10th IUCN Academy of Environmental Law Colloquium

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

March 2013 Environmental Field Trip to Israel

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

Workshop with All China Environment Federation

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

Winners of Jordanian National Moot Court Competition

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

Thursday, March 26, 2015

March 25 Oral Argument in U.S. Supreme Court on EPA Mecury & Air Toxics Standards (by Bob Percival)

I returned from the Middle East on Monday.  Daily student blog posts from our environmental field trip to study water issues are available at my parallel blog (www.globalenvironmentallaw.com).

Yesterday I attended the Michigan v. EPA oral argument in the U.S. Supreme Court with a group of my students (who got in line before 6AM in order to get seats). The case involves a challenge to EPA's historic regulations to limit mercury emissions from power plants.  The specific question the Court is considering is whether EPA is required to consider costs when it decides to regulate emissions of hazardous air pollutants from powerplants.  The statute requires EPA to regulate these pollutants if it determines regulation to be “necessary and appropriate.”  Representatives of old, coal-fired powerplants argue that “appropriate” requires EPA to base its regulatory determination on cost-benefit analysis.   As usual, Justice Kennedy will be the key to the outcome.  His opening line that “’appropriate’ is a capacious term” and his pointed question to the industry petitioners asking whether cost-benefit analysis is required whenever the word “appropriate” appears in the statute, suggest he is persuadable by the government.
Both Kennedy and Chief Justice Roberts seemed concerned about the cost of the regulations.   The Chief seemed dismissive of EPA’s conclusion that the regulation would have overwhelming net benefits because most of them were “co-benefits” derived from reductions in other pollutants. He suggested this could represent an illegitimate “end run” by EPA around other restrictions in the Act. 
Paul Smith, who clerked at the Court the same Term I did, was terrific.  He was particularly effective in responding to Justice Kennedy’s question about cost, and indicated that most of the costs already had been incurred by utilities who plan to comply with the rule.  It was so refreshing to see someone representing industry groups defending a n EPA regulation in order to keep a level playing field.  While this is useful for EPA in this case, it may add a bit of force to the industry argument in the Murray Energy case (being argued in the D.C. Circuit on April 16) that given long lead times for capital projects courts should intervene even before regulations (the Clean Power Plan regs) are issued.  The panel that has been assigned to hear that case (Judges Henderson, Griffith and Kavanaugh) portends a potentially surprising (even if temporary) defeat for EPA in what should be an easy case because there is no final agency action yet.
Justices Scalia and Alito clearly have bought into the Tea Party rant that EPA can do no right (no surprise). At several points in the argument yesterday Justices Kagan and Sotomayor were directly (and effectively) debating them.  Justice Scalia tried to characterize an argument Justice Breyer made as an effort to rescue EPA by concocting an entirely new argument (which it was not).  The editors of the Wall Street Journal seized on Scalia’s claim in an editorial today (“Surprise at the Supreme Court: Justice Breyer Pulls a Fast One to Rescue EPA’s Mercury Rule”), which is online at: http://www.wsj.com/articles/surprise-at-the-supreme-court-1427325513?mod=wsj_review_&_outlook).  The Journal yet again uses its editorial page to file its own post-argument brief, here trying to convince Kennedy’s chambers that EPA is so clearly wrong legally that Justice Breyer had to try to rescue them.
After rejecting other creative assaults on the Clean Air Act in American Trucking and EME Homer City, the Supreme Court would be venturing into new territory if it rules against EPA.  As a practical matter, however, it would not raise a significant legal bar to EPA reissuing the regulations.  But it would delay them for several years and reward the industry laggards who wish to keep the aging, big dirties operating as long as possible.

