allowed a voice in defining.” 

In a few hours I am leaving for a National Geographic expedition in Antarctica.  My wife Barbara and I are flying to Buenos Aires today.  On Sunday we will board a charter flight to Ushaia, a place we visited on our honeymoon to Patagonia 30 years ago.  We then will board the Linblad Orion which will sail to the Falkland Islands, South Georgia Island, and then on to Antarctica.  Barbara and I will be celebrating our 30th wedding anniversary on South Georgia Island, where Ernest Shackleton is buried, on January 5.  Before returning to the U.S. on January 24, we also will visit Easter Island, a place I visited in 1973 while sailing around the world prior to starting law school. 

Thursday, December 25, 2014

Dec. 13 Blog Post: China Trip, Wall Street Journal Letter, Oil Price Plunge (by Bob Percival)

I posted the following on my parallel blog (globalenvironmentallaw.com) on Saturday Dec. 13.  I was unable to post on this blog at the time because I was in China where the government's "great firewall" blocks Blogspot, which is the reason I maintain two parallel blogs.

Last week I flew to Zhengzhou, China, capital of Henan Province, to give some lectures on environmental law.  Prior to leaving Shanghai I participated in two classes at New York University’s Shanghai Center in Pudong on December 8.  The classes included both students from NYU and from East China Normal University.  One class focused on environmental law and the other on cultural influences on legal systems.  Students in each class are engaged in some really interesting research projects that explore comparative aspects of law in China and the U.S.

When I landed at the Zhengzhou Airport on December 9 I was greeted by Professor Xiao Qian Gang, one of the fathers of Chinese water and natural resources law who was involved in drafting landmark legislation on these subjects during the 1970s.  Professor Xiao is now 80 years old, but he has amazing energy and we spent three days exploring Henan Province together.  On the way into Zhengzhou we stopped at the Foxconn plant near the airport where Apple’s iPhones are made.  The complex is gigantic with eight enormous buildings covering the size of a small city.  My hosts thought that 100,000 workers work in the complex, but the plant personnel said that it was closer to 200,000.  During my lectures, I told my audiences that my iPhone was excited to return to the place of its birth.

On the evening of December 9 I gave a lecture to approximately 100 law students at Zhengzhou University.  The law school emphasizes environmental law and one of their professors had used my casebook while studying in the United States.  The students treated me like a rock star, asking me to pose for photos with them and taking selfies (‘su pi”s in Chinese) with me - a few even asked me for my autograph after the lecture.  

On December 10 my hosts took me to the Shaolin Temple, the birthplace of martial arts, which is located about a 90-minute drive from Zhengzhou at Shaoshi Mountain in Dengfeng.  It had snowed lightly the night before and a sheet of ice covered the trails.  The monastery mobilized the martial arts students to remove the ice with sticks and brooms to make hiking less periolous. We hiked a considerable distance exploring the sprawling complex and watched a kung fu demonstration.  We then drove to the town of LuYuan for lunch followed by a trip to the spectacular Longmen Grottos.  The Longmen Grottos are where approximately 20,000 buddha statues have been carved into rock cliffs along the banks of the Yi River.  We hiked up into the cliffs to see the carvings.  Photos from the trip will be placed in the Photo Album portion of this website shortly.

On December 11 we traveled to the town of Kaifeng, the capital of China during the Song Dynasty in east-central Henan Province.  Kaifeng is believed to have been the largest city in the world exactly 1000 years ago.  In the morning we visited Millenium City Park and the Xuande Palace, home of the Chinese emperors during the Song Dynasty.   After lunch we visited a Song Dynasty theme park where we witnessed the reenacted of an ancient battle with warriors, including a female general, on horseback.

On Friday December 12 I gave a 90-minute lecture on environmental law at the Henan University of Economics and Law.  There were approximately 250 students in the audience.  Most of them did not speak English, but the translation was excellent.  During the question and answer session one student stood up and asked a question that she had written out in English.  When I complimented her in Chinese and said I wish my Chinese was as good as her English, the students all applauded her.  Her question concerned the perceived tradeoff between economic growth and environmental regulation in China.  In response I cited several examples of instances where economists had forecast doom from environmental regulation only to be proven wrong.  While it its true that regulation creates winners and losers and the coal industry is losing throughout the world right now, renewable energy projects are a source of economic opportunity. In my discussions with Chinese students it seems clear that China’s environmental problems are a big concern to them, but they seem encouraged by the Chinese governments willingness to endorse the new U.S./China climate agreement.

