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

Sunday, April 9, 2017

El Salvador Bans Metal Mining, Japan's Whaling Fleet Returns, Trump Orders Reconsideration of Clean Power Plan, 10th Circuit Upholds ESA (by Bob Percival)

On March 29 El Salvador’s Legislative Assembly enacted legislation banning all metals mining in the country.  The measure passed with bipartisan support and backing from the influential Roman Catholic church.  Supporters of the ban argued that El Salvador’s environment is too fragile to support metals mining, particularly in light of the country’s limiting water resources.  While several countries have prohibited the use of cyanide in mining operations, El Salvador becomes the first country to prohibit all metals mining.  Mining for coal, salt and other non-metalic substances will still be permitted.  In October 2016 El Salvador prevailed in an international arbitration that rejected claims for compensation by a Canadian-Australian company that was denied permits to mine gold. Gene Palumbo & Elisabeth Malkin, El Salvador, Prizing Water Over Gold, Bans All Metal Mining, N.Y. Times, March 29, 2017, https://www.nytimes.com/2017/03/29/world/americas/el-salvador-prizing-water-over-gold-bans-all-metal-mining.html?_r=0.

On March 31 Japan’s whaling fleet returned from Antarctica after killing 333 minke whales in the Southern Ocean.  In 2014 the International Court of Justice ruled that Japan’s whaling was in violation of rules established by the International Whaling Commission (IWC) because it was not being conducted for purposes of scientific research.  While this decision temporarily halted Japanese whaling in the Antarctic, the government of Japan revised its program to qualify for the research loophole.  Japan’s Fisheries Ministry claims that the whale hunt was necessary to learn more about the reproductive and nutritional cycles of minke whales.  Kitty Block, vice president of the Humane Society International, described the whale hunt as “an obscene cruelty in the name of science that must end.”  Rachel Mealey, Japan’s whaling fleet returns after killing 333 minke whales in Southern Ocean, ABC, March 31, 2017, http://www.abc.net.au/news/2017-03-31/japan-whaling-fleet-kills-333-minke-whales-southern-ocean-hunt/8405690

On March 28 U.S. President Donald Trump signed Executive Order 13,783 on “Promoting Energy Independence and Economic Growth.” While stating that “all agencies should take appropriate actions to promote clean air and clean water for the American people,” it directs agencies instead to focus on removing burdens to the development of domestic energy resources. The executive order rescinds President Obama’s June 2013 Climate Action Plan as well as four Obama Presidential Memoranda on climate change.  It directs the Council on Environmental Quality to rescind its August 2016 final guidance on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.  

Executive Order 13,783 also directs EPA Administrator Scott Pruitt to review and, “if appropriate” to “suspend, revise or rescind” EPA regulations on greenhouse gas emissions, including the Clean Power Plan that applies to emissions from existing power plants.  The Clean Power Plan currently is stayed pending the outcome of legal challenges to it, which could be decided any day by the U.S. Court of Appeals for the D.C. Circuit.  The Trump administration has asked the court to suspend its consideration of the legal challenges, which were argued en banc on September 27, 2016.  The executive order also disbands the Interagency Working Group on the Social Costs of Greenhouse Gases and withdraws its guidance on how the social cost of GHG emissions should be calculated. A copy of EO 13,783 is available online at: https://www.federalregister.gov/documents/2017/03/31/2017-06576/promoting-energy-independence-and-economic-growth

In a unanimous decision issued on March 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reversed a decision holding that the Endangered Species Act (ESA) could not constitutionally be applied to the endangered Utah prairie dog.  In November 2014 federal district judge Dee Benson had held that because the prairie dog was found only in southwestern Utah, Congress did not have the constitutional authority under the commerce clause to protect it.  Under this rationale, the more endangered a species is, the less would be the federal power to protect it.  In People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, the Tenth Circuit panel concluded that the ESA can constitutionally be applied to the prairie dog because even noncommercial, purely intrastate activity can be regulated when it is an essential part of a larger regulatory scheme that has a substantial effect on interstate commerce.  The court noted that most endangered species do not cross state lines but their protection is an essential part of a larger regulatory scheme to preserve biodiversity.  As a result of this decision, nine U.S. Courts of Appeals have upheld the constitutionality of the ESA and none has held it to be unconstitutional.  A copy of the court’s decision is available online at: https://www.ca10.uscourts.gov/opinions/14/14-4151.pdf

