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, August 16, 2015

China Chemical Conference, Tianjin Disaster, Japan Restarts Reactor, Former BP Head Criticizes Shell Arctic Drilling (by Bob Percival)

I am now back in the U.S. after my latest trip to China.  On Monday August 10 I was a speaker at a conference on “Chemical Regulation in China and the U.S. “ at Shanghai Jiaotong University’s KoGuan School of Law.  I made an hour-long presentation about the history of chemical regulation in the U.S. and the progress of legislation to update the Toxic Substances Control Act.  Wu Jian, who is responsible for chemical regulation for Shanghai’s Environmental Protection Board, then discussed the state of chemical regulation in China.  Participants in the conference included regulatory affairs managers from 22 chemical companies, including multinational companies such as Dow, Corning, BASF, Fuji and Syngenta.  Following our presentations, there was a frank and lively discussion session that focused on enforcement problems in China (e.g., a typical complaint was that MEP was enforcing the regulations - one company official asked Mr. Wu what a company should do when it becomes convinced that a competitor is using a chemical that has been imported illegally).

After the Q & A at the conference brought home how poorly Chinese chemical control regulations were enforced in practice, I was not surprised on Thursday morning to learn of the explosions caused by illegally stored chemicals that killed more than 100 people in Tianjin.  All the regulations requiring listing and reporting of chemicals proved ineffective because the companies storing extremely toxic chemicals did not comply with them.  Chinese friends suspect that corruption is the main explanation for the disaster.  Ironically, the disaster occurred the day after China’s Ministry of Environmental Protection had proudly reported that the number of environmental emergencies in China had fallen from 63 in the first six months of 2014 to 48 in the first six months of 2015.

In yet another depressing indication that China’s upgrade of its environmental laws has not had its intended effects, the Chinese government has ordered restrictions on vehicle use and factory shutdowns beginning on August 20 to reduce pollutants that will be in the air on September 3 when Chinese President Xi Jinping presides over a parade to celebrate the 70th anniversary of the end of World War II.   One would hope that as environmental law matures in China, the expedient of temporary closings polluting factors would no longer serve as a major pollution control strategy.

Despite strong local opposition, Japan last week restarted the first nuclear powerplant in the country since the meltdown at Fukushima Daiichi in March 2011.  The Kyushu Electric Power Company restarted one reactor at its Sendai nuclear powerplant in southwestern Japan.  For the last two years all of  Japan’s nuclear powerplants have been shut down as the government trieda to absorb lessons from the Fukushima Daiichi disaster. Among the protesters at the Sendai site was Naoto Kan, prime minister at the time of the disaster, who now has become an anti-nuclear activist.

Last week Australia announced its pledge to reduce greenhouse gas emissions in the runup to COP-21 in Paris in December.  The government promised to reduce emissions by between 26 and 28% from 2005 level by the year 2030.   The government announced thtat it plans to meet this goal without reinstating the carbon tax that it repealed.

Last week Lord Browne, former CEO of BP, harshly criticized Shell Oil for its risky Arctic oil drilling activities. In an interview with the BBC, he argued that drilling in the Arctic was too risky and too costly and would damage Shell’s long-term reputation.  Lord Browne noted that the Arctic environment is “much more fragile than other environments.” As the price of oil plunged to just above $40/barrel last week, Shell’s Arctic drilling looks increasingly foolish. 

Last week a coalition of red states filed suit against EPA’s Clean Power Plan, even though it had not yet appeared in the Federal Register, rendering their lawsuits once again premature.  The petitioners asked the panel of the D.C. Circuit that dismissed their initial lawsuits as premature to issue an order staying the EPA regulations.  If such an order were granted, it would create a huge incentive for filing frivolous, premature lawsuits in an effort to forum shop for a sympathetic panel of judges.  olous, premature lawsuits in an effort to forum shop for a sympathetic panel of judges. 