I flew back to Shanghai on Friday night.  On Saturday morning December 13 I spoke about the U.S. Supreme Court to a class of Chinese lawyers who are enrolled in Emory University’s Comparative Law Program at Shanghai Jiaotong University.  The students in the class, most of whom work for law firms in Shanghai, will be spending the spring semester at Emory in Atlanta. Many of them then plan to stay in Atlanta to receive the LLM degree from Emory.  After the class the students took the professor, Dan Guttman, and I out to lunch at a nearby restaurant.

In Lima, Peru the Conference of the Parties to the UN Framework Convention on Climate Change has gone into overtime as negotiators struggle to bridge a divide over loss and damage and contributions to a green climate fund to compensate developing countries.  The contours of a likely agreement that could be signed next year in Paris have become clear and they look much like an extension of the Copenhagen Accord that relies on voluntary commitments from each country.  

David Doniger of NRDC and I had letters to the editor published in the Wall Street Journal of December 13-14.  Our letters criticized Harvard Law professor Laurence Tribe’s claim on behalf of Peabody Energy that EPA’s Clean Power Plan is illegal and unconstitutional.  My letter notes that Tribe frequently has made extreme constitutional claims against EPA on behalf of industry groups, but no court has agreed with him.  The letters are available online at: http://www.wsj.com/articles/prof-tribe-may-not-get-very-far-on-his-epa-brief-letters-to-the-editor-1418421985.

In other news last week: 

On December 11 the Supreme Court of Canada heard oral argument on the question whether plaintiffs can enforce a $9 billion judgment by an Ecuadoran court against Chevron for oil pollution in Ecuador.  

An oil spill in a protected wetlands area in Bangladesh that occurred when a ship sunk has led environmentalists to criticize the fact that commercial ship traffic is allowed at all in the area.  

China opened a key section of its massive south-to-north water project running 860 miles from the Danjiangkou Reservoir in Hubei Province to supply 9.5 billion cubic meters of water a year to northern China.  Water from the first stage of the $80 billion project was barely usable when it reached Tianjin last year because it had picked up so many pollutants while traveling north. 

Global oil prices continued to collapse last week with crude oil prices plunging below $60 a barrel.  Chinese authorities are seizing the opportunity to cut fuel subsidies, a move that other countries should emulate.  If the petroleum price stabilization tax that I advocated during my presentation to the IUCN Academy of Environmental Law Colloquium last summer in Tarragona had been in effect, plunging oil prices would not harm renewable energy projects, but rather would only cut government deficits.

The budget deal that the U.S. Congress approved last week apparently bars the Export-Import Bank from eliminating loan guarantees for fossil fuel projects in other countries.

Tomorrow morning I am giving a lecture at the Shanghai College of Politics and Law.  I will be spending a good part of the week grading my Environmental Law exams, which should arrive by Fedex tomorrow.  I fly back to Beijing on Friday and then back to Washington on Saturday.

Dec. 6 Blog Post: China Trip, Lima Climate Talks, EPA Ozone Proposal (by Bob Percival)

The following was posted on my globalenvironmentallaw.com site on Saturday Dec. 6.  I was unable to post on this blog because the Chinese government's "great firewall" blocks Blogspot.

I have been in China for the past week where I am finishing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  I arrived in Beijing on Saturday to some of the worst air pollution I had ever seen in China.  It was not even possible to see Terminal 3 from the runway and it only appeared when the plane pulled into the gate.  Rains Saturday night combined with extraordinarily high winds (which killed some people in Beijing when materials blew off a building under construction) cleared out the air on Sunday.  On Monday I flew to Shanghai where I am staying at the Faculty Club on Shanghai Jiaotong’s Xuhai campus where I have a temporary office at the KoGuan Law School.