Surprise inspections by China’s Ministry of Environmental Protection (MEP) found widespread violations of regulations to control air emissions in seven northern Chinese cities.  On April 3 MEP’s website reported that many industrial plants have been fabricating real-time monitoring data and operating production lines that are supposed to be shut down during smog alerts.  In March an MEP inspection of 869 factories in Beijing, Tianjin, Hebei and Shanxi provinces found more than 200 environmental violations including excessive emissions and falsification of monitoring data. Starting on April 5, MEP has launched a year-long environmental inspection program in 28 major cities that will involve more than 5,600 government workers.

Even though China and the U.S. are the two largest emitters of greenhouse gases in the world, climate change was not discussed when Chinese President Xi Jinping met with President Trump for the first time on April 6-7.  While directing EPA to consider repealing its regulations to control GHG emissions, President Trump has not taken steps to pull the U.S. out of the Paris Agreement.

On April 5 Dean Mohammad Takshid of the University of Tehran Law School spoke to my Global Environmental Law Seminar by Skype.  Dean Takshid gave a terrific lecture on the environmental challenges facing Iran, including air pollution, desertification and water shortages.

Sunday, March 26, 2017

New Zealand and India Give Rivers Legal Personality, World Water Day, Beijing Closes Its Last Coal-Fired Plant, China Trip & World Baseball Classic (by Bob Percival)

During the last two weeks New Zealand and India have granted legal rights to rivers.  On March 15 legislation was adopted by the New Zealand parliament that grants the Whanganui River the same legal rights as humans.  The provision is part of legislation settling claims against the New Zealand government by the indigenous iwi people.  Under the legislation two guardians will be appointed to represent the river -- one selected by the iwi and the other by the Crown.  On March 20 the high court in Uttarakhand state in India, citing the New Zealand precedent, granted legal personality to the Ganges and Yamuna Rivers.  The judges declared that the rivers and their tributaries are “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities.”  The court appointed the head of the National Mission for a Clean Ganges and the state’s advocate general and chief secretary to represent the rivers in legal proceedings.  The decision is the product of public interest litigation brought against the states of Uttarakhand and Uttar Pradesh for failure to cooperate with federal government efforts to protect the Ganges.

March 22 was celebrated as World Water Day and the start of China Water Week.  The United Nations Children’s Fund reported that 1.8 billion people still use contaminated drinking water.  The Sustainable Development Goals adopted by the UN in 2015 include ensuring that everyone has access to safe drinking water by 2030.  On March 20 China’s Ministry of Environmental Protection reported that the nation had met its goals for improving water quality in 2016 with 67.8% of the country’s 1,940 monitoring stations reporting water quality within the top three tiers of the nation’s rating system.  On March 22 China’s State Oceanic Administration reported that 95% of the nation’s marine waters met the nation’s highest tier of the country’s four-tier system for assessing the quality of marine waters. China is in the process of having its provinces establish “river chiefs” with responsibility for preventing water pollution in watersheds

On March 18 Beijing officials closed the last remaining coal-fired power plant operating in the city.  The Huangneng Beijing Thermal Power Plant, owned by China Huaneng Group, opened in June 1999 in the eastern suburbs of Beijing.  It is the last of four coal-fired power plants in Beijing to be retired.  The other three were retired in 2014 and 2015.  Together they burned more than 8.5 million tons of coal annually.  With the plant’s closure, Beijing became the first large city in mainland China to no longer have coal-fired power plants, though it still imports some electricity generated by coal-fired power plants in Inner Mongolia and Hebei provinces.  Capital Retires its Last Coal-Fired Power Station, China Daily, March 20, 2017, at A7.

