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

Saturday, July 25, 2015

New World Temperature Record, UAE Ends Oil Subsidies, China Protests Myanmar Illegal Logging Convictions, Filipinos Respond to Pope's Climate Message (by Bob Percival)

Evidence that global warming is having real, immediate impacts mounted this week.  Heat waves around the world caused firetrucks to spray water on train tracks in eastern Europe to keep them from warping.  Iraq declared two days of national holidays to keep people indoors as temperatures soared about 50 degrees Celsius (122 degrees Fahrenheit).  The National OceanIc and Atmospheric Administration’s National Centers for Environmental Information announced last week that June 2015 was the hottest June on record.  The period from July 2014 to June 2015 was the hottest 12-month period since temperature recordkeeping began in 1880.  NOAA, Global Analysis-June 2015, online at: https://www.ncdc.noaa.gov/sotc/global/201506

Last week the government of the United Arab Emirates announced that it will end the $7 billion in annual subsidies it provides for petroleum products consumed in the country.  Oil now will be priced at market prices, which will encourage greater use of public transport and more fuel-efficient vehicles. India, Indonesia, Mexico and Egypt also have moved to reduce fuel subsidies, though an effort to do so in Kuwait generated so much public backlash that it was abandoned.  The move to end oil subsidies also will help the UAE government deal with budget problems caused by the plunging price of oil. Simeon Kerr & Pilita Clark, UAE Drops Fuel Subsidies to Bolster Finances, Financial Times, July 23, 2015, at 4.

China has filed a diplomatic protest with the government of Myanmar after 153 Chinese nationals were sentenced to life imprisonment for illegal logging by a court in the city of Myitkyina in northern Myanmar.  The defendants were not sentenced for violating environmental laws, but rather for stealing public property.  They were caught after a raid that netted 400 vehicles and 1,600 logs.  Deputy environmental minister Aye Myint Maung reported that 10,000 tons of illegally harvested timber has been seized by the Myanmar government in the first six months of 2015.  Aung Hla Tun, Myanmar Sentences Chinese Nationals to Life for Illegal Logging, Reuters, July 23, 2015 (http://uk.reuters.com/article/2015/07/23/uk-myanmar-china-idUKKCN0PX03F20150723). 

Filipino Catholics have pledged to gather 10 million of the 20 million signatures sought by the Global Catholic Climate Movement (GCCM) for a petition urging action on a new global climate treaty by delegates to COP-21 in Paris in December.  Lou Arsenio, ecology ministry coordinator for the Archdiocese of Manila, noted that Filipinos are well aware of the dangers of climate change in light of the devastation caused by Typhoon Haiyan, which killed nearly 6,000 people in 2013.

On July 23 Royal Dutch Shell received two permits from the federal government to begin exploratory oil drilling in the waters of the Chukchi Sea off the northwestern coast of Alaska.  Shell announced that it will begin drilling as soon as the area is clear of sea ice.  The U.S. Department of Interior announced that Shell only will be allowed to drill the top portion of exploratory wells until emergency capping equipment is in place.  The equipment has been diverted to Portland, Oregon for repairs after an accident while en route to the drilling site.  While other major oil companies have stopped plans for drilling in the Arctic because they deem it too risky, Shell seems anxious to recoup at least a portion of the billions of dollars it has sunk into the project over the past decade.

I just finished the first week of my two-week summer course in Comparative U.S./China Environmental Law at Vermont Law School.  On Tuesday July 28 I will be giving a “Hot Topics” talk to the VLS community on the unique regime of environmental law applicable to the continent of Antarctica.  Professor Zhao Huiyu, who is co-teaching the Comparative U.S./China course with me, will discuss China’s new public interest litigation law in a “Hot Topics” lecture on July 30.

Saturday, July 18, 2015

Arctic Nations Agree to Commercial Fishing Moratorium, ATS Suit Goes Forward, Washington Times Oped, Scalia/Ginsburg World Premier (by Bob Percival)

On July 16 five Arctic nations - the U.S., Russia, Canada, Norway and Denmark - agreed to a moratorium on commercial fishing in the Arctic.  While commercial fishing does not currently occur in the Arctic, the nations emphasized the importance of taking a precautionary approach as global warming makes Arctic waters more accessible.  Greenpeace argued that high seas in the Arctic should be declared a marine sanctuary where oil extraction, commercial fishing, and other commercial activities should be banned.  They also advocated that other countries with large global fishing fleets should endorse the agreement.  Announcement of the agreement, which was largely completed last year, was delayed by controversy over Russia’s intrusion into Ukraine.