Sunday, March 15, 2015

Global CO2 Emissions Stop Rising in 2014, Surge in Chinese Environmental Cases, Fourth Anniversary of Fukushima Disaster, Middle East Trip (by Bob Percival)

Global emissions of carbon dioxide (CO2) stopped increasing last year, according to the International Energy Agency (IEA).  This was the first time in 40 years that a halt in the growth of CO2 emissions occurred in the absence of a global economic decline.  CO2 emissions remained at a level of 32.3 gigatonnes, the same as in 2013, despite a 3% increase in global economic growth.  The IEA described the development as “a real surprise” that shows that efforts to control greenhouse gas (GHG) emissions may have been more successful than anticipated.  Growing efficiency in the use of energy in developed countries and China’s slower economic growth contributed to the halt in rising CO2 emissions.  Pilita Clark, Climate Boost as CO2 Emissions Growth Grinds to a Halt, Financial Times, March 13, 2015, at 1. Last year China’s consumption of coal declined by 2.9%, according to government statistics. This development may improve the prospects for a new climate accord being reached in December when representatives of the nations of the world meet in Paris for the next climate Conference of the Parties.

The Supreme People’s Court of China reported a surge in environmental cases filed in the country’s courts in 2014.  In its annual report released on March 12, the Court said that 16,000 cases involving environmental violations were filed last year, an 850% increase over 2013.  A total of 3,331 cases seeking civil damages for pollution were filed in 2014, an increase of more than 50% from 2013.  Te-Ping Chen, China Sees More Cases Against Polluters, Wall St. J., March 13, 2015, at A11.  In a news conference held today at the end of the annual meeting of the National People’s Congress, Premier Li Kequiang conceded that the progress that the Chinese government has made in environmental protection “still falls far short of the expectation of the people.” Noting that he had stated last year that “the Chinese government would declare war against environmental pollution,” Li stated that the government remains “determined to carry forward our efforts until we achieve our goal.” He avoided any mention of the film “Under the Dome,” which the Chinese government ordered removed from the internet.  On March 7 Chinese environment minister Chen Jijing, who had praised the film, made no mention of it at what reporters described as a “carefully scripted news conference.”  Edward Wong & Chris Buckley, Chinese Premier Vows Tougher Regulation on Air Pollution, N.Y. Times, March 15, 2015.  At his March 15th news conference, Premier Li stated: “All acts of illegal production and emissions will be brought to justice and held accountable.  We need to make businesses that illicitly emit and dump pay a price too heavy to bear.  We must ensure that the enforcement of the environmental protection law is not a stick of cotton candy but a powerful mace.”

Wednesday March 11 marked the fourth anniversary of the Fukushima Daiichi nuclear disaster in Japan.  Approximately 79,000 people who lived in the hundreds of square miles that remain off-limits to habitation remain displaced.  However, efforts are being made to decontaminate the area, unlike the area around Chernobyl which remains an exclusion zone nearly 29 years after that deadly accident.  Approximately $13.5 billion has been spent on efforts to decontaminate the area around the reactor.  More than 5.5 bags of contaminated material have accumulated though it is unclear where it ultimately will be stored.  Julie Makinen, After 4 Years, Fukushima Cleanup Remains Daunting, The Jerusalem Post, March 15, 2015, at 17. Due to the Fukushima disaster, Japan’s 48 nuclear reactors remain offline, which has spurred Japanese utilities to build new coal-fired powerplants.  On March 12 plans to build a 1.3 gigawatt coal-fired powerplant in Akita prefecture were announced by Kansai Electric Power Company and the Marubeni Corporation. This increases the number of new coal-fired powerplants in Japan announced in 2015 to seven.  More are expected to be announced by other utilities. Mari Iwata, In Japan, Coal Makes Comeback at Utilities, Wall St. J., March 13-15, 2015, at 22. 

China’s National Development and Reform Commission (NDRC) has approved the construction of two new nuclear powerplants in Liaoning.  These are the first new nuclear plants approved since China lifted a post-Fukushima moratorium on nuclear construction in 2012.  China currently has 22 nuclear powerplants in operation and a similar number under construction.  Last week the European Commission (EC) upheld a decision by Euratom, the EU’s nuclear watchdog, to veto a plan by Hungary to allow Russia’s state-owned nuclear construction company Rosatom to build two 1,200MW nuclear reactors in Paks, 75 miles south of Budapest.  Citing the importance of avoiding increased reliance on Russia for energy supplies, the EC refused to approve the plan’s requirement that nuclear fuel be imported exclusively from Russia. Andrew Byrne & Christian Oliver, Brussels Veto of Hungarian Nuclear Deal Set to Inflame Tensions with Russia, Financial Times, March 13, 2015, at A1.