On March 24, U.S. President Donald Trump granted approval for construction of the Keystone XL pipeline.  Trump’s decision reverses former President Obama’s November 2015 denial of a permit for the pipeline to cross the Canadian border.  The pipeline still needs approval from Nebraska authorities, something that Trump promised to help expedite.

The University of Maryland Carey School of Law has announced a successor to Professor Jane Barrett, director of Maryland’s Environmental Law Clinic.  EPA attorney Seema Kakade will be the new director of the clinic beginning on July 1, 2017, when Professor Barrett retires.  Professor Kakade is an expert on air pollution issues who helped handle the prosecution of Volkswagen for its deceptive emissions-testing software.  She also formerly served as director of the Environmental Law Institute’s India program.

I have been in Shanghai for the past week while on spring break.  I made a presentation at NYU Shanghai on March 21 of some of the highlights of environmental law films my students have made over the years.  Two of my students (Chris Remavege and Taylor Lilley), who made the top films in the class last fall then presented their films, “Glass Half Full: Sustainable Vineyards” (about how wineries are trying to reduce their carbon footprints) and “A World in Retreat” (about adapation to sea level rise). On Wednesday I gave a lecture on international environmental law at Shanghai Maritime University.  On Thursday I was part of a panel discussion at NYU Shanghai on careers in environmental law and I gave a presentation on the Trump administration and environmental law to students from Shanghai Jiatong University’s Ko Guan School of Law.  

On the way to China I stopped in San Diego to attend World Baseball Classic games on March 17 & 18.  I saw the U.S. narrowly lose to Puerto Rico and then defeat the Dominican Republic in the game that advanced the U.S. team to the semifinals. After defeating Japan in the semifinals on March 21, the U.S. won the championship by defeating Puerto Rico on March 22.  This is the first time the U.S. has won the World Baseball Classic since it was started in 2006.  It is now played every four years.

Sunday, March 12, 2017

VW Guilty Plea, Pruitt on Climate, IBWC Investigating Sewage Spill, Beijing Taxis to Go Electric, Human Rights Lawsuits Against Canadian Mining Companies (by Bob Percival)

I just returned from Guadalajara, Mexico where my son and I attended World Baseball Classic (WBC) games on Friday and Saturday.  The WBC is an international baseball tournament that is held every four years.  We attended games between Puerto Rico and Venezuela and Mexico versus Puerto Rico.  The 16,000-seat Estadio de Baseball de los Charros de Jalisco was filled to capacity and the atmosphere was more like at the World Cup than a regular MLB game.  Puerto Rico won both games and will advance to the next round next weekend in San Diego.  I also checked another item off my bucket list by touring tequila distilleries around the town of Tequila, just north of Guadalajara.

On March 10 Volkswagen AG pled guilty in federal district court in Detroit to criminal charges for intentionally violating the Clean Air Act and obstruction of justice in connection with its cheating on vehicle emissions testing.  As announced earlier when its plea agreement was disclosed, the company will pay a $2.8 billion criminal fine.  It also was disclosed that VW will pay an added $1.5 billion civil penalty.  When the company is formally sentenced on April 21 the court is expected to appoint independent monitor to track its regulatory compliance for the next three years.  Seven VW executives have been indicted for their role in this deliberate fraud.  Only one has been arrested when he was caught trying to leave the U.S.  The others are in Germany and it is unclear whether that country will permit their extradition to the U.S. to face the criminal charges.  If no high-level VW executives go to jail, it will be a severe indictment of the effectiveness of criminal sanctions against corporations for environmental violations.