Last week a federal district court in Washington unsealed an opinion by Judge Royce Lamberth allowing a lawsuit to go forward against ExxonMobil charging human rights abuses in connection with the development of natural gas facilities in Aceh Province Indonesia in 2000 and 2001.  The plaintiffs allege that Exxon was complicit in the murder of villagers opposed to the project by Indonesian security forces. Judge Lamberth distinguished the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), which dismissed a lawsuit alleging similar abuses by Shell Oil in Nigeria, because Shell is a foreign company while ExxonMobil is headquartered in the United States. Doe v. Exxon Mobil Corp., Civil No. 01-1357 (D.D.C. July 6, 2015). The lawsuit initially was filed in 2001alleging claims arising under the Alien Tort Statute (ATS).  Plaintiffs allege that Exxon violated five norms of international law: norms against torture, extrajudicial killing, cruel inhuman and degrading treatment, arbitrary detention, and disappearance.  The court concluded that jurisdiction is available under the ATS for “claims that sufficiently touch and concern the United States to displace the presumption against extraterritoriality.” The court noted that plaintiffs allege that Exxon executives in the U.S. received regular reports about human rights abuses by their security forces and planned and authorized their actions.

On Tuesday July 14 an oped I wrote was published in the Washington Times.  The oped is entitled “National Standards Are Essential to the Success of U.S. Environmental Law.”  It is available online at: http://www.washingtontimes.com/news/2015/jul/14/celebrate-liberty-month-national-standards-are-ess/  I wrote the oped at the request of the Federalist Society, which had invited top legal scholars (most with a conservative bent - they allowed as how I was being included to add “balance”) to celebrate Liberty Month with a series of opeds.  The oped contrasts environmental considtions in China with those in the U.S. and argues that strict and enforceable federal standards is the key to the success of U.S. environmental law 

Last Saturday July 11 I went to the world premier of an opera written by Derrick Wang, one of my former students.  Four years ago when Derrick was a student in my class he was intrigued that Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg were almost always on the opposite sides of the Court’s decisions he studied.  Knowing that both Justices are huge fans of the opera, Wang, a talented composer before entering law school, approached me with a seemingly crazy idea – to write an opera using the words of both Justices.  I then introduced him to Mike Walker, an adjunct environmental law professor at Maryland who is a member of the Washington Opera Company.   Walker helped facilitate Wang’s efforts, which I agreed to supervise as an independent study project.  The result was an impressive score that includes detailed footnotes documenting the sources of its passages.

Wang’s opera Scalia/Ginsburg was enthusiastically received at its world premier on July 11 at the Castleton Festival.  Walker and I and Justice Ginsburg were part of a wildly enthusiastic audience attending the performance.  A reviewer from the Washington Post called the opera “charming, clever, and amusing,” while noting that it is loaded with insider references appealing to lawyers who follow the Court.   Justice Scalia was out of the country and unable to attend the premier.  However, when excerpts from the opera previously were performed at the Court, Scalia was so impressed that he urged Wang to “quit the law and devote yourself to music.”

In a few hours I leave for Vermont where I will be co-teaching a course in Comparative U.S./China Environmental Law at Vermont Law School during the next two weeks.  This is the fourth year I have taught the course and the second year Professor Zhao Huiyu of Shanghai Jiaotong University KoGuan School of Law has co-taught it with me.

Saturday, July 4, 2015

Michigan v. EPA Decided, Brazil & U.S. Climate Pledges, Millennium Development Goals Report, Oklahoma Quake Fracking Suits to Proceed (by Bob Percival)

I was in the U.S. Supreme Court last Monday June 29 when the Court announced its final decisions of its 2014-15 Term.  All nine Justices were present and retired Justice Stevens was in the audience.  Normally there is not much drama associated with the announcement of decisions, but this day was different.  The first half hour was occupied by the unusual spectacle of four Justices making statements concerning the Court’s 5-4 decision rejecting a claim that the use of a particular drug in lethal injections to carry out the death penalty constituted cruel and unusual punishment.  After Justice Alito described his majority opinion and criticized the dissents in unusually tendentious terms, Justice Sotomayor made a passionate statement describing her dissent. Justice Breyer then described why he and Justice Ginsburg have decided that the death penalty is unconstitutional.  Surprisingly, Justice Scalia then insisted on presenting a rebuttal, something that may be unprecedented during the Court’s announcement of opinions.  He expressed his continued outrage with the Court’s June 26th decision recognizing a constitutional right for same sex couples to marry, which he described as five Justices imposing “their personal policy preferences” on the nation.  He stated that the view that the death penalty was unconstitutional, expressed by Justices Breyer and Ginsburg, represented a similar attempt to constitutionalize “personal policy preferences.”