On Wednesday Dec. 3 I delivered a lecture on the topic “Is Divided Government Dysfunctional?” The lecture was held at the suburban undergraduate campus of Shanghai Jiaotong.  My hosts had asked me as a constitutional law professor to address a broader topic than environmental law in order to appeal to students from several departments.  It seemed to work because I had a large audience of students from many disciplines, including several electrical engineering students.  In my lecture I reviewed the history of divided government in the U.S.  I noted that, counting the new Congress, the same political party will have controlled the Presidency and both houses of Congress only twice (1993-1995 and 2009-2011) in the 18 most recent sessions of Congress and only four times (adding the post-Watergate Congresses of 1977-1981) in the last 24.  I then reviewed the history of government shutdowns and budget battles between the President and Congress as a possible preview to the kinds of battles that will occur between President Obama and the new Republican Congress.  I raised the question whether some of the problems enforcing China’s laws might be due to the fact that they are not the product of the kind of hard fought compromises with the regulated community. After lecturing for 90 minutes, I had a lively discussion with the students during a half hour question and answer session.  After the session was over a large group of students approached me and we spoke for another 30 minutes.  It is such a privilege to get to engage with bright young Chinese students who are concerned about the future of government.

On Friday Dec. 5 I visited the DeTao Academy on the campus of the Shanghai Institute of Visual Arts in the southwest suburbs of Shanghai. I have been appointed as one of DeTao’s “masters,” the only one who specializes in law.  I contributed copies of my Environmental Regulation casebook and Statutory and Case Supplement to the DeTao Library and was given briefings on various environmental projects DeTao is pursuing.  I met with the staff of DeTao master Kevin Erwin who are working on a large wetlands restoration project on Hainan Island.  They noted that China does not have a national wetlands protect law and thus there is less impetus for wetlands mitigation and banking projects in China than in the U.S.  I also met with officials from DeTao’s Institute for Green Investment who are working with DeTao master Bob Costanza to develop the first “natural capital balance sheet” for the mayor of Sanya, the principal tourist destination in Hainan Province.

This week the nations of the world have been meeting in Lima, Peru for the 20th Conference of the Parties to the UN Framework Convention on Climate Change and the 10th Meeting of the Parties to the Kyoto Protocol (COP-20/CMP-10).  It is hoped that this conference will lay the groundwork for a new global agreement in Paris next year to control emissions of greenhouse gases (GHG).  Here in China there is considerable discussion of the historic U.S./China climate agreement that was announced last month.  Many note that China’s commitment to cap its GHG emissions by 2030 reflects what many Chinese officials had been hinting at over the years, though they acknowledge that China’s emissions currently are rising so rapidly that it will take dramatic changes to achieve the goal. They do give the U.S. credit for pushing environmental initiatives (specifically the phaseout of HFCs) at President Obama’s first summit with Chinese President Xi Jinping in June 2013.  This and commitments for technological collaboration on carbon capture helped cement the new agreement. 

On November 25 EPA proposed new regulations to lower the national ambient air quality standard (NAAQS) for ground-level ozone.  The agency proposed to lower the current standard for ozone from 75 parts per billion (ppb) to a range between 65 and 70 ppb.  Former EPA Administrator Lisa Jackson had sought to make a similar proposal in 2011, but it was blocked by opposition from President Obama and the Office of Management and Budget.  EPA is required to review and revise, if necessary, the NAAQS every five years, a deadline that expired in 2013 for the ozone NAAQS.  The agency released its ozone proposal shortly in advance of a court-ordered deadline.

On Saturday I was presented with copies of my new treatise on Environmental Law that has been published in Chinese by Law Press of China.  I began work on the treatise as a project for the Federal Judicial Center in the U.S., a project that is still incomplete.

Today I will participate in two classes for NYU’s Shanghai program. Tomorrow I will fly to Zhengzhou, the capital of Henan Province, to deliver a series of lectures.  My hosts have promised also to take me to the famous Shaolin Temple, the birthplace of martial arts.