Last week during an interview on CNBC, EPA Administrator Scott Pruitt stated that he did not believe CO2 was a primary contributor to climate change.  Critics of Pruitt immediately pointed out that this contradicts what EPA's own website says.  Pruitt subsequently stated that he thinks Congress should decide whether EPA has the authority to regulate emissions of greenhouse gases, an issue that already has been resolved by the U.S. Supreme Court a decade ago in Massachusetts v. EPA, a decision the Court has twice reaffirmed.  For someone who claims to want to adhere strictly to the law, Pruitt has some unusual ideas.  In an editorial on March 12, the Houston Chronicle stated that "The Environmental Protection Agency serves a a pollution referee in the competition between industry and nature."  But it said that "everyone should start to worry" because Pruitt was acting as a referee who "runs out on the field, grabs the ball and stiff arms his way into the end zone." Carbon Referee, Houston Chronicle, March 13, 2017 at A29. The editorial noted that at an oil industry conference in Houston last week the Saudi Arabian Energy Minister Khalid Al-Falih emphasized the importance of investments to help shrink the carbon footprint of fossil fuels. "Petroleum is an international business, and whether Pruitt likes it or not, the world is moving ahead on carbon regulations.  The Trump administration cannot keep reality at bay.  The industry is already preparing itself for inevitable global warming rules.  Pruitt's refusal to get on they level has started to hurt long-term plans."

The U.S./Mexico International Boundary and Water Commission (IBWC) announced that it will investigate a massive spill of raw sewage that fouled beaches from Tijuana to San Diego.  The spill which was first spotted in early February, is estimated to have included more than 143 million gallons of raw sewage that spilled into the Tijuana River.  Although it originated in Mexico, the precise source and cause of the spill are unclear.

Municipal authorities in Beijing announced that the city taxi fleet will be replaced with electric vehicles.  Approximately 67,000 existing taxis in the city will be replaced with electric vehicles and all new taxis will be electric.  The move is being undertaken as a response to severe air pollution that has plagued the city this winter.  It also would be nice if the city prosecuted taxi drivers who disable seat belts in their vehicles and require taxi drivers and passengers to use them.

Friday March 3 was the one-month anniversary of the murder of Honduran environmental activist Berta Caceres.  Eight suspects remain in custody, two of whom were arrested in the last two months.  The U.S. Embassy in Honduras released a statement marking the anniversary of the murder stating that the U.S. government “remains committed to helping Hondurans build a future in which the underlying causes of impunity are resolved, and in which the guilty are held to account for their actions.”

In the last several months two Canadian courts have allowed lawsuits to proceed against Canadian mining companies for harmed caused in their operations abroad.  In late January the British Columbia Court of Appeal allowed a human rights lawsuit to proceed against Tahoe Resources Inc.  Plaintiffs in the lawsuit are seven Guatemalan protesters who were shot in April 2013 while protesting the Escobel mine owned by a subsidiary of Tahoe in southeastern Guatemala.  The court unanimously held that a lower court had erred in finding that Guatemala was a better forum for hearing the case. Garcia v. Tahoe Resources, Inc.  In October 2016 the British Columbia Supreme Court allowed a lawsuit alleging human rights violations by a Canadian company at a mine in Eritrea to proceed. Araya v. Nevsun Resources Ltd.

On February 28, 2017 President Donald Trump signed an executive order directing EPA Administrator Scott Pruitt to reconsider EPA’s “waters of the United States” rule.  This rule, which was promulgated in 2015, is a product of EPA’s long-time efforts to clarify the reach of federal jurisdiction under the Clean Water Act.  The rule was necessary because of the U.S. Supreme Court’s bizarre decision in Rapanos v. U.S., where the Court split 4-1-4.  Four Justices, led by Justice Scalia, stated that the Clean Water Act did not apply to wetlands that are adjacent to the non-navigable tributaries of navigable waters. Four Justices stated that the Act did apply.  Justice Kennedy, however, announced his own “significant nexus” test.  Although Kennedy’s test was rejected by all eight other Justices, it became the deciding factor and EPA’s rule was intended to determine when such waters have a significant nexus to navigable waters.  The new executive order directs EPA to consider adopting Justice Scalia’s “continuous surface connection” test that would radically restrict federal jurisdiction.  However, since this test was rejected by a majority of the Court (Kennedy and the four dissenters), EPA would be on shaky legal grounds if it adopts it.