When the Chief Justice then announced that Justice Ginsburg had the next majority opinion, I briefly hoped it would be Michigan v. EPA, one of only two cases remaining to be decided.  Unfortunately for EPA, Justice Ginsburg had the 5-4 decision upholding Arizona’s use of a redistricting commission.  Justice Scalia announced the majority opinion in Michigan v. EPA.  A copy of the decision is available online at: http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf.  By a 5-4 majority, the Court held that the words “appropriate and necessary” in § 112(n)(1)(A) of the Clean Air Act required EPA to consider costs when it made the initial decision to regulate emissions of mercury and air toxics from power plants.  Scalia held that EPA’s subsequent consideration of costs when it promulgated the mercury and air toxics regulations was insufficient to comply with the statute.

While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision.  EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported.  Emily Atkin, What Everyone Is Getting Wrong About the Supreme Court’s Mercury Pollution Ruling, Climate Progress, June 29, 2015 (http://thinkprogress.org/climate/2015/06/29/3675141/no-supreme-court-did-not-invalidate-mercury-rule/). Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated.  Moreover, virtually all the power plants that did not intend simply to shut down in response to the regulations are now in compliance with them (the regulations were not stayed pending judicial review).  Thus, there is now a strong consensus that the decision, while unfortunate, is certainly not a huge loss for EPA.  See, e.g., Alex Guillén, Supreme Court’s Ruling Comes Too Late for Coal, Politico, June 29, 2015 (http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissions-obama-environment-119541.html); Jack Lienke, Here’s Why You Shouldn’t Worry About the Supreme Court’s Latest Environmental Ruling, Grist, June 30, 2015 (http://grist.org/climate-energy/heres-why-you-shouldnt-worry-about-the-supreme-courts-latest-environmental-ruling/?utm_source=twitter&utm_medium=tweet&utm_campaign=socialflow).

Last week Brazilian President Dilma Rousseff visited the United States and met with President Obama at the White House.  On June 30, the leaders of the two most populous countries in the Western Hemisphere, released a joint statement pledging that by 2030 at least 20% of each nation’s electricity would be generated by renewable sources, not including hydropower. Brazil also pledged to restore 12 million hectares (more than 46,000 square miles) of its forests by 2030, to intensify efforts to eliminate illegal deforestation, and to reduce the carbon intensity of its economy by 60-65%.  Last week China filed a pledge with the UN that confirmed its November 2014 climate agreement with the U.S., pledging a 40-45% reduction in the carbon intensity of its economy by 2030.  China also reaffirmed its agreement that it would generate at least 20% of its electricity from non-fossil fuel sources by 2030.

On June 30 the World Health Organization (WHO) and UNICEF issued a report tracking global progress in meeting the Millenium Development Goals for access to safe drinking water and sanitation.  A copy of the report, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment, is available online at: http://apps.who.int/iris/bitstream/10665/177752/1/9789241509145_eng.pdf?ua=1.  The good news in the report is that since 1990 2.6 billion people (including 427 million in sub-Saharan Africa) have gained access to an improved drinking water source (defined as a facility or delivery point that protects water from open contamination).  The bad news is that 2.4 billion people, one in three of the world population, still lack access to sanitation facilities that hygienically separate human excreta from human contact and 946 million people still have to defecate in the open. Only 68% of the world’s population uses an improved sanitation facility, nine percentage points below the Millenium Development Goal target of 77% for 2015.

By a vote of 7-0, the Oklahoma Supreme Court ruled last week that homeowners who suffered damage from an unusual swarm of earthquakes since November 2011 can pursue lawsuits against oil and gas companies whose fracking they allege caused the quakes.  Plaintiffs in the lawsuits are two residents of Prague, Oklahoma, Sandra Lada and Jennifer L. Cooper.  Cooper’s lawsuit is being brought as a class action on behalf of residents of nine counties that have sustained potentially millions of dollars in property damage from the quakes.  The defendants - New Dominion, LLC of Tulsa, and Spess Oil Co. of Cleveland, Oklahoma - argued that regulation of oil and gas extraction activities by the state Corporation Commissions should insulate them from liability.  The court rejected this argument, concluding that: “Allowing district courts to have jurisdiction in these types of private matters does not exercise inappropriate ‘oversight and control’ over the (Corporation Commission). Rather, it conforms to the long-held rule that district courts have exclusive jurisdiction over private tort actions when regulated oil and gas operations are at issue.” Studies increasingly are linking seismic activity to high-pressure injection activities.