Thursday, November 27, 2014

Montreal Protocol Talks Focus on HFCs, Supreme Court to Hear MATS Cases, Macalester Visit, China Trip (by Bob Percival)

Representatives from more than 100 countries who are parties to the Montreal Protocol on Substances that Deplete the Ozone Layer met in Paris from November17- 21, 2014 for their 26th Meeting of the Parties (MOP).  The meetings focused largely on efforts to expand the Protocol to phase out hydrofluorocarbons (HFCs), substances that are potent greenhouse gases.  Because many substances that deplete the ozone layer also are greenhouse gases, the Montreal Protocol, adopted in 1987, actually has been responsible for reducing more GHG emissions than the Kyoto Protocol.  Most countries now agree that it would be wise to use the Montreal Protocol to phase out HFCs.  Although China and India previously had been obstacles to reaching agreement on this issue, they have agreed to support such an initiative, in part due to personal diplomacy by President Obama in meetings with Chinese President Xi Jinping and Indian Prime Minister Narendra Modi during the last 18 months.  David Doniger, director of NRDC’s climate program who attended the Paris meetings, reports that the delegation from Saudi Arabia was the largest obstacle to reaching an agreement, perhaps as part of a larger strategy to stall global climate negotiations (http://switchboard.nrdc.org/blogs/ddoniger/countries_accelerate_talks_on.html).  Agreement was reached in Paris to accelerate the negotiations on HFCs in hopes that a final agrement can be reached at MOP-27 next November, just prior to the crucial climate talks scheduled for Paris in December 2015.

On November 25 the U.S. Supreme Court announced that it had agreed to review the D.C. Circuit’s decision upholding EPA’s regulation of mercury and air toxics (MATS) from power plants as hazardous air pollutants under Section 112 of the Clean Air Act.  The decision was not a surprise because the Court announced on November 17 that it had relisted the petitions for a second conference after considering them at conference on November 14.  I had learned from good authority that the Court has a new, unannounced rule that it ordinarily will not grant cert until it has considered a petition at more than one conference of the Justices.  This rule apparently is a response to the Court discovering in the past that some cases they agreed to review did not actually present the questions the Justices initially thought they did.  Although some observers expressed surprise when the Supreme Court announced that it had relisted the petitions for a second conference, it confirmed for me that the Court was likely to review them.  The Court granted review on a question it framed as: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”  The consolidated cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA and National Mining Association v. EPA.  At the two Supreme Court preview programs ELI President John Cruden and I presented last month, we predicted that these were the environmental cases the Court was most likely to take, though I hoped the Court would deny review.  Some utility executives interviewed by the press indicated that they may suspend their orders for new pollution control equipment pending the Court’s decision in the case.

On November 20 and 21 I visited Macalester College’s Environmental Studies Program along with my former colleague Bruce Rich, former director of international programs for the Environmental Defense Fund.  I introduced Bruce at a campus-wide lecture on November 20 and then attended a program where he spoke at the Institute for Agriculture and Trade Policy.  Both of Bruce’s lectures focused on the environmental consequences of World Bank policy.  On November 21 I participated in a luncheon of Macalester students interested in applying for a summer Global Environmental Justice fellowship.  In the afternoon I gave a lecture on climate change and the new U.S./China agreement to an environmental studies class at Macalester.  I continue to be really impressed with Macalester’s interdisciplinary Environmental Studies Program and the quality of the students who have enrolled in it.

I hope everyone had a happy Thanksgiving.  In a few hours I am leaving for China, my fourth trip of the year to that country.  I will be completing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  On December 3 I am scheduled to give a campus-wide lecture on “Is Divided Government Dysfunctional?” As is usual during my China trips, I do not expect to be able to post blog entries on this website because Blogspot is blocked by China's Great Firewall.  I will be blogging on my parallel blog at: www.globalenvironmentallaw.com.  I will be returning to the U.S. on December 20.  

Sunday, November 16, 2014

Historic US/China Climate Agreement, Japan Reactor Restart Approved, Yates Oral Argument, IUCN World Parks Congress, IFC Adopts Levi's TOE (by Bob Percival)

On November 12 President Obama and Chinese President Xi Jinping announced that they had reached a historic agreement on reducing emissions of greenhouse gases (GHGs) in the U.S. and China. The text of the joint announcementis available online at: http://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change. Under the agreement the U.S. pledges to reduce its GHG emissions by between 26 and 28% over 2005 levels by the year 2025.  China pledges to cap its GHG emissions as soon as possible, but no later than 2030.  Both countries pledge to work together to speed the development of new technologies to accelerate controls on GHG emissions.