Sunday, February 26, 2017

Chinese NGOs Hit with Fees for Losing Lawsuit, South Africa's First Climate Suit, Northeast Florida Environmental Summit, Golden Tree Awards, Bosnian Mine Waste Spill (by Bob Percival)

A Chinese court has imposed a fee of 1.89 million yuan ($275,000) on two environmental NGOs for an unsuccessful public interest lawsuit.  The Changzhou Intermediate People’s Court in Jiangsu Province imposed the fee on Friends of Nature and the China Biodiversity Conservation & Green Development Foundation.  They sued three chemical companies for polluting land that later was sold in 2011 to build the Changzhou Foreign Language School, which opened in 2015.  The pollution was discovered after hundreds of students at the school became sick.  The court found that soil and groundwater pollution was “now under control” at the site and rejected the plaintiffs claims that the companies should be required to do further remediation.  The fee imposed on the NGOs includes not only legal fees, but a percentage of the amount the groups were seeking be devoted to additional cleanup.  Michael Standaert, Chinese Ruling Threatens Environmental Public Interest Suits, International Environment Reporter, Feb. 24, 2017.  In the U.S. plaintiffs in public interest litigation are not required to pay legal fees unless their lawsuits are found to be frivolous in order to avoid discouraging such litigation.  The NGOs are appealing the court’s decision to the Jiangsu Supreme People’s Court.  A copy of the court’s decision is available in Chinese at: http://news.xinhuanet.com/legal/2017-02/08/c_129470823.htm

On Thursday March 2 the Pretoria High Court will begin to hear South Africa’s first climate change lawsuit.  The Center for Environmental Rights, representing Earthlife Africa Johannesburg in a lawsuit challenging the Ministry of Environmental Affairs’ decision to approve the proposed Thabametsi coal-fired power plant.  The plaintiffs are arguing that the plant should not have been approved without having completed an assessment of its impact on climate change. The defendants argue that there is no specific requirement that climate impacts be assessed in the process of environmental impact assessment.  

On Friday February 24 I delivered the keynote address at the 18th Northeast Florida Environmental Summit.  The summit was held at Florida Coastal School of Law in Jacksonville, Florida.  The theme of the summit was “Protecting Communities from Harm: The Economic and Environmental Implications of Managing Harmful Waste.”  The subject of my keynote was “The Future of Environmental Law in the Trump Administration.”  I noted that newly-confirmed EPA Administrator Scott Pruitt has emphasized two principal themes: keeping EPA from exceeding its legal authority and respecting state prerogatives.  Noting that Pruitt lost most of his lawsuits against EPA when he was the attorney general of Oklahoma, I argued that it would be best for him to let the courts decide what the law is with respect to the Clean Power Plan and the “waters of the U.S.” rule.  If Pruitt seeks to stop California from implementing more stringent environmental controls on greenhouse gas emissions, he would be indicating that he is mor interested in weakening environmental protections than promoting cooperative federalism.

On February 15 the University of Maryland’s Environmental Law Program held its annual Golden Tree award ceremony.  Awards were given to environmental law films made by students in my Environmental Law class last fall.  Based on voting by judges, the two top films were “Glass Half Full: Sustainable Vineyards” and “A World in Retreat.”  The former film examines how wineries are trying to shrink their carbon footprints.  The latter film examines how coastal communities are responding to rising sea levels.   Chris Remavege and Taylor Lilley will be showing these films at NYU Shanghai on March 21.

On February 21, I presented two guest lectures to officials from Anhui Province in China who are in the U.S. to learn about U.S. environmental law deals with soil contamination.  China has a huge problem of soil contaminated by pollutants and it is in the process of developing new laws and policies for responding to it.  The lectures were held at the University of Maryland College Park under the auspices of its Office of China Affairs.

Last week a massive landslide of waste from an open pit coal mine blocked the flow of a river near the town of Kakanj in Bosnia-Herzegovina.  The landslide created a lake that has now flooded a major highway connecting the cities of Sarajevo and Zenica.  Two smaller villages, Ribnica and Mramor have been largely destroyed by the landslide.