Sunday, June 28, 2015

China Trip, Dutch Court Orders GHG Emissions Cut, TSCA Reauthorization Legislation (by Bob Percival)

I am now back in the U.S. after a two-week trip to China.  I spent last week in Shanghai.  On Wednesday evening I attending a farewell dinner for Florin Tacu, the Counsul General of Romania, at the Shanghai Jiaotong Faculty Club.  He is returning to Romania to become a judge after serving as the dean of the Shanghai diplomatic corps.  On Thursday June 25 I visited the East China University of Politics and Law in Shanghai.  The university is located on a lovely, historic campus adjoining Zhongshan Park.  I presented a wide-ranging, 90-minute lecture entitled “From History to Reality: The Development of Environmental Law in the United States and the Institutional Reality.”  Following the lecture students and faculty from the university engaged in a lively dialogue with me.  School officials then hosted me for a wonderful Chinese banquet lunch.

I was supposed to fly back to Beijing on Friday, but heavy rains led to the cancellation of most flights at Hongqiao Airport, including mine.  Trains to Beijing were all full on Friday, but Professor Zhao saved me by booking me the first available space on a train Saturday morning.  After a very comfortable, 5-1/2 hours on a high-speed train going 180 mph, I arrived in Beijing just in time to make it to the airport for my return flight to the U.S. on Saturday afternoon.

Last week a court in the Netherlands ordered the Dutch government to make further cuts in greenhouse gas (GHG) emissions, citing the urgency of climate change.   The Hague District Court found that the Dutch government’s pledge to reduce its GHG emissions by 17% below 1990 levels by 2020 was insufficient.  Ruling on a lawsuit brought by the Urgenda Foundation, the court ordered the Dutch government to reduce the Netherlands’ GHG emissions by 25% below 1990 levels by 2020.  The court found that the Dutch government had a “duty of care to take mitigation measures” that was not affected by the fact the country’s current contribution to global emissions is “small.” The court based its decision on Article 21 of the Dutch Constitution, which makes the government responsible “to protect and improve the environment,” and other principles of EU and international law, including the precautionary principle.  The court determined that the 25% reduction represented the Netherlands’s fair contribution to meeting the UN goal of keeping global temperature increases to two degrees Celsius or less.  This is believed to be the first time any court in the world has required GHG reductions based on non-statutory grounds. Similar lawsuits have been filed in Norway and Belgium.  In its lawsuit the Urgenda Foundation (name stands for “urgent” and “agenda”) represented “current and future generations of Dutch nationals.”

In its annuaL statistical review of global energy released last week, BP Plc reported that primary energy consumption increased by only 0.9% in 2014, its slowest growth rate since the late 1990s.  World coal production declined by 0.7% with the largest decline occurring in China where it decreased by 2.6% even as energy production in China rose by 0.2%.  Growth in China’s energy consumption slowed to 2.6% in 2014, much lower than its average of 6.6% during the past 10 years and the lowest rate since 1998.

Defying the confident predictions of pundits, last week the U.S. Supreme Court did not release its decision in Michigan v. EPA, the case challenging EPA’s regulations to control emissions of mercury and other toxic air pollutants (see March 27, 2015 blog post describing the oral argument).  Instead the Court released blockbuster decisions upholding ObamaCare and declaring a constitutional right for gays to marry.  Because tomorrow is the last day the Court will be releasing decisions this Term, the decision is virtually certain to be issued then.  I plan to be in the Court when the decision is announced at 10AM tomorrow morning.

On Wednesday the U.S. House of Representatives passed the TSCA Modernization Act (H.R. 2576) by a vote of 398-1.  The bill includes a comprehensive overhaul of the Toxic Substances Control Act (TSCA).  It is supported by the chemical industry, but the environmental community is split of the proposed legislation.  The Environmental Defense Fund, which previously endorsed a TSCA reform bill crafted by Republican Senator David Vitter and the late Democratic Senator Frank Lautenberg, supports the legislation, but other environmental groups do not believe it is a substantial enough improvement over current law to warrant their support.   The bill would require more testing of chemicals and replace the requirement in Section 6 of TSCA that regulation employ the “least burdensome” regulatory option, while requiring EPA to “determine whether technically and economically feasible alternatives that [are more beneficial to] health or the environment . . . will be available as a substitute.”  Similar legislation is likely to be taken up by the U.S. Senate where S. 697 is being co-sponsored by a bipartisan coalition of 40 Senators.  Environmentalists also are very concerned that preemption provisions in the bills could derail some important state initiatives to phase out dangerous chemicals.