Incoming Senate majority leader Mitch McConnell quickly criticized the agreement, claiming that “it requires the Chinese to do nothing at all for 16 years while these carbon emission regulations are creating havoc in my state and other states around the country.”  But 2030 is the final compliance date for both China’s new commitment and EPA’s Clean Power Plan. To meet its commitment to cap its rapidly rising emissions by then China must launch a variety of GHG control initiatives now, just as EPA is trying to launch its Clean Power Plan.  

The subject of the U.S./China agreement came up during a presentation I made at the 2014 Federalist Society National Lawyers Convention on November 15 on a panel on “Do EPA’s CO2 Rules Go Too Far.”  The panel was moderated by Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit.  Also on the panel were former EPA Deputy Administrator Robert M. Sussman, Paul Bailey from the American Coalition for Clean Coal Electricity, and Elbert Lin, the Solicitor General of West Virginia.  Video of the presentation is available online at https://www.youtube.com/watch?v=N7Iye7WYxtY&feature=youtu.be.  I noted that China’s plans are even more far-reaching than EPA’s in several respects because China plans to convert its seven pilot carbon trading programs into a nationwide program, China has a national portfolio standard that it will strengthen to generate 20% of its energy from renewable sources by 2030, and China is starting explicitly to restrict the use of coal.  In my presentation I also discussed the legal issues raised by EPA’s Clean Power Plan.  These include EPA’s unquestioned authority to regulate GHG emissions under the Clean Air Act (CAA), the premature lawsuits seeking to stop the rulemaking, the conflicting versions of §111(d) adopted by Congress in 1990, and why EPA’s interpretation of “best system of emissions reduction” (BSER) is permissible under the Act. I also noted that the CAA has generated more benefits than any other environmental statute because policymakers rejected exaggerated claims about the prospective costs of regulation that have been made at every significant juncture in its history.

The U.S./China climate agreement is truly historic.  It represents the first time China has committed to cap its emissions of GHGs, a daunting task given China’s rapid economic growth.  Because China and the U.S. are the two largest sources of current GHG emissions, it greatly increases the chances of a global GHG reduction agreement being reached in Paris at the end of next year (both countries state they are “committed to reaching an ambitious 2015 agreement that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances.”)  It also counters what has long been the chief excuse for inaction by the opponents of domestic controls on GHG emissions.  Tom Toles eloquently summed this up in a cartoon that appeared in the Washington Post with an elephant telling uncle Sam “We shouldn’t cut our carbon emissions because China won’t cut theirs.”  Uncle Sam replies, “They just agreed to cut theirs!”  The elephant then replies, “We shouldn’t cut ours for some other reason.”

The midterm election on November 4 resulted in the Republican Party acquiring a majority in the U.S. Senate, given them control of both houses of Congress.  State initiatives to require labeling of products that contain genetically modified organisms (GMOs) were defeated in Oregon (by 50.5-49.5%) and in Colorado (by 65.7-34.3%), leaving Vermont as the only state with such a law. 

On November 7 Kagishima prefecture in Japan approved the restart of two nuclear reactors at the Sendai nuclear powerplant.  The decision is considered a victory for Prime Minister Shinzo Abe’s government which is seeking to restart nuclear powerplants closed in the wake of the Fukushima Daiichi disaster, despite strong public opposition.  If these reactors are restarted early next year they will be the first of the country’s 48 nuclear powerplants to generate electricty since the March 2011 disaster when all were taken offline.

On November 5 some of the students in my Environmental Law class came to the Supreme Court with me to watch the oral argument in Yates v. U.S.  The case involves the application of the Sarbanes-Oxley legislation’s ban on destruction of evidence to a commercial fisherman who was caught in federal waters with undersize red grouper.  The legal question is whether a fish is a “tangible object” whose destruction is prohibited when it impedes an investigation, as the conservative judges in the lower court held. The fisherman received a sentence of only 30 days in jail, but Justices Scalia and Alito expressed outrage that he potentially could have been given a 20 year term.  When the lawyer for the Solicitor General pointed out that the fisherman has disobeyed an explicit instruction to preserve evidence “and then launched a convoluted cover-up scheme to coverup the fact that he had destroyed the evidence,” Chief Justice Roberts responded, “You make him sound like a mob boss or something.”  It was hard not to come away from the argument with the impression that because it was federal fisheries laws that were being enforced, several Justices did not take the crime of destruction of evidence as seriously.  In an editorial supporting the convicted fisherman, the Wall Street Journal bizarrely asserted that the law could bar a company from cleaning up a chemical spill because it would be destroying evidence. “For Want of a Grouper,” Wall Street Journal, Nov. 6, 2014.