On March 11 Professor Suzan Gokalp Alica from Gazi University in Ankara, Turkey gave a lecture on Turkish environmental law to my seminar on Global Environmental Law. She noted that many pieces of environmental legislation have been enacted in response to EU directives.  Although Turkey is not yet a member of the EU, it hopes eventually to join the Union.  Three lawyers from Turkey also came to class.  Prior to class the group and I watched the finals of the Myerowitz Moot Court competition.  They were surprised that the competition was judged by real like judges, including judges from federal district court and the U.S. Court of Appeals for the Fourth Circuit.  Judges rarely, if ever, visit law schools in Turkey, they noted.

I am now in Tel Aviv.  In a few hours I will be meeting Maryland students and Julie Weisman from the Water Resources Action Project at Ben Gurion Airport.  We will be spending the next week visiting water recycling projects in Israel, Jordan, and the Palestinian Territories.  The students are from Maryland’s Carey School of Law, the Smith School of Business, and Maryland’s nursing and dental schools.  They will be researching greywater recycling.

Sunday, March 8, 2015

Stegner Lecture & Symposium, Internet Video Rocks China, Keystone XL Veto Upheld, Occidental/Achuar Settlement, Maryland/Pace Alliance (by Bob Percival)

On Wednesday March 4 I delivered the annual Wallace Stegner Lecture at the University of Utah’s S.J. Quinney School of Law’s Stegner Center in Slat Lake City.  The topic of my lecture was “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Cooperation.”  I reviewed the history of efforts to control air pollution in the United States and why their success has become the envy of environmentalists in China and India.  Concluding that “clean air has become a global imperative,” I argued that the U.S./China Climate Agreement announced in November 2014 increases the chances for a new global climate treaty being signed in Paris next December.  The lecture, which will be published by the University of Utah Press, was webcast.  A video of the lecture is now available online at: https://www.youtube.com/watch?v=ECELQAf3evA#t=4501

On Thursday and Friday I participated in the University of Utah’s annual Stegner Symposium.  I spoke on the opening panel on Thursday on “Getting the Lead Out: An Unusual Global Environmental Success Story.” My talk reviewed the incredible political twists and turns that led to the prohibition of lead additives in gasoline in the U.S., which now has been adopted in all but six countries of the world. This has dramatically reduced levels of lead in children’s blood, producing an estimated $2.4 trillion in net benefits according to the United Nations Environment Programme.

The topic of this year’s Stegner Symposium was “Air Quality: Health, Energy & Economics.”  This was an appropriate topic because Salt Lake City is afflicted by severe air pollution, particularly in winter months when inversions trap pollutants in the valley.  Several scientists and doctors who spoke at the symposium explained the severe health consequences of exposure to air pollutants.  They noted a just-released study demonstrating how reductions in air pollution in the Los Angeles Basin have significantly improved lung functions in children.  See Erica E. Phillips, “Kids Lungs Improve as LA Smog Falls,” Wall Street Journal, March 5, 2015, at A2.  One physician noted that these improvements in lung function could translate into five years longer life expectancy for children. Wood smoke contains particularly dangerous air pollutants and Utah authorities have proposed bans on wood burning during winter months, which has generated considerable opposition.

One speaker cited Mexico City’s “Hoy No Circula” program, which banned the use of certain automobiles on Saturdays, as a politically costly effort to reduce air pollution.  He explained that pollution levels already were lower on weekends when many poor people like to drive to visit relatives.

Jeff Holmstead, who was the EPA Assistant Administrator for Air and Radiation during the Bush Administration, argued that 95% of the benefits produced by air pollution controls have been the product of reductions in small particulates (PM 2.5).  He argued that it would be better simply to focus on controlling PM 2.5 rather than tightening controls on emissions of other pollutants such as mercury.   