June 21 Blog Post: China Trip, Pope's Environmental Encyclical, Japan to Resume Antarctic Whaling (by Bob Percival)

Below is the blog post I made on June 21, but was unable to post while in China where Blogspot is blocked:

Last week I toured the Xinjiang Uyghur Autonomous Region in far western China.  It has been the site of considerable unrest leading to a heavy police and army presence and the absence of foreign tourists.  On Monday morning I flew from Beijing to Ürümqi, a four-hour flight.  Because China maintains a single time zone for the entire country, the sun comes up a couple of hours later in Xinjiang than it does in Beijing.  On Monday afternoon I visited Heavenly Lake in the mountains southeast of Urumqi where I took a nice hike.  On Tuesday  I visited the ancient city of Turpan, 100 miles southeast of Urumqi.  On the way to Turpan I passed through two massive wind farms, one extending for 12 miles and another for 22 miles.  They are located on two plains separated by the Tianshan Mountains where strong, sustained winds blow.   The strength of the winds was illustrated by the sight of a crane trying to right a motor home that had been blown off the road.  The wind farms had turbines almost as far as the eye could see and they provide enough electricity to power Ürümqi, a town of 3 million people. 

Turpan is located in the desert along the Turpan Depression, the fourth lowest spot on earth more than 500 feet below sea level.  It is one of the hottest and driest places on the planet.  The day before I arrived the temperature had reached 108 degrees.  I had the good fortune of being there during a rare rainstorm, which my guide explained would probably be one of only two days all year in which sustained rain fell.  I toured the remarkable ancient Karez (Uyghur word for well) irrigation system that brings water from melting mountain glaciers to Turpan through a series of underground canals that date from the Han Dynasty.  Tourists are allowed to climb underground to view the canals, which have allowed Turpan to become a grape-growing oasis. As the glaciers in the mountains recede due to climate change, parts of the 3,000-mile network of canals have begun drying up.  While in Turpan I also visited the amazing ruins of the ancient Yar City (Jiaohe) and the Mutuo Valley, a gorge in the Flaming Mountains.

On Wednesday I returned to Ürümqi where I visited the Xinjiang International Grand Bazaar, one of the world’s largest.  I got a great view of the city from the top of the tower located in the center of the bazaar.  Following a wonderful kebab lunch I visited the Xinjiang Regional Museum.  On display there is the famous Loulan Beauty, a 3,800-year old mummified corpse.  The Loulan Beauty is believed to have died while in her early 40s, probably due to lung disease caused by sand in the air and pollution from open fires.  On Thursday I flew back to Beijing where I encountered a massive traffic jam that made the trip from the airport to downtown take more than two hours.  For a total of eighteen minutes all traffic on Chang’an Avenue, downtown Beijing’s main thoroughfare, came to a complete stop as far as the eye could see.  After about ten minutes of terminal gridlock people started getting out of their vehicles and taking photos or lighting up cigarettes.  On Friday I flew to Shanghai where I will be all next week.  I will post photos of my trip in the Photo Albums section of this website.

On Thursday June 18 the Vatican officially released Pope Francis’s long-anticipated encyclical on the environment.  Entitled Laudato Si (Praise Be to You) On Care for Our Common Home, the encyclical was published in eight languages.  A copy in English is available online at: http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html.  When he was selected Pope two years ago, Argentine archbishop Jorge Mario Bergoglio chose the name Francis to honor St. Francis of Assisi, “the patron saint of all who study and work in the area of ecology.” The encyclical reviews the history of the Catholic Church’s concern for the environment, noting Pope John XXIII’s concern over the testing of nuclear weapons in 1963, Pope Paul IV’s condemnation of environmental degradation in 1971, and statements of environmental concern by their successors.  Declaring that God has entrusted the world to humans, Pope Francis states that nature is misused when it is viewed as property we use for ourselves alone.  He notes that many religious traditions properly view activity that harms the environment as a sin.  The Pope urgently appeals “for a new dialogue about how we are shaping the future of our planet.”

The encyclical presents a solid discussion of the causes and consequences of climate change and it stresses the importance of shifting away from highly polluting fossil fuel energy sources to renewable energy, something that has caused great distress to the fossil fuel industry and the climate deniers it promotes. It stresses that access to safe drinking water should be considered a fundamental human right and it strongly emphasizes the importance of protecting wetlands and preserving biodiversity.  Importantly, the encyclical declares that the biblical reference in the book of Genesis to man having “dominion” over the earth has been incorrectly interpreted to permit unbridled development (“the Bible has no place for a tyrannical anthropocentrism unconcerned for other creatures”).  Rather, it argues that “our ‘dominion’ over the universe should be understood more properly in the sense of responsible stewardship” and that the right to private property is “not inviolable,” but rather subject to a “social mortgage.”