Saturday, February 11, 2017

Cambridge Conference, Air Pollution Alerts, Trump Takes Over, Canadian Court Protects Chevron Subsidiary (by Bob Percival)

From January 19-21 I participated in a conference at the University of Cambridge that brought together more than thirty global environmental law scholars who are authoring chapters in the Oxford Handbook of Comparative Environmental Law.  The conference, which included a dinner at King’s College on January 20, was hosted by Cambridge Professors Jorge Vinuales and Emma Lees, the book’s editors.  I am authoring a chapter on “Environmental Transitions: Forces Shaping the Evolution of Global Environmental Law.”  The conference was really terrific and I received some very helpful comments on my chapter. 

I spent two weekends in the heart of London where there were “highest level” air pollution alerts issued due to levels of PM10 being more than twice the legal limit. Paris also has been suffering from high levels of air pollution this winter.  Paris officials made public transportation free during the alerts.  They also assigned labels to each make and model of car based on the amount of pollution it emits, enabling them to ban the most polluting vehicles from the road during bad air days. Residents of Ulaanbaatar, Mongolia also held a large demonstration to protest air pollution with levels of particulates reaching 80 times the limit recommended by the World Health Organization.

On January 30 President Trump issued Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs.  The order mandates that agencies repeal two rules for every new rule they promulgate and it specifies that the repealed rules have to reduce costs to industry by at least as much as the new rule costs.  I have written a blog post critical of the executive order, which was posted on the American College of Environmental Lawyers blog on February 8.  It notes that the order is fundamentally flawed because it focuses solely on regulatory costs without consdiering the benefits of regulation.  Is President Trump Repeating Reagan’s Missteps on Regulatory “Reform?” American College of Environmental Lawyers Blog, Feb. 8, 2017, available online at: http://www.acoel.org/post/2017/02/08/IS-PRESIDENT-TRUMP-REPEATING-REAGAN’S-MISSTEPS-ON-REGULATORY-“REFORM”-.aspx  I also posted a short article in an online journal: “Environmental Law in the Trump Administration,” 4 Emory Corporate Governance and Accountability Review, Presidential Inauguration Issue, January 2017, online at: http://law.emory.edu/ecgar/content/volume-4/issue-special/essays-interviews/environmental-law-trump-administration.html

On January 20 a trial court in Ontario, Canada ruled that plaintiffs seeking to collect on the $9 billion judgment against Chevron for oil pollution in Ecuador cannot recover from the assets of the company’s subsidiary in Canada.

Sunday, January 8, 2017

AALS Conference, China Plans $360 Billion Investment in Renewables, Environmental Crime in China (by Bob Percival)

From January 3-7, I attended the 111th annual meeting of the American Association of Law Schools in San Francisco.  Several panels at the conference focused on how the Trump administration is likely to seek legal and policy changes in various areas, but few speakers could be confident in their predictions.  One of the most interesting panels was a “hot topics” program on the Juliana v. United States litigation in the U.S. District Court for the District of Oregon.  Brought on behalf of 21 youths from across the U.S., the lawsuit argues that the federal government has violated younger generations’ constitutional rights to life, liberty and property and failed to protect essential public trust resources.  Having survived a motion to dismiss, the plaintiff are hoping to go to trial in fall 2017 to litigate whether the federal government has done enough to combat climate change.  Legal documents filed in the litigation are available online at: https://www.ourchildrenstrust.org/lawlibrary/

On Thursday January 5, I joined many professors from the Environmental, Natural Resoures, Energy and Animal Law sections on a field trip to the Greater Farallons National Marine Sanctuary off the coast of San Francisco.  While few whales were sighted during the trip (this is not the time of their migration), it was a beautiful, sunny day for a boat trip.

Last week China’s National Energy Administration announced that the country plans to invest 2.5 trillion yuan ($360 billion) in renewable energy sources between now and 2020.  This investment is expected to reduce emissions of CO2 by 1.4 billion tons, SO2 by 10 million tons, and NOX by 4.3 million tons. By 2020 installed renewable energy capacity is expected to account for 50% of new electricity generation.  While this investment will help reduce coal consumption, coal will still constitute 58% of the nation’s energy mix by 2020. Zheng Xin, Renewables Investments Surge to Help Clear the Air, China Daily, Jan. 6-8, 2016, at 18.