Last week China was rocked by a new video posted online by Chai Jing, a former CCTV presenter.  Called “Under the Dome,” the video highlights China’s severe air pollution problems and Ms. Chai’s concern for the health effects of pollution on her unborn child.  In 48 hours the film was viewed more than 100 million times. The film, which reportedly cost Ms. Chai 1 million RMB ($160,000) to produce, emulates the style of “An Inconvenient Truth” with Chai appearing before an audience and projecting horrendous scenes of air pollution on a screen behind her.  Chen Jining, China’s new Minister of Environmental Protection, reportedly contacted Ms. Chai to congratulate her on the film, noting that it could be “China’s Silent Spring.”  Authorities from China’s central government, who have encouraged some citizen efforts to put pressure on companies and local authorities to reduce pollution, did not immediately try to censor the film.  After it had generated more than 260 million comments on Chinese social media, Party censors instructed the media not to continue reporting on the film and they later removed it from the internet on China.  However, the film remains available on foreign websites and it has been translated into English.  The film, which lasts an hour and 44 minutes, is now available on You Tube with English language subtitles at: https://www.youtube.com/watch?v=T6X2uwlQGQM.

On March 4 the U.S. Senate fell four votes short in an attempt to override President Obama’s veto of legislation passed by the Republican-controlled Congress that would approve the Keystone XL pipeline. This was not unexpected as the Republicans knew when the legislation was passed that they did not have the votes to override the veto, which requires a two-thirds vote in each house of Congress.

On March 5 it was revealed that Occidental Petroleum had agreed to pay compensation to five Achuar communities in Peru’s northern Amazon region.  The coil company was sued by the indigenous groups and Amazon Watch, who were represented by Earth Rights International, for oil contamination that occurred over a three decade period ending in 2001.  The case initially was dismissed by a federal district court on forum non cenveniens grounds, a decision that was reversed by the U.S. Court of Appeals for the Ninth Circuit.  I would like to thank Michelle Salomon, one of my former students who worked on the case for EarthRights International, for bringing this to my attention.

On March 2 the University of Maryland and Pace University announced a new alliance between their environmental law programs that will allow students at each school to participate in courses and activities of both schools.  Pace students will be able to participate in Maryland’s Washington D.C. externship program and Maryland students will be able to participate in Pace’s United Nations practicum.  Pace students will be able to join Maryland’s environmental field trip to China next year and Maryland students will be able to participate in Pace’s Brazil program.  Based on the positive reactions we have received from environmental faculty around the country, this alliance may well prove to be a model for future cooperation between many schools.

On Friday I leave for Israel where I will be co-leading a group of eight University of Maryland students on a spring break trip to the Middle East (Israel, Jordan and the West Bank) to work on water resources issues.  

Sunday, March 1, 2015

Obama Vetoes Keystone XL Legislation, Panama Dam Halted, Brazil Fracking Delayed, Kansas Wins Water Dispute, Court Reverses Fisheries Conviction (by Bob Percival)

On February 24 President Obama fulfilled his promise to veto legislation that would have required approval of the Keystone XL pipeline to bring oil from the tar sands of Alberta, Canada to the U.S.  The veto was only the third President Obama has issued in the six years of his presidency.  Now that Republicans control both houses of Congress, it is likely that Obama will be vetoing many more bills in the last two years of his presidency.  Although nine Senate Democrats and 29 Democratic members of the House had voted in favor of the bill, this falls short of the two-thirds majorities that would be needed to override the president’s veto.  In a very brief veto message, Obama noted that the legislation “attempts to circumvent longstanding and proven processes for determining whether or not building and operating a cross-border pipeline serves the national interest.”