The gist of Laudato Si is that mankind has a strong moral obligation to protect the environment that has not been honored despite repeated global environmental summits.  As a result we face an “ecological crisis” that particularly harms the poorest and most vulnerable.  We must pursue intergenerational equity and hear “both the cry of the earth and the cry of the poor” (emphasis in original).  The encyclical emphasizes “how everything is interconnected” and that various factors such as loss of freedom, violence and corruption can undermine the effectiveness of legal institutions (“Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective?”). Laudato Si praises the Montreal Protocol, the Basel Convention, and the Convention on International Trade in Endangered Species (CITES).  It endorses the precautionary principle and applauds the1992 Rio Declaration, but decries the scant development of global environmental norms since then.  

Significantly, Pope Francis stresses the importance of developing effective national environmental laws and regulations (“Society, through non-governmental organizations and intermediate groups, must put pressure on governments to develop more rigorous regulations, procedures and controls. Unless citizens control political power – national, regional and municipal – it will not be possible to control damage to the environment.”). He also notes the importance of continuity (“policies related to climate change and environmental protection cannot be altered with every change of government. Results take time and demand immediate outlays which may not produce tangible effects within any one government’s term. That is why, in the absence of pressure from the public and from civic institutions, political authorities will always be reluctant to intervene, all the more when urgent needs must be met. To take up these responsibilities and the costs they entail, politicians will inevitably clash with the mindset of short-term gain and results which dominates present-day economics and politics.”).  Pope Francis argues that laws, even when enforceable, will not alone bring about the necessary changes without ecological education that motivates individuals to change their behavior.

While Pope Francis has received high praise for Laudato Si, some parts of it have caused controversy even within the environmental community.  He criticizes carbon trading as a possible “ploy which permits maintaining the excessive consumption of some countries”. This led one prominent environmental economist to denounce Pope Francis as a representative of the views of “a small set of socialist Latin American countries that are opposed to the world economic order [and] fearful of free markets.”  The Pope does argue that market forces cannot adequately protect the environment and he identifies “the increasing use and power of air-conditioning” as an example of “harmful consumption.” He criticizes those who blame environmental degradation on population growth in developing countries and asserts that an “ecological debt” is owed by the “global north” to the “global south.” He argues for “redefining our notion of progress,” noting that “technological and economic development which does not leave in its wake a better world and an integrally higher quality of life cannot be considered progress.”  Pope Francis astutely observes that the term “sustainable growth” often is used as “a way of distracting attention and offering excuses” reducing “the social and environmental responsibility of businesses . . . to a series of marketing and image-enhancing measures.” 

Pope Francis will be visiting the U.S. in September.  His trip will include a visit to the United Nations and an address before a joint session of the U.S. Congress.  Given the encyclical’s urgent message concerning the importance of a strong, new global climate treaty, opponents of measures to control greenhouse gas (GHG) emissions are struggling to come up with responses to it.  Particularly amusing have been suggestions that religion should be kept out of politics or observations that the Pope is not a scientist by the very political figures who in the past have used religion for political aims and who refuse to accept the scientific consensus on climate change.  While the full impact of the Pope’s environmental crusade is not known yet, it seems to have improved the chances that a good, new global agreement on measures to combat climate change will be adopted at the Paris COP in December.

Last week the Japanese government announced that it plans to resume whaling in Antarctica later this year.  Japan suspended whaling after the International Court of Justice (ICJ) rejected its claim that Japan’s whaling fit within the research exception to the International Whaling Commission’s ban on commercial whaling.  An IWC expert panel said it was unable to endorse Japan’s revised plan to kill 333 minke whales each year between 2015 and 2027, approximately one-third of its previous catch.

Last week the U.S. Environmental Protection Agency (EPA) proposed to require that heavy trucks improve their fuel economy on average by 40 percent by the year 2027.  The proposal is part of the Obama administration’s plans to reduce U.S. GHG emissions.  While it is estimated that compliance with the rules could increase the cost of trucks by $12,000-14,000 per vehicle, the added expense is expected to be recouped quickly in fuel savings.  Truck manufacturer Cummins actually expressed support for the new regulations, though trucking companies were more skeptical.

Today I met with a Chinese lawyers who is involved in the new wave of public interest litigation brought in response to recent changes in China’s environmental laws.  While the jury is still out, there is considerable excitement in the legal community here in anticipation that Chinese courts will become more receptive to environmental cases.