China’s Supreme People’s Court has issued a new interpretation of how criminal prosecutions for environmental violations should be handled.  The interpretation covers how courts should handle falsification of data, illegal dumping of hazardous waste, and how certain environmental crimes are defined. It also provides direction on which crimes deserve severe punishment, such as interfering with investigations related to environmental emergencies, for example, and which would merit lighter punishment, such as if an individual took quick action to remediate or resolve a spill incident.” Michael Standaert, China’s Top Court Cracks Down on Environmental Crime, BNA International Environment Reporter, Jan. 4, 2017.  

Despite increased emphasis on criminal prosecutions for environmental violations, China Youth Daily was critical of the outcome of a prosecution before the Yangzhou Intermediate People’s Court.  Citing the prosecution of Dystar Group for discharging 698 tons of waste acid into a canal without pretreatment, the journal stated: “The damage done by its illegal deeds are beyond measurement, but the punishments for crimes related to environmental pollution are rather light in this country.  The court only fined Dystar 20 million yuan, which is hardly enough to prevent it from committing similar misdeeds again, and certainly far from enough to mend the environmental damage it had already done.” The journal noted that the company had saved substantial amounts of money by failing to treat the waste and that there was no indication that any managers had been held criminally responsible, despite efforts to cover up the violation and destroy evidence.  Quoted in “Heavier Penalties Will remind Firms to Meet Eco-Standards,” China Daily, Jan. 6-8, 2017, at 16.

Last week the Center for Biological Diversity (CBD) filed a notice of intent to sue the U.S. Department of Commerce for failure to take action to require Mexico to protect the totoaba, a small porpoise that is critically endangered. CBD is asking that Mexico be certified as a nation that has diminished the effectiveness of the Convention on International Trade in Endangered Species (CITES) pursuant to the Pelly Amendment to the FIshermen’s Protective Act.

Amazon Watch announced last week that Rosa Moreno, a community nurse in San Carlos, Ecuador who assisted victims of oil pollution, has died of cancer.  In a statement dated January 4, Amazon Watch said: “She loved and served her community as they suffered from the many diseases caused by oil contamination, corporate and government neglect. She fought for justice in the case against Chevron. We vow to continue to seek justice for Rosa and all who have suffered from this abuse.”

Monday, January 2, 2017

Top Ten Global Environmental Law Developments in 2016 (by Bob Percival)

Now that the world has welcomed in 2017 and said good riddance to 2016, it is time for the annual review of the most significant developments in global environmental law during the past year.  Here they are, in no particular order.

1. On November 8, voters in the U.S. elected as president Donald Trump, a candidate who once pledged to abolish the Environmental Protection Agency (EPA) and to “cancel” the Paris climate agreement.  Although his opponent Hilary Clinton received more than 2.8 million more votes than Trump and won the popular vote by a margin of 48% to 46%, Trump carried enough battleground states to win the presidency in the electoral college.  Trump’s nomination of a long-time fierce critic of EPA, Oklahoma attorney general Scott Pruitt, to be EPA Administrator signals that there will be fierce efforts to roll back U.S. environmental regulations.  I have published a piece on the Pruitt nomination in The Conversation, available online at: https://theconversation.com/can-legal-activist-scott-pruitt-undo-clean-air-and-water-protections-as-head-of-epa-70127

2. The Paris Agreement on climate change entered into force on November 4, 2016, 30 days after  it was ratified by at least 55 parties that account for 55% or more of global greenhouse gas emissions.  A total of 120 of the 197 parties to the agreement have now ratified it.  An updated list of the parties and their ratification status is available online at: http://unfccc.int/paris_agreement/items/9444.php  The first Meeting of the Parties to the Paris Convention was held in Marrakech, Morocco in November 2016. 

3.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, agreed to a global phase out of hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances. It is estimated that these measures alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy. The Montreal Protocol already has been responsible for greater reductions in greenhouse gas emissions than even the Kyoto Protocol.  The new measures will help reduce the impact on climate change of the rapid growth of air conditioning use in developing countries.  Global cooperation on climate change also resulted in the 191 countries in the International Civil Aviation Organization adopting a carbon offsetting scheme for international aviation.

