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

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.  

Monday, October 6, 2014

Modi and Obama Agree on Climate Initiatives, Half of Planet's Wildlife Lost in 40 Years, ELI Program on Supreme Court and the Environment, China Presentation (by Bob Percival)

Among the many issues discussed last week at the first meeting between U.S. President Barack Obama and Indian Prime Minister Narendra Modi was the importance of working together to combat global warming and climate change.  Following their meeting at the White House on September 30, Premier Modi stated that climate change was a priority for both the U.S. and Indian governments. In a joint statement released by the leaders after their meetings,they announced agreement “a new and enhanced strategic partnership on energy security, clean energy, and climate change.”  This agreement includes expanding the U.S.-India Partnership to Advance Clean Energy (PACE) through “a new Energy Smart Cities Partnership to promote efficient urban energy infrastructure, a new program to scale-up renewable energy integration into India’s power grid, cooperation to support India’s efforts to upgrade its alternative energy institutes and to develop new innovation centers, an expansion of the Promoting Energy Access through Clean Energy (PEACE) program to unlock additional private sector investment and accelerate the deployment of cost-effective, super-efficient appliances, and the formation of a new Clean Energy Finance Forum to promote investment and trade in clean energy projects.“ They agreed to work together toward reducing production and consumption of hydrofluorocarbons (HFCs), which are potent greenhouse gases, under the Montreal Protocol on Substances that Deplete the Ozone Layer. The leaders also expressed their commitment to concluding a successful new global agreement on climate change at the Conference of the Parties to the UN Framework Convention in Paris in December 2015.

In its 2014 Living Planet Report released on September 30, the World Wildlife Fund estimated that the total population of vertebrates on the planet has declined by 52 percent between 1970 and 2010.  Two years ago WWF reported a 28 percent decline in the numbers of these animals had occurred between 1970 and 2008.  The new numbers in the report, which is available online at http://wwf.panda.org/about_our_earth/all_publications/living_planet_report/, are based in part on a recalculation of the previous data.  The WWF report also estimates that current resource consumption by humans exceeds the carrying capacity of the planet by approximately 50 percent so that it would take one and one-half earth’s to make current human consumption patterns sustainable.

On October 1 I was a panelist on a “Supreme Court Review and Preview” program at the Environmental Law Institute in Washington.  The other panelist was former EPA general counsel E. Donald Elliott, a private practitioner who teaches environmental law at Yale Law School.  We reviewed the three major environmental decisions by the Supreme Court last term - EME Homer City (upholding EPA’s transport rule for controlling interstate air pollution), Utility Air Regulatory Group v. EPA (upholding a major part of EPA’s program to regulate greenhouse gas emissions), and CTS v. Waldburger (holding that §309 of CERCLA’s preemption of state statutes of limitations does not preempt state statutes of repose).  We then discussed the upcoming Supreme Court Term, which officially opened today.  As I predicted during the program, the Court announced today that it will not hear a challenge to EPA’s national ambient air quality standard for ozone.  The Court has not yet agreed to hear any major environmental cases during its OT 2014 Term.  Don and I agreed that the most likely candidate for such a case is a challenge to EPA’s mercury and air toxics (MATS) regulation.

A tape of the program can be downloaded by ELI Associates at: http://www.eli.org/events/supreme-court-review-preview

On October 2 I gave a presentation on “China and Climate Change” as part of a new campus-wide "Be Informed" series on the University of Maryland’s Baltimore campus where our law school is located.  I discussed China’s statement at the recent UN Climate Summit that it would agree to an eventual cap on its greenhouse gas emissions and the country’s efforts to expand its pilot cap-and-trade programs for carbon to a national scale.

Monday, September 29, 2014

China Tells U.N. Climate Summit it Will Cap GHG Emissions ASAP, U.S. GHG Emissions Rise, Rockefeller Family to Divest Fossil Fuel Investments, India Supreme Court Revokes Coal Leases (by Bob Percival)

At the UN Climate Summit on September 23, Chinese Vice Prime Minister Zhang Gaoli announced that China would try to stop the rise of its carbon emissions “as early as possible.” Minister Zhang stated that “as a responsible major developing country, China will make an even greater effort to address climate change and take on international responsibilities that are commensurate with our national conditions.” Zhang spoke after President Obama, who had declared that the U.S. and China bear a “special responsibility to lead,” Mr. Obama said, “That’s what big nations have to do.”  According to the Global Carbon Atlas, China is now the world’s leading emitter of greenhouse gases (GHGs) accounting for 27.6% of global emissions.  The U.S. is the second largest emitter.  However, the U.S.still  emits considerably more GHGs per person, 16 tons per persons compared to China’s 7.2.

President Obama declared that “the United States has reduced our total carbon pollution by more than any other nation on earth, but we have more to do.”  The latter portion of his statement was emphasized on September 26 when the U.S. Energy Information Administration (EIA) reported that U.S. carbon emissions from energy use rose in each of the last two years, largely due to the rebounding economy. The EIA report did note that emissions from the transportation sector were flat because Americans were buying more fuel efficient vehicles, that wind and solar energy sources increased seven percent last year, now accounting for 12 percent of U.S. energy generation.

Last week the heirs of oil baron John D. Rockefeller announced that they would divest their $860 million Rockefeller Brother Fund (RBF) of investments in fossil fuels in light of their contribution to global warming and climate change.  The RBF has long been a major supporter of environmental causes, contributing to many of the projects I worked on at the Environmental Defense Fund during the early 1980s.  But last week’s announcement drew great attention because the fund is the product of a fortune initially made in the oil industry.  The RBF indicated that it would take some time to sell its investments in companies in the fossil fuel industry and subsequent reports suggested that the fund may keep its natural gas investments for a longer period of time.  