The once-a-decade IUCN World Parks Congress convened in Sydney, Australia this week. The theme of the 2014 Congress is “Parks, People, Planet: Inspiring Solutions.” The opening plenary session was held on November 13.  The conference will run through November 19.  At the conference, Google unveiled a new app to make it easier to track illegal fishing activities. Developed in conjunction with Oceana and SkyTruth, the app will make it easier to track the movements of thousands of fishing vessels using data points from the Automatic Identification System network that maps a vessel’s location using GPS technology.  Another side event at the Parks Congress was the first meeting of a group of experts convened by Australia’s The Places You Love Alliance.  The group will seek to develop proposals for improving Australia’s environmental laws.  I am one of two foreign experts appointed to the panel and I briefly participated in the opening meeting by Skype.

On November 4 the International Finance Corporation, part of the World Bank Group, announced that it was working with the Levi Strauss Corporation to provide financial incentives to suppliers in developing countries to upgrade their environmental, safety, and labor standards. The IFC Global Trade Supplier Finance (GTSF) program will provide lower cost financing to garment suppliers who score highly on Levi’s Terms of Engagement (TOE) assessments.  Levi Strauss pioneered environmental and social assessments of suppliers in 1991 when it launched its TOE program.

On November 14 the University of Maryland Carey School of Law’s Environmental Law Program held its annual Fedder Lecture and Winetasting.  More than 100 alums joined Maryland’s faculty and students for the event.  This year’s Fedder Lecture was deliver by David Doniger, director of clean air and climate programs for the Natural Resources Defense Council.  The topic of his lecture was “Paths Forward on Climate: What’s Worked So Far and What’s Next.”  Doniger expressed optimism that the new U.S./China agreement will increase the chances for successful negotiation of a new global climate treaty in Paris at the end of next year.

Sunday, November 2, 2014

IPCC Warns of "Irreversible" Impacts of Climate Change, EU Agrees on GHG Targets, China's "Rule of Law" Plenum, Penn Conference, Kunming Delegation (by Bob Percival)

At a meeting in Copenhagen the Intergovernmental Panel on Climate Change (IPCC) released its final synthesis report describing the conclusions of the various reports generated by its Fifth Assessment of the problems of global warming and climate change. In a press release issued today, the IPCC stated “human influence on the climate system is clear and growing with impacts observed on all continents.” The IPCC concluded that “if left unchecked, climate change will increase the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.” More than 830 scientists from 80 countries played significant roles in the development of the Fifth Assessment reports.  They reviewed more than 30,000 scientific papers to produce the most comprehensive assessment of climate change ever issued. Thomas Stocker, co-chair of IPCC Working Group I, notes that “the assessment finds that atmosphere and oceans have warmed, the amount of snow and ice has diminished, sea level has risen and the concentration of carbon dioxide has increased to a level unprecedented in at least the last 800,000 years.” The synthesis report concludes that “stringent mitigation activities can ensure that the impacts of climate change remain within a manageable range.” 

On October 21 I attended the Environmental Law Institute’s annual dinner in Washington, D.C. Hundreds of environmental lawyers showed up, filling the ballroom of the Shoreham Hotel.  ELI President John Cruden presented the Institute’s annual award to Mary Nichols, chair of the California Air Resources Board, and the state of California for their leadership in developing innovative environmental protection measures.  California Representative Henry Waxman, who is retiring from Congress, gave a wonderful talk that touched on the history of California’s role as an environmental pioneer.  It was great to see so many of my former students at the event and to get to introduce some of them to Mary Nichols.

On October 23 leaders of 28 European Union countries agreed to reduce EU emissions of greenhouse gases (GHGs) by 40 percent from 1990 levels by the year 2030. This represented the first commitment by a major bloc of countries in advance of the crucial summit to be held in Paris at the end of next year to adopt a successor to the Kyoto Protocol. The EU agreed on a goal of increasing the percentage of energy generated by renewable sources to 27 percent and on a largely hortatory goal of improving the energy efficiency of its economies by 27 percent. Sweden and Germany reportedly had sought more ambitious targets, but were pressured by Poland and other eastern EU countries to soften them.

On October 23 the Fourth Plenary Session of the 18th Central Committee of the Chinese Communist Party approved its much-anticipated rule of law document.  The report states that the Party “must comprehensively move ruling the country according to the law forward” in order to  develop “Socialism with Chinese characteristics,” to “realize the modernization of the national governing system and governing ability” and to promote “the people’s welfare, peace and health.” Throught the report emphasis is placed on the overriding importance of maintaining the Communist Party’s leadership of China.  In a section entitled “Strengthen Legislation in Focus Areas” one paragraph advocates strengthening environmental protection as follows: “Use strict legal structures to protect the ecological environment, accelerate the establishment of ecological civilization law structures to effectively restrain exploitative behaviour and stimulate green development, recycling development and low-carbon development, strengthen the legal liability of producers for environmental protection, substantially raise the costs of violating the law. Build and complete legal structures for property rights over natural assets, perfect legal structures in the area of State land exploitation and protection, formulate and perfect laws and regulations for ecological compensation, the prevention of soil, water and air pollution and the protection of the maritime ecological environment, to stimulate the construction of an ecological civilization.”

On October 24 I participated in a conference at the University of Pennsylvania Law School on the use of films in legal advocacy.  The conference was organized by Professor Regina Austin, Director of the Program on Documentaries & the Law at Penn, and Professor Daniel Kiel from the University of Memphis School of Law.  The conference was attended by approximately twenty professors and several students from fifteen schools including Penn, Maryland, Yale, Harvard, Georgetown, Miami, Chicago-Kent, Kentucky, Florida A & M,  New York Law School and others.  I spoke on the opening panel and described how students in my Environmental Law class have made films each year since 2002.  Over the years my students have made approximately 100 films; 70 are on display online at:  http://digitalcommons.law.umaryland.edu/envirofilms/.  It was interesting to see the different ways in which film is being used in law school classes.  The participants expressed interest in making the event an annual gathering and possibly hosting a law student film festival in the future.

On October 28 I attended the 25th anniversary celebration of the Center for International Environmental Law (CIEL) at the U.S. Botanical Gardens.  At the event CIEL presented its International Environmental Award to Professor Philip Allott of Trinity College, Cambridge, and its Frederick R. Anderson Award for Outstanding Achievement in Addressing Climate Change to former NASA scientist James Hansen.  It was great at the event to get a chance to catch up with Philippine environmentalist Tony Oposa, who is spending the fall semester visiting at Pace University Law School and who will be visiting at the University of Hawaii Law School next spring.

On October 29 I spoke to a group of environmental official from Yunnan Province in China who are participating in the Kunming Institute of Environmental Science Executive Education program sponsored by the Maryland China Initiative at the University of Maryland College Park (UMCP). I gave a total of four hours of lectures on U.S. environmental problems and the development of U.S. environmental law.  UMCP’s Maryland China Initiative is one of only two entities in the U.S. officially approved by China’s State Council to held train Chinese officials (the other is the John F. Kennedy School of Government at Harvard University).

Monday, October 20, 2014

ACOEL Annual Meeting, Islanders Protest Australian Coal, India Ends Diesel Subsidy as Global Oil Prices Plummet, Exxon & Shell Increase Carbon Footprint Despite Production Drop, Beijing Marathon (by Bob Percival)

On Thursday October 16 I flew to Austin, Texas to participate in the annual meeting of the American College of Environmental Lawyers (ACOEL).  The group is an organization of environmental lawyers whose membership is elected and capped at 250.  The vast majority of the members work for law firms, but there are some academics and lawyers for government agencies or NGOs as well.  On Friday October 17 EPA General Counsel Avi Garbow gave the keynote address to the group.  He noted that he had recently visited China where he had the honor of presenting a medal to the U.S. Foreign Service officer in the Beijing Embassy who had been responsible for creating a Twitter feed providing real time data on levels of particulate matter (PM).  The public interest generated by this development helped spur the Chinese government to establish an air quality standard for PM 2.5. Garbow also stated that he had visited Ma Jun whose Institute of Public and Environmental Affairs has launched an app that allows the Chinese public to obtain pollution data on their smart phones.  Garbow noted that EPA’s has a “My Green Apps” webpage (http://www.epa.gov/mygreenapps/), though a quick visit to it indicates that EPA is no longer updating the page to list new environmental information apps.

On Saturday October 18 John Cruden, the president of ELI, and I gave a presentation to ACOEL on “Cases of the Year: Environmental Law in the Supreme Court.”  We reviewed the Court’s three major environmental decisions last year: EME Homer City, which upheld EPA’s air transport rule to control interstate air pollution, Utility Air Regulatory Group, which largely upheld EPA’s regulation of greenhouse gases for sources that require PSD permits, and CTS v. Waldburger, which held that CERCLA § 309 imposes a federal discovery rule that tolls only state statutes of limitations and not statutes of repose.  The Supreme Court has not yet agreed to hear any significant environmental cases this Term, but we discussed four cases the Court will hear that may have some implications for environmental law.  We also reviewed some cert petitions that are before the Court and agreed that EPA’s mercury and air toxics (MATS) rule is the most likely candidate for Supreme Court review this Term.

On October 17 a group of protesters from South Pacific islands blocked the port of Newcastle, Australia to protest coal exports that contribute to climate change.  The protest, organized by the group 350.org, targeted Austrlian Prime Minister Tony Abbott’s efforts to expand Australian coal exports. The Australian government has repealed coal and carbon taxes while approving new ports for coal exports.  Last week the Australian government criticized a decision by Australian National University to divest assets held in fossil fuel companies.  The Australian think tank Australian Institute responded with an open letter signed by prominent Australians, including former conservative prime minister Malcolm Fraser defending the university.   Jamie Smyth, Green Groups Take Aim at Champions of Australia’s Burgeoning Coal Industry, Financial Times, Oct. 18-19, 2014, at 4.

During the past month there has been a sharp decline in oil prices from over $100 per barrel to nearly $80.  Taking advantage of this surprising drop, Indian Prime Minister Narendra Modi has just ordered an end to government subsidies on the price of diesel fuel, while raising the regulated price of natural gas by one-third. The diesel oil subsidies cost the Indian government $23 billion last year. James Crabtree, Modi Ends Diesel Subsidy and Continues Reform Drive, Financial Times, Oct. 20, 2014, at 4. Another benefit from the plunge in global oil prices is that it has intensified the economic pain of sanctions on the Russian government.  Thomas Friedman, A Pump War, New York Times, Oct. 15, 2014. A critic of green energy who has a regular column on the editorial pages of the Wall Street Journal expressed glee that lower oil prices would reduce investments in renewable energy. Holman Jenkins, Cheap Oil Pops the Green Policy Bubble, Wall Street Journal, Oct. 15, 2014.  

The Carbon Disclosure Project reported last week that both Exxon Mobil and Royal Dutch Shell increased their greenhouse gas emissions last year despite producing less oil. Daniel Gilbert, Wall Street Journal.  The carbon intensity of their oil production (GHG emissions per barrel of oil produced) has increased ten percent since 2011. The increased carbon intensity of their production is attributed to the increasing difficulty of extracting oil from more remote sources. By contrast, Chevron and BP have slightly reduced the carbon intensity of their production since 2011.

On Sunday October 19 the 34th Beijing International Marathon was run despite severe air pollution in China’s capital.  Chinese authorities rated Beijing’s air as “heavily polluted,” a level that comes with a warning to avoid outdoor activity.  Many runners wore masks or used wet sponges in the race.  Girmay Birhanu Gebru of Ethiopia won the men’s race, while his fellow countryman Fatuma Sado won the women’s.

The midterm elections are rapidly approaching in the U.S. with control of the U.S. Senate hanging in the balance.  One candidate who currently is leading in the polls in my home state of Iowa wants to abolish the U.S. Environmental Protection Agency, an issue that was front and center during a candidates’ debate on Oct. 11.  Republican candidate Joni Ernst argued that the state of Iowa could do a better job of protecting the environment if EPA were abolished.