4. Despite new measures to upgrade its environmental laws, China continued to suffer horrendous bouts of air pollution that required the issuance of red alerts, shutting down schools and factories.  India also experienced horrendous episodes of air pollution. Epidemiologists calculated that global deaths from exposure to air pollution now total 5.5 million people per year. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  

5. Countries continued to expand the use of specialized environmental courts.  In an update to their 2009 study of environmental courts and tribunals (ECTs), Rock and Kitty Pring found that there are now more than 1,200 green tribunals in 44 countries and 20 additional countries are considering adopting ECTs.  The new study by the Prings for the UN Environment Programme is available online at: http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y. There are now more than 500 environmental judges in China and I had the privilege last June of addressing more than 200 of them during a judicial training program in Beijing.

6. Globalization no longer appeared to be an inexorable force.  The volume of global trade was unchanged in the first quarter of 2016 and then declined by 0.8 in the second quarter as trade liberalization efforts came under fire.  Both U.S. presidential candidates rejected the Trans Pacific Partnership and British voters surprised the world by voting to leave the European Union.  A long-time expert in adjudication of trade disputes expressed the view that the heyday of investor-state dispute resolution provisions may have passed.

7. Global pressure to upgrade environmental standards continued, as illustrated by the U.S. Congress overwhelmingly voting to adopt the Frank Lautenberg Chemical Safety for the 21st Century Act in June 2016.  Signed into law by President Obama, the new legislation is the first comprehensive updating of the Toxic Substances Control Act that was adopted in 1976.  Despite legislative gridlock in the U.S. Congress on most environmental issues, the EU’s REACH program and advances in chemical control legislation in other countries made it abundantly clear that the U.S. law needed to be reformed.  

8. The effects of climate change became more apparent as heat records were broken and sea level rise continued.  Global temperatures in 2015 were the highest on record, but the first eleven months of 2016 were even hotter.  See: https://www.ncdc.noaa.gov/sotc/  Sea level rise exacerbated tidal flooding, leading to the discovery in November of an octopus floating in a parking garage in Miami.  Accelerated melting of the Antarctic and Greenland ice caps increased scientific concern over climate change.

9. Efforts to hold multinational corporations accountable for environmental harm caused in developing countries continued with mixed success.  The never-ending litigation against Chevron for oil pollution in Ecuador continued.  Chevron won a big victory when the U.S. Court of Appeals for the Second Circuit upheld a RICO judgment against Ecuadoran plaintiffs and their lawyers, but Canadian courts allowed the plaintiffs to continue efforts to collect against Chevron subsidiaries in that country.  Litigation against Royal Dutch Shell for oil pollution in Nigeria continued in British and Dutch courts.  Efforts to hold multinational corporations accountable for harm caused in developed countries were more successful as Volkswagen reached multi-billion dollar settlements and faced criminal charges for its extensive use of emissions testing defeat devices.

10.  Efforts to improve the capacity of courts to hear environmental cases increased.  A new Global Judicial Institute for the Environment was launched in April at the first World Congress on Environmental Law in Rio, spearheaded by Brazilian Supreme Court Justice Antonio Benjamin, chair of the World Commission on Environmental Law.  The U.S. Supreme Court became more politicized as it intervened in unprecedented fashion to stay EPA’s Clean Power Plan by a 5-4 vote on February 9, four days before anti-environmental Justice Antonin Scalia died suddenly.  In another uprecedented move, the U.S. Senate, controlled by President Obama’s opponents, refused even to consider his nomination of moderate Merrick Garland, chief judge of the D.C. Circuit, to replace Scalia.  As a result, incoming President Donald Trump will nominate a new successor to Scalia and a huge confirmation battle is likely.  New legal theories seeking judicial intervention to combat climate change were tested in court. In November a federal judge in Oregon refused to dismiss a suit claiming that government failure to combat climate change has “so profoundly damaged our home planet” that it threatens “fundamental constitutional rights to life and liberty.” See Juliana v. U.S., online at: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf