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, 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 


Sunday, December 18, 2016

Air Pollution Red Alerts in China, Gates Launches $1 Billion Clean Energy Fund, EPA Fracking Study, First U.S. Offshore Wind (by Bob Percival)

China’s Ministry of Environmental Protection reported that 22 Chinese cities, including Beijing, had declared a “red alert” because of horrendous air pollution on Friday Dec. 16. Nurseries and primary schools were closed, road work was suspended, high-emission vehicles were banned from the roads, and some factories were required to slow or shut down production.  This was the first red alert for Beijing since December 2015.  Several days before, citizens protesting air pollution had been arrested in Chengdu after placing masks over statues.

Billionaire Microsoft founder Bill Gates announced the launch of a $1 billion private fund to invest in new clean energy projects.  Called Breakthrough Energy Ventures, the fund will invest in “scientific breakthroughs that have the potential to deliver cheap and reliable clean energy to the world.”  Other investors in the fund include former New York City mayor Michael Bloomberg, Alibaba founder Jack Ma, and Amazon CEO Jeff Bezos.  A year ago Gates put together the Breakthrough Energy Coalition of 20 billionaires who committed to investing in new forms of energy.

Last week EPA issued the final version of its five-year study of the impact of hydraulic fracturing on groundwater.   The draft report EPA had issued for public comment a year ago stated that fracking has not “led to widespread, systemic impact on drinking water resources in the United States.”  The new final report deletes this conclusion and states that fracking “can impact drinking water resources under some circumstances” with effects that “can range in frequency and severity” depending on the circumstances.  EPA finds that “significant data gaps and uncertainties” preclude it from “calculating or estimating the national frequency of impacts.”  The report is being viewed by many observers as supporting better regulation of fracking, rather than an outright ban.

After four months of testing, the first offshore wind project in the U.S. became operational on December 12.  The Block Island Wind Farm off the coast of Rhode Island consists of five turbines that generate 30MW of electricity.  The project, which took two years to complete, was completed on-time and on-budget.  It is the first offshore wind farm outside of Europe to become operational.

Last week I reported that president-elect Donald Trump had selected Cathy McMorris Rodgers to be his Secretary of Interior.  That report proved to be premature.  Reportedly, Trump’s sons Donald Jr. and Eric helped convince him instead to select Montana congressman Ryan Zinke.  Zinke, who is a former Navy Seal, is serving his first term in Congress. While Rodgers had a 5% voting rating from the League of Conservation Voters, Zinke’s rating from the group is 3%.  However, Zinke reportedly is not in favor of widespread transfers of federal land to states or private interests.

Sunday, December 11, 2016

World Bank Conference, Trump Picks Pruitt for EPA, HFC Phaseout, ICAO Airline Emissions Agreement (by Bob Percival)

On Monday I spoke on the opening day of the World Bank’s week-long conference on Law, Climate Change and Development.  The conference was part of the bank’s Law, Justice and Development Week.  It was held at the bank’s headquarters in Washington, D.C.  The conference opened with a keynote address by Achim Steiner, former head of the United Nations Environment Programme.  Both Steiner and bank president Jim Yong Kim expressed hope that global momentum to address climate change will not be derailed by political developments.  While they did not specifically mention the U.S. or the election of Donald Trump, it was clear that this was on the minds not only of the speakers but of most of the members of the audience.

I was on a panel on “Which Climate Change Regime Are You?”  Amir Sokolowksi from Legal Atlas presented his fascinating work comparing the framework laws that different countries are adopting to respond to climate change.  He examined the laws adopted by Sri Lanka, Kenya, and Guatemala.  I responded to his paper by explaining why the U.S. tried, but was unable, to adopt a framework law on climate change.  Searching the database I have compiled of the text of the major federal environmental statutes for my annual Statutory & Case Supplement, I found only one reference to “climate change” in the text of existing U.S. laws.  Yet the U.S. has managed to put together a robust program to control emissions of greenhouse gases.

It has been months since my last blog entry and the political earthquake that was the U.S. presidential election occurred during this period.  This week president-elect Donald Trump announced that he had selected Oklahoma Attorney General Scott Pruitt to be EPA Administrator and Washington Congresswoman Cathy McMorris Rodgers to lead the U.S. Department of Interior.  Pruitt is a climate change denier and he has been one of the harshest critics of EPA. Rodgers has a 5% rating from the League of Conservation Voters.  Both nominations, which must be confirmed by the Senate, indicate that Trump is planning aggressive attempts to roll back environmental protections.  

Much has happened in the last four months since my last blog entry.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, adopted far-reaching measures to phase out hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances, on a global basis. It is estimated that this measure 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.

At the beginning of October the International Civil Aviation Organization (ICAO), meeting in Montreal, adopted a plan to require airlines to offset the greenhouse gas emissions from their international flights beginning in 2020.  This also is a remarkable achievement for global environmental law.  It was spawned in large part by the EU’s efforts to require airlines flying to and from Europe to pay emissions charges.  Although Russia, India, China and the U.S. fiercely resisted the EU’s efforts, they were upheld by the European Court of Justice and suspended only after the ICAO agreed to convene negotiations for a global agreement.