Sunday, June 7, 2015

Oil Companies Ask for Carbon Tax, China to Ban Ivory Trade, Exxon Lobbies Vatican (by Bob Percival),

On June 1 top officials from six major multinational oil companies that have headquarters in Europe endorsed the adoption of a carbon tax to combat global warming and climate change.  The companies and the countries in which they have their headquarters are: BG Group plc (UK), BP plc (UK), Eni S.p.A. (Italy), Royal Dutch Shell plc (Netherlands), Statoil (Norway) and Total S.A. (France).  In a joint letter released at an international gas conference, the executives touted the role natural gas can play in reducing carbon emissions, while arguing that a carbon tax would help level the playing field.  The officials argued that any new global climate agreement adopted at a conference in December in Paris should promote national carbon taxes.  “We owe it to future generations to seek realistic, workable solutions to the challenge of providing more energy while tackling climate change. We urge governments to create the incentives that will encourage all contributors to a more sustainable future.” 

Wildlife groups are hailing a promise by a Chinese official to phase out trading of ivory in China.  Zhao Shucong, minister in charge of the State Forestry Administration, announced that China would “strictly control the ivory trade and processing, until eventually halting commercial processing and the sale of ivory and its products.”  Because China is one of the largest sources of demand for ivory, a ban on the ivory trade would greatly reduce incentives for elephant poaching. The African elephant population has fallen from more than one million in 1989 to less than 500,000 in 2014. It is estimated that 20,000 elephants were killed for the ivory in their tusks in both 2013 and 2014. It is unclear how fast China will act to shut down its ivory trade.

At its annual meeting on Mary 27, ExxonMobil chief executive officer Rex Tillerson dismissed concerns about climate change, claiming that technology can counter its effects.  He defended the company’s failure to invest in renewable energy projects by stating “we choose not to lose money on purpose.”  However, the company apparently is concerned about Pope Francis’s promotion of of a new global climate agreement and his upcoming encyclical on the environment.  It was revealed that ExxonMobil sent a representative to the Vatican to lobby it on climate change.

An updated profile of environmental law in Turkey has now been posted in the “Country Profiles” section of my parallel website at www.globalenvironmentallaw.com.  The profile was prepared by Turkish environmental law professor Süheyla Suzan Alıca.  I am deeply grateful to her for her work updating the profile.

At the end of last month EPA issued a final rule clarifying its interpretation of the meaning of “waters of the United States,” the jurisdictional trigger for federal regulation under the Clean Water Act.  The rule is a response to the Supreme Court’s sharply divided (4-1-4) ruling in Rapanos v. U.S. in 2006.  The rule is based in large part on a report released in September 2013 by EPA’s Science Advisory Board (“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”).  The report, which was based on review of more than 1,000 scientific studies, is available online at: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345. EPA proposed the rule in April 2014.  A pre-publication copy of the final rule is available online at: http://www2.epa.gov/sites/production/files/2015-05/documents/rule_preamble_web_version.pdf. EPA’s press release describing the final rule is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/62295CDDD6C6B45685257E52004FAC97

On Friday I will return to China for a trip that will take me to the far reaches of Xinjiang Province in China’s far west.  Two days after arriving in Beijing on June 13, I will fly to Urumqi, the provincial capital.  After touring northern Xinjiang and visiting Asia’s largest wind farm, on June 18 I will return to Beijing.  On June 19 I will fly to Shanghai where I will be until June 26. It is unlikely I will be able to post to this blog from China, but posts will appear on my parallel blog at www.globalenvironmentallaw.com

Saturday, May 16, 2015

IMO Adopts Polar Code, Canada Pledges 30% GHG Cut, Hong Kong Air Pollution, China Trip & Graduation (by Bob Percival)

On May 15 the International Maritime Organization (IMO) adopted new rules to protect the environment in polar waters in the Arctic and Antarctica (waters north of 60 degrees N latitude and waters south of 60 degrees S latitude).  Called the Polar Code, the regulations will strengthen restrictions on waste disposal by ships operating in these waters beginning in January 2017.  The new rules will ban all discharges of oil residues from ship engines and chemicals used to clean ships and their tanks.  They require food waste to be ground up and disposed at least 14 miles from land or the nearest ice formation.  The new rules complement rules on ship design and equipment for vessels operating in polar waters adopted by the IMO in November.  Environmental groups welcome the new rules, while arguing that a ban on ships using bunker fuel, which already applies in Antarctic waters, should be extended to Arctic waters.  Some countries, led by Russia, blocked this proposal when it was made several years ago. Costas Paris, United Nations Installs New Rules for Polar Ship Routes, Wall St. J., May 16, 2015, at B3.