The February issue of EcoAmericas is now available.  It reports that Panama’s National Environmental Authority temporarily has halted the construction of the Barro Blanco Dam along the Tabasara River because of a series of environmental violations by Genisa, the Honduran company building the dam.  The dam was a major priority of the Martinelli government that left office last year.  The new administration of President Juan Carlos Varela has been much more sympathetic to environmental concerns.  President Varela recently signed legislation protecting more than 200,000 acres of wetlands on the west coast of Panama extending from Panama City to the Darien. EcoAmericas also reports that commencement of hydraulic fracturing in Brazil has been delayed because of environmental injunctions and a dispute over whether fracking will be licensed by state or national environmental authorities. 

On Monday and Tuesday I appeared before the U.S. Supreme Court to move the admission of seven of my former students to the Supreme Court Bar.  The seven are Catherine Faint ’93, Jomar Maldonado ’03, Karyn Marsh ’03, Jaclyn Ford ’04, Amber Widmayer ’07, Jeremy Scholtes ’08, and Rachel Shapiro ’10.  Lawyers may become members of the Supreme Court Bar after they have been admitted to practice before the highest court of a state for at least three years.  Their admission must be moved by an existing member of the Supreme Court Bar.  

No decisions were announced by the Court on Monday, but on Tuesday Justice Kagan announced the Court’s decision in Kansas v. Nebraska, a water dispute.  The Court approved the special master’s findings that Nebraska had “knowingly failed” to comply with its obligations under the Republican River Compact by taking more water from the river than it was entitled to take. The Court also approved the master’s recommendation that Nebraska be forced to disgorge some of its gains from the violations even though they exceeded actual losses suffered by Kansas.

On Wednesday the Court announced its decision in Yates v. U.S., reversing the conviction of a fishing boat captain for destroying evidence that he had taken undersized fish in violation of federal fisheries regulations.  By a 5-4 vote the Court held that the Sarbanes-Oxley Act’s provisions prohibiting destruction of a “tangible object” to obstruct an investigation did not cover the act of destroying undersized fish after they had been viewed by an enforcement official.  The decision featured an unusual lineup of the Justices with Justice Ginsburg writing the plurality opinion joined by the Chief Justice and Justices Breyer and Sotomayor with Justice Alito concurring in the judgment.  Justice Kagan wrote an excellent dissent joined by Justices Scalia, Kennedy and Thomas.

On Wednesday February 25 I gave another lecture on “Environmental Law in the ‘Last Place on Earth’” to the Maryland Environmental Law Society.  I was really pleased by the large turnout of for a lecture inspired by my trip to Antarctica in January.

Today Julie Weisman and I and the eight-student multidisciplinary team that we will be taking to the Middle East in two weeks met with Dr. Clive Lipchin, Director of the Center for Transboundary Water Management at the Arava Institute in Israel.  Clive is in town for the annual AIPAC meeting where Israeli Prime Minister Bejamin Netanyahu will speak tomorrow.  The students from the law, business, nursing, and dental schools will be researching greywater recycling projects in Israel, Jordan and the Palestinian Territories.


On Tuesday I will fly to Salt Lake City where I will be delivering the annual Wallace Stegner Lecture at the University of Utah’s S.J. Quinney School of Law.  My lecture is entitled “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Coopertion.”  It will review the amazing history of U.S. efforts to control air pollution and their influence on global environmental law.  See http://www.law.utah.edu/event/wallace-stegner-lecture-4/

Sunday, February 22, 2015

Trip to Berlin & Warsaw, Air Pollution in India (by Bob Percival)

On February 17 I returned to the U.S. after spending six days in Berlin and Warsaw.  After class on February 11 I flew to Berlin, arriving on the afternoon of February 12.  Just a few hours after I arrived, I served as a member of a committee at Freie University of Berlin which heard the defense by Lisa Elges of her dissertation on “Stratospheric Ozone Damage and Tort Liability: An Analysis of Public Policy and Tort Litigation to Protect the Ozone Layer.” The defense was successful and the committee voted to award Ms. Elges the Ph.D. degree.

On Friday February 13 I met with a group of professors who are advising the German government about the potential environmental implications of the Transatlantic Trade and Investment Partnership (TTIP) negotiations.  The TTIP negotiations are seeking to reduce trade barriers between the U.S. and the EU.  Because the EU has higher environmental standards than the U.S. in some areas, such as chemical regulation, there is concern that TTIP might enhance the ability of U.S. companies to challenge regulations imposed by the EU’s REACH program.  I discussed the current debate in Congress over fast track authority for both the Trans-Pacific Partnership (TPP) and TTIP.  These include the unusual politics of trade liberalization in the U.S. with both President Obama and the Republican leadership supporting fast-track authority while the Tea Party and many Democrats oppose it.

I spent last weekend visiting Warsaw, Poland.  This was my first visit to Poland, the 83rd country I have visited. I stayed in downtown Warsaw in an historic hotel right next to the Presidential Palace.  On Monday I flew back to Berlin and met with some prospective law students prior to flying back to the U.S. on Tuesday. 

Air pollution in India has become so severe that it has begun to attract worldwide attention.  It is estimated that 1.5 million people in India die every year due to exposure to indoor and outdoor air pollution.  During the last two years New Delhi has had higher levels of air pollution than Beijing in two out of every three months. The U.S. Embassy in New Delhi, which provides real time data online concerning particulate levels, has purchased 1,800 air purifiers for its staff. Gardiner Harris, “Delhi Wakes Up to an Air Pollution Problem it Cannot Ignore,” N.Y. Times, Feb 15, 2015, at A6.  On February 21, a group of economists led by Michael Greenstone of the University of Chicago published a study estimating that 660 million people in India have their lives cut short by an average of 3.2 years each due to exposure to air pollution.  Michael Greenstone, et al., “Lower Pollution, Longer Lives: Life Expectancy Gains if India Reduced Particulate Matter Pollution,” Economic and Political Weekly, Feb. 21, 2015 (http://www.epw.in/special-articles/lower-pollution-longer-lives.html).  Gardiner Harris, “Polluted Air Cuts Years Off Lives of Millions in India, Study Finds,” Feb. 21, 2015.  There are some signs that India may be approaching a tipping point where public concern over pollution may force the government to act.  When President Obama visited India recently, Indian government officials were more receptive to discussing pollution problems and measures that would be needed to control them.  One Indian journalist calculated that President Obama may have shortened his expected lifespan by six hours by spending three days breathing the air in India.


The latest development in the decades-long saga of litigation between Chevron and villagers in Ecuador affected by oil pollution is that the owner of a Gibraltar-based hedge fund reached a settlement with Chevron.  Chevron had sued James Russell DeLeon for providing $23 million to help fund the villagers’ lawsuit in return for a 7% stake in what is now a $9.5 billion judgment.  DeLeon agreed to turn over to Chevron his 7% stake in the judgment and his interest in the documentary film Crude for which he had provided the majority of the funding.  He stated that New York district judge Lewis Kaplan’s ruling for Chevron in its RICO litigation against the Ecuadoran plaintiffs and lawyer Steven Donziger convinced him that he had been misled.  Representatives of the villagers stated that DeLeon had simply caved into pressure from Chevron’s scorched-earth litigation tactics and that the settlement will have no impact on their ongoing efforts to collect the judgment.

Sunday, February 8, 2015

Return from Antarctica, Environmental Law in "the Last Place on Earth" (by Bob Percival)

As noted in my last blog post more than a month and a half ago, I spent the month of January in Antarctica, South Georgia, the Falklands and Easter Island.  This trip of a lifetime started with a three-week National Geographic expedition commemorating the 100th anniversary of British explorer Ernest Shackleton’s famous voyage on the Endurance.  My wife and I were onboard the National Geographic Orion, making its maiden voyage to Antarctica.  We left D.C. on December 26 and flew to Buenos Aires where we met the other participants in the expedition on December 27.  