Saturday, August 6, 2016

Back after Summer Hiatus: China, Norway, Vermont, China (by Bob Percival)

This has been a very busy summer, which has spawned my first two-month hiatus in updating this blog.  During the week of June 13 I was in Beijing where I spoke at a conference on New Directions in Environmental Governance and participated in a judicial training program for more than 200 judges from China's environmental courts, sponsored by the Supreme People's Court and Client Earth.  Further details are available at the University of Maryland Carey School of Law website at: https://www.law.umaryland.edu/about/features/feature_details.html?feature=467

The following week I was in Oslo, Norway for the 14th Colloquium of the IUCN Academy of Environmental Law.  Four of my students made presentations at the conference and I spoke on the "Top Judicial Decisions in the History of Global Environmental Law."  Further details are available at: https://www.law.umaryland.edu/about/news_details.html?news=1734

I've just finished two weeks teaching Comparative U.S./China Environmental Law at Vermont Law School.  This was my fifth year teaching the course.  In a few hours I will leave for China to take some of my Vermont students on an environmental field trip.  I will be back on August 21 in time to start fall semester classes on August 22.

After I am back I plan to give this blog a new look with lots of new photos.

Saturday, June 11, 2016

TSCA Reform Legislation Enacted, Supreme Court Decides Hawkes Case, Modi Visit, Vietnam Fish Kills, China Trip (by Bob Percival)

On June 7 the U.S. Senate by a voice vote passed the Frank Lautenberg Chemical Safety for the 21st Century Act.  The legislation, which now goes to President Obama for his signature, had passed the U.S. House by a vote of 403-12 on May 24.  In 2015 both houses had passed separate versions of the legislation, which comprehensively reforms the Toxic Substances Control Act (TSCA). This is the first comprehensive updating of TSCA since it was first adopted in 1976.  The legislation is the product of a bipartisan agreement initially announced in May 2013 by Democratic Senator Frank Lautenberg and Republican Senator David Vitter.  The final legislation is named in tribute to Lautenberg, who died suddenly less than two weeks after reaching the agreement.  New Mexico Senator Tom Udall became the chief Democratic champion of the legislation after Lautenberg’s death.  The legislation requires EPA to set risk-based priorities for testing and evaluation of chemicals and it requires the chemical industry to contribute funding to support such efforts.  It was supported by both the chemical industry and major environmental groups, including the Environmental Defense Fund.  A few environmentalists and some state officials complained that the legislation was not stringent enough and could preempt state regulations.  However, it is widely agreed that the legislation was far better than the existing law, which puts too great a burden on EPA to use cost-benefit to justify regulation and preempts state regulation of chemicals regulated by EPA.  

On May 31 the U.S. Supreme Court ruled unanimously that jurisdictional determinations (JDs) by the U.S. Army Corps of Engineers that property contains wetlands subject to § 404 of the Clean Water Act are judicially reviewable.  The decision was not a surprise, even though most U.S. Courts of Appeals had ruled that the issuance of a JD did not trigger judicial review.  In a majority opinion written by Chief Justice Roberts, the Court held that the issuance of a JD is “final agency action” that may be challenged in court under the Administrative Procedure Act because it is definitive in nature and has direct legal consequences.  The Chief Justice noted that a memorandum of understanding between the Corps and EPA makes a JD binding on both agencies for five years.  An extraordinary concurring opinion by Justice Kennedy, joined by Justices Thomas and Alito,  harshly criticized the “ominous reach” of the Clean Water Act (CWA) and stated that the CWA “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” 

Each summer Wolters Kluwer publishes a new edition of my book Environmental Law: Statutory and Case Supplement.  I am pleased to announce that the 2016-17 supplement has now been sent to the copyeditor and will be in bookstores the first week in August.  This year’s supplement includes not only the Supreme Court’s Hawkes decision, but also the Frank Lautenberg Chemical Safety for the 21st Century Act.

During Indian Prime Minister Nerendra Modi’s visit to the U.S. this week, President Obama pushed hard to encourage the Indian leader to accelerate the development of renewable energy to slow the rise of greenhouse gas emissions in India. Both leaders affirmed their commitment to the Paris Accord and pledged to reach agreement on measures to phase out HFCs, a potent greenhouse gas using the Montreal Protocol on Substances that Deplete the Ozone Layer.  The two leaders set a one-year deadline for concluding a deal for the U.S. to sell six, new commercial nuclear reactors to India.  A major obstacle to the deal is an Indian law that would hold the vendors of such reactors liable for damages in the event of a nuclear accident.

Public protests continue in Vietnam over massive fish kills from pollution believed to come from a new Taiwanese steel plant.  The fishing industry along a 120-mile swath of coastline has been devastated and many people have become ill from eating contaminated fish during the last two months.  The protests continue despite government efforts to suppress them, including hundreds of arrests and beatings of demonstrators.  Last April a representative of the steel company outraged fisherman by stating, “You have to decide whether to catch fish and shrimp or to build a modern steel industry. Even if you are the prime minister, you cannot choose both.”.”Richard C. Paddock, Toxic Fish in VIetnam Idle a Local Industry and Challenge the State, N.Y. Times, June 8, 2016.

Next week I will be in China to speak at two conferences in Beijing.  On Tuesday June 14 I will be at Tsinghua University where Professor Zhao Huiyu of Shanghai Jiatong University’s KoGuan Schoo of Law and I will make a presentation comparing environmental federalism in China and the U.S.  This conference is sponsored by the University of Chicago/Tsinghua China Center.  On Thursday June 16 I will be speaking to Chinese judges at the National Judge’s College for a program organized by the Supreme People’s Court and the UK-based NGO ClientEarth.  I will be speaking on the role of the U.S. Supreme Court in shaping the development of modern environmental law.