On May 15 Canada pledged to reduce its emissions of greenhouse gases (GHGs) by 30% below 2005 levels by 2030. While Canada’s submission provided few details concerning how it would achieve its pledge, Environment Minister Leona Aglukkaq stated that new regulations would be issued to encourage the use of natural gas to generate electricity and to reduce methane emissions from the oil and gas sector.  Canadian environmentalists greeted the pledge with great skepticism, noting that Canada has failed to meet previous promises to reduce GHG emissions.

I have been back for a week from my first trip of the year to China. I spent the first week of May at Shanghai Jiaotong University’s KoGuan School of Law where I am serving as a high-level visiting foreign expert.  On May 4 I gave a guest lecture on “The Evolution of Global Environmental Law” at the Shanghai University of Politics and Law.   I will be making return trips to China in June and August.  During the last two weeks of July I will be co-teaching a seminar on Comparative U.S./China Environmental Law at Vermont Law School.

China’s government is intensifying its efforts to combat its still-serious pollution problems.  The government has set a target of having 5 million electric, hybrid, or fuel cell vehicles on the roads by the year 2020.  In the first quarter of 2015, 27,271 such vehicles were produced in China, a nearly threefold increase over last year.  On May 5 the China’s State Council released a guideline on eco-civilization that seeks to hold officials responsible for failures to enforce environmental laws.  It provides for restrictions on promotion for such officials and promises to incorporate environmental performance metrics into the annual assessment of government officials.  In Hebei province, environmental performance now reportedly accounts for 20 percent of annual performance assessments for government officials.  Reporting on the new guidance, the People’s Daily on May 6 declared: “Gone are the days when economic development came at the price of the natural environment, as well as the idea that economy and ecology are against each other.”  If only that were true.

A study by the NGO Civic Exchange, working in collaboration with researchers from the Institute for the Environment at the University of Science and Technology, finds that levels of small particulates (PM2.5) in Hong Kong exceeded the level deemed safe by the World Health Organization (25 micrograms per cubic meter of air 24-hour mean) on 280 days last year.  The group measured the pollution levels by installing air quality monitors on a tram.  The Eastern District of Hong Kong Island, where there is substantially less vehicular traffic, exceeded safe levels of air quality on only 80 days last year. Emily Tsang, Pollution Exceeds WHO Safety Limit on 280 Days, South China Morning Post, May 1, 2015, at A1.

A team of American and Chinese scientists has just published a study in Environmental Health Perspectives finding that China’s extraordinary efforts to reduce air pollution during the 2008 Beijing Olympics resulted in the birth of babies with significantly higher birth rates.  David Q. Rich, et al., Differences in Birth Weight Health Associated with the 2008 Beijing Olympic Air Pollution Reduction: Results from a Natural Experiment, available online at: http://ehp.niehs.nih.gov/1408795/.  The study, which included 83,672 pregnant women in Beijing, found that babies born immediately after the Olympics were on average 23 grams heavier than those born in 2007 and 2009.  The authors conclude that this suggests that air pollution, which was much higher before and after the Olympics, can impair the placenta’s functioning.

On May 6 China’s Ministry of Finance and Ministry of Environmental Protection issued a draft report encouraging public and private partnerships to improve water quality, particularly the quality of drinking water.  The report comes in the wake of China’s State Council announcing a crackdown on water pollution on April 16.  The city of Beijing levied a fine of 3.9 million RMB ($630,000) for water pollution against the Beijing Simplot Food Processing Company, which supplies McDonalds with french fries.  This reportedly was the largest fine for water pollution levied by the city.

Maryland Carey Law held its commencement ceremonies on Thursday May 14.  Prior to the honors recognition and hooding ceremonies the Environmental Law Program held its annual party for students graduating with the Certificate of Concentration in Environmental Law.  Because this year’s hooding ceremony was held in the evening, the environmental law program celebration was held at lunchtime.  There was a record turnout of more than 80 students and their families.  This year 26 students qualified for the Certificate of Concentration in Environmental Law.  Noting the photo slideshow of the students’ activities that was shown at the party, Dean Donald Tobin observed that it looked like the environmental students “had some fun” while accomplishing impressive things during their time in law school.  The dean then presented the certificates of concentration to the graduates, who also received the program’s signature wine glasses (“Wine - Nature’s Thanks for Preserving the Earth”).  Baltimore Mayor Stephanie Rawlings-Blake was the commencement speaker at the Hooding Ceremony, which was held in the evening at the Joseph Myerhoff Symphony Hall.