On December 28 the group took a charter flight to Ushaia, Argentina, the southernmost city in South America where my wife and I had spent part of our honeymoon 30 years ago.  In Ushaia we boarded the National Geographic Orion, making its maiden voyage to Antarctica.  We sailed from Ushaia through the Beagle Channel, across the Drake Passage, to the South Shetland Islands.  From there we sailed to the Antarctic Peninsula.  We were blessed with spectacular weather and unusually calm seas that enabled us to make landings in places where tourists often are unable to land.

Because it is summer in Antarctica, on New Year’s Eve the sun set at 1AM and rose and 2AM.  On New Year’s Day we took zodiacs to observe seals and penguins on ice floes.  National Geographic surprised everyone by setting up a mimosa bar on one of the ice floes where we enjoyed an impromptu party.  We were able to go kayaking twice in Antarctic waters and to go hiking on the Antarctic Peninsula.  
From the Antarctic Peninsula we crossed over to the Weddell Sea where the captain wedged the ship into pack ice to create a rare dry landing.  Thirteen National Geographic naturalists and photographers were aboard the ship, including two divers who used underwater cameras to film the amazingly rich sealife below the surface.  We would watch videos of their dives in the evenings prior to dinner.
From the Weddell Sea we retraced Shackleton’s incredible voyage in a lifeboat to Elephant Island where we were able to land both at Cape Valentine and Point Wild, the two places Shackleton had landed.  We then sailed to South Georgia Island where we repeated the last phase of Shackleton’s journey by hiking from Fortuna Bay over a mountain pass to Stromness where Shackleton met up with personnel from a whaling station before organizing a rescue mission for the other members of his expedition who had been left behind on Point Wild.
After viewing incredible wildlife in several locations on South Georgia, we visited Grtviken, the only town on the island where 10 year-round residents reside.  On a subsequent trip to Antarctica, Shackleton had a heart attack in Grytviken Harbour and died and he is buried in the cemetery there.  National Geographic brought along a case of scotch that is a replica of the scotch Shackleton took on the Endurance expedition.  We all drank a toast and poured a wee dram of the whiskey over his grave.
From South Georgia we sailed to the Falkland Islands where we visited Port Stanley, Steeple Jason Island, Carcass Island, and New Island before returning to Ushaia.  We then took a charter jet to Buenos Aires where we caught a flight to Santiago, Chile.  From Santaigo we flew to Easter Island which I had visited by boat 42 years ago prior to starting law school.  After three days touring the island with its top archaeologist, we returned to Santiago where we spent two days exploring the places we visited when we adopted our daughter from there 26 years ago.  
I will be posting photos of the trip online soon.  I became completely fascinated by the unique legal regime that protects the Antarctic environment.  Last Friday I posted about it on the American College of Environmental Lawyers (ACOEL) blog.  Because the ACOEL blog is only open to members, I’ve reproduced the post below.  On Friday I will be giving a talk at the Freie University of Berlin comparing the unique legal regime that protects Antarctica’s environment with the one applicable to Arctic.
Environmental Law in “the Last Place on Earth”
by Robert V. Percival 

A century ago expeditions to Antarctica, “the last unexplored place on earth,” made Amundsen, Scott, Mawson, and Shackleton household names. Today Antarctica’s pristine environment attracts tourists to what is the coldest, windiest, and highest continent on earth.  Despite its harsh climate and the massive ice sheet that covers nearly all its land mass, Antarctica is teeming with life, as I discovered on a recent National Geographic expedition there celebrating the centenary of Shackleton’s famous voyage.  The trip gave me an opportunity to explore with long-time specialists the unique legal regime that protects the Antarctic environment.

Global scientific cooperation during the International Geophysical Year (IGY) of 1957-58 sparked interest in negotiating what became the Antarctic Treaty.  Signed in 1959 by the 12 countries that participated in the IGY (Argentina, Australia, Belgium, Chile, France, Great Britain, Japan, New Zealand, Norway, South Africa, the Soviet Union, and the United States), the treaty entered into force on June 23, 1961.  The treaty, which applies to the area south of 60 degrees south latitude, suspends territorial sovereignty claims made by seven countries. It protects freedom of scientific investigation while subjecting scientific personnel to the jurisdiction of their respective governments.  Important protections for Antarctic plants and wildlife were added by the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted as an annex to the treaty in 1964, and the Convention for the Conservation of Antarctic Seals, which entered into force in 1978.