Last May Stanford University, where I went to law school, announced that it will no longer include companies who mine coal for electricity generation in the investment portfolio of its endowment.  The university Board of Trustees acted on the recommendation of its Advisory Panel on Investment Responsibility and Licensing.  Harvard University has expressly refused requests that it divest its endowment of companies in the fossil fuel industry, citing concerns that such a move might hurt the fund’s returns and the fact that the university uses fossil fuels to heat and light its buildings.

On September 24 the Supreme Court of India upheld a previous decision to revoke 214 coal leases that the Indian government had awarded between 1993 and 2009.  The Court found that the leases had been granted to steel, cement and power companies at prices billions of dollars below market rates.  The Court not only fined the companies $4.85 per metric ton of coal they had mined under the leases, but it also barred them from receiving future leases. The companies were given six months to wind down their coal operations before turning them back over to a government entity.  While some observers expressed fear that the decision could exacerbate energy shortages in India, the Court noted that the leases account for only 7 percent of the country’s coal production and that they may be reallocated in the future.  Neha Thirani Bagri, India’s Top Court Revokes Coal Leases, N.Y. Times, Sept. 25, 2014.

Sunday, September 21, 2014

Demonstrations Precede UN Climate Summit, Great Barrier Reef Plan, China Bans Dirty Coal, Wind and Solar Now Compete with Gas, Exxon Gets More Time to Stop Russian Arctic Drilling (by Bob Percival)

People around the world today staged massive demonstrations to demand action from world leaders who will gather at the United Nations on Tuesday September 23 to discuss climate change. The largest demonstration occurred in New York City where it covered a two-mile route south from Columbus Circle.  The New York Times reported that so many demonstrators turned out that protesters still were waiting to be able to move two hours after the front of the group commenced the march. New York Mayor Bill de Blasio announced “a sweeping plan to overhaul energy efficiency standards in all state-owned buildings.” Lisa W. Foderaro, At Climate March in New York, A Clarion Call to Action, N.Y. Times, Sept. 21, 2014.

Last week the Australian and Queensland governments announced a 35-year plan for management of the Great Barrier Reef.  The Reef 2050 Long-Term Sustainability Plan was widely reported to be an effort to forestall the UNESCO from classifying this World Heritage site as “in danger” due to climate change and coastal development.  The reef has lost approximately half of its coral. The plan, which is open to public comment until October 27, 2014, is available online at: http://www.environment.gov.au/marine/great-barrier-reef/long-term-sustainability-plan.  Environmentalists had hoped that it would ban the disposal of dredge spoil on the reef, but it does not.  However, the Queensland government has announced a new plan to dispose of 3 million cubic feet of dredged spoil from the Abbot Point port expansion on land, instead of in reef waters, as previously had been planned.

Last week China’s powerful National Development and Reform Commission (NDRC) banned the burning of low quality coal near populated areas that are fighting severe air pollution.  The NDRC prohibited the use of coal with an ash content greater than 16 percent or a sulphur content of greater than one percent.  The ban will take effect in 2015.  The NDRC also has banned all mining or importation of particularly dirty coal with an ash content greater than 40 percent or a sulphur content greater than 3 percent.  Lucy Hornby & Jamie Smyth, China Ban on Low-Grade Coal Set to Hit Global Miners, Financial Times, Sept. 15, 2014.

Last week Lazard Ltd. relesed its annual comparative analysis of the cost of various fuel sources. The report “Lazard’s Levelized Cost of Energy Analysis - Version 8.0,” which is available online at: http://www.lazard.com/PDF/Levelized%20Cost%20of%20Energy%20-%20Version%208.0.pdf, found that the cost of solar and wind energy projects has continued to decline rapidly. In the last five years the cost of wind energy has declined 58 percent while solar photovoltaics have declined 78 percent in cost.  This has occurred because of significant declines in the prices of materials used in these projects along with dramatic improvements in the efficiency with which these projects generate energy. In many parts of the U.S. large wind farms and solar projects now may be cheaper than gas-fired power even without subsidies.

The U.S. Treasury granted ExxonMobil a short-term extension of its previous September 26 deadline to halt its drilling operations in the Kara Sea in the Russian Arctic.  The extension was granted to enable Exxon to safely wind down its drilling operations.  Exxon’s joint venture with Russia’s Rosnoft must be halted because of U.S. sanctions that were tightened due to Russia’s invasion of Ukraine. Previous sanctions imposed in July only prohibited the export of U.S. of U.S. technology.  These sanctions were broadened earlier this month to prohibit U.S. companies from providing services or technology. Ed Crooks, Russia Arctic Drilling on Hold at Exxon, Financial Times, Sept. 20, 2014, at 12.

September 17 was the 227th anniversary of the signing of the Constitution.  The University of Maryland Carey School of Law celebrated Constitution Day with a wonderful program on “The Supreme Court Justice as Constitutional Scholar.”  Three former Supreme Court law clerks whose Justices have written books about theories of constitutional interpretation spoke at the law school event. Decades before they clerked, I clerked for Justice Byron White who eschewed such theories and declared that the job of the Supreme Court Justice is “to decide cases”.  I took the clerks to lunch and enjoyed exchanging stories about the life of a law clerk.  

Yesterday I spoke about the Environmental Law Program’s activities and future plans at a meeting of the Maryland Carey Law Board of Visitors who celebrated my Senior Education Award from the IUCN Academy of Environmental Law.