When the Antarctic Treaty was negotiated, 60 scientific stations had been established on the continent and surrounding islands.  Waste disposal practices at these bases initially were quite haphazard, including at the large U.S. base on McMurdo Sound.  The U.S. actually operated a small nuclear power plant at the station between 1962 and 1972, which had to be decommissioned prematurely due to continuing safety issues. A total of 101 drums of radioactive earth were shipped back to the U.S. A campaign by Greenpeace to expose open dumping of wastes at McMurdo helped spur improved waste disposal practices, particularly after congressmen with oversight authority over the National Science Foundation (NSF) visited the station.  In the 1990s, the Environmental Defense Fund won a lawsuit against NSF to block construction of a waste incinerator at McMurdo without an environmental impact statement.  The D.C. Circuit held that because Antarctica was not the territory of any sovereign the principle against extraterritorial application of NEPA did not apply. Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993).

The most important environmental protections for the continent are embodied in the Protocol on Environmental Protection to the Antarctic Treaty, which was adopted in 1991. The Protocol designates the continent as a “natural reserve devoted to peace and science” and it imposes strict measures to protect the Antarctic environment, including a ban on all mining.  Also in 1991 tour operators formed the International Association of Antarctic Tour Operators (IAATO), a private, self-regulating organization that now has more than 100 members.   IAATO has developed a strict code of conduct designed to keep Antarctica pristine, to protect Antarctic wildlife, and to require tourists to respect protected areas.  This code was observed so strictly on our expedition that we were prohibited from relieving ourselves while on land, a prohibition not applicable to the penguins whose wastes create a pungent smell apparent whenever land is approached.  Boots had to be disinfected prior to every landing and clothing was vacuumed to prevent introduction of invasive plants. 

The worst environmental disaster in Antarctic history occurred in January 1989 when the Bahia Paraiso, an Argentine naval supply ship hit a submerged rock off DeLace Island, spilling 600,000 liters of oil and creating an oil slick that covered 30 square kilometers. In 2009 the International Maritime Organization banned the use of heavy fuel oils by ships in Antarctic waters.  This measure has been widely applauded for reducing pollution in Antarctica.  It also caused some cruise lines to stop visiting the continent with huge cruise ships, significantly reducing the number of tourists in Antarctic waters.  

One of the joys of visiting Antarctic waters is the visible abundance of whales. In the early twentieth century, extensive whaling by vessels from several countries decimated whale populations in Antarctica.  Many have recovered, but spotting blue whales, the heaviest creatures ever to inhabit the earth, as we did on our trip, is still a rare event.  In March 2014 the International Court of Justice (ICJ) ruled that Japanese whaling in Antarctic waters violated the International Whaling Commission’s ban on commercial whaling.  Japan was taken to the ICJ by Australia and New Zealand, which argued that Japanese whaling had been so extensive that it could not possibly qualify for the exception for whaling for purposes of scientific research.  Japan has pledged to resume whaling next year with a scaled-back program that will kill only minke whales.

Enforcement of strict measures to protect the Antarctic environment depends crucially on cooperation by many governments and private companies. Last month the New Zealand navy confronted boats illegally catching sea bass (toothfish) in Antarctic waters.  Rough waters prevented New Zealand authorities from boarding the vessels, rumored to be owned by a Spanish crime syndicate.  The New Zealand navy informed Interpol in hopes of preventing the boats from offloading their illegal catch.


The Antarctic environment continues to face challenges, particularly from climate change which has visibly reduced the size of glaciers.  But the ban on commercial exploitation of Antarctic resources has preserved a more pristine environment than in northern polar regions where countries and companies are racing to develop oil resources.  Shackleton would be proud.

Friday, December 26, 2014

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

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

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

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

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

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

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

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


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