Saturday, August 8, 2015

Russia Makes Vast Arctic Claim, Aussie Coal Project Delayed, China Steps up Enforcement, Shanghai Children's Lead Levels Plunge, China Trip (by Bob Percival)

In a new submission to the United Nations Commission on the Limits of the Continental Shelf, the Russian government on August 3 claimed sovereignty over more than 460,000 miles of the Arctic.   A similar bid by Russia in 2001 was rejected for insufficient evidence.  Russia’s claim, which is based on its contention that its continental shelf extends beyond the North Pole, is rejected by the other countries with territory bordering on the Arctic.  In 2007 a Russian submarine planted a flag on the seabed under the North Pole.

As reported last week, EPA announced its final rules for controlling greenhouse gas (GHG) emissions from existing powerplants on August 3.  Known as the Clean Power Plan, the regulations are designed to reduce GHG emissions from this sector by 32% over 2005 levels by 2030.  I gave five press interviews on the regulations and wrote an online oped supporting them.

On August 6 an Australian court reversed approval of the Carmichael Coal Mine and Rail Project that environmentalist argue will threaten the Great Barrier Reef.  The decision reportedly was based on the Environment Department’s failure to consider impacts on endangered reptiles in the vicinity of the project.  The decision is expected to delay, but not necessarily kill, the $12.1 billion project by the Indian firm Adani. 

The Chinese Ministry of Environmental Protection (MEP) reported last week on environmental enforcement during the first six month of 2015. MEP reported that it had shut down 9,300 companies and suspended work at another 15,000 during this six-month period.  Nearly 300 companies were fined a total of 236 million RMB ($38 million).  Managers of companies were prosecuted in 740 cases and 57 government officials were punished for enforcement failures.   Beginning on January 1 new amendments to China’s basic environmental law took effect that were designed to improve enforcement.  The amendments authorize public interest lawsuits and provide for daily penalties for violators.  The Qingdao Maritime Court recently agreed to hear a public interest lawsuit against ConocoPhillips and China National Offshore Oil for an oil spill in Bohai Bay that occurred in 2011.  The lawsuit was brought by the China Biodiversity Conservation and Green Development Foundation.  Previously the court had refused to accept a lawsuit by the All China Environment Federation on behalf of fisherman harmed by the spill. 

Because enforcement in China is largely left to local officials, China’s small Ministry of Environmental Protection (MEP) summoned the leaders of ten cities to encourage them to step up enforcement.   Some companies have pushed back against enforcement.  Claiming that local enforcers failed to follow proper procedures, the Shaanxi Coal Chemical Energy Company in Xianyang has refused to pay 15.8 million RMB ($2.5 million) in fines,  Zheng Jinran, Companies, Officials Punished for Failure to Control Pollution, China Daily, Aug. 6, 2015, at 1. 

The Supreme People’s Procurate (SPP) last week announced that, as part of an effort to step up criminal enforcement of food safety laws, it will target corrupt officials who take bribes to protect violators.  The SPP reported a 136% increase in arrests of food safety violators in the last year.

A two-year study of 2,144 chlidren in the greater Shanghai area found a 75% drop in lead levels in the children's blood during the last 20 years.  The study, conducted by researchers from China’s Ministry of Education and the Shanghai Key Laboratory of Children’s Environmental Health at Shanghai Xinhua Hospital, credited the phaseout of gasoline additives in 1997 with the dramatic reduction.  Average blood lead levels plunged from 83 micrograms per liter to 20 microgram per liter.  However, these levels are still above the 10 micrograms per liter average found in children in the U.S.  Cai Wenjun, Lead Levels in Kids Drop 75% in 20 Years, Shanghai Daily, Aug. 6, 2015, at 5.  In the last two weeks levels of ozone have replaced PM2.5 as the major air pollution concern in Shanghai.  At one point they reached a level of 246 micrograms per cubic meter of air at one point, far above the World Health Organization’s recommended limit of 100 micrograms per cubic meter.

I am currently in Hong Kong, which experienced its hottest day in history yesterday when temperatures hit 97 degrees Fahrenheit.  Air pollution levels were unusually high, which authorities attributed to unusual air circulation caused by Typhoon Soudelor.  Today I visited the June 4 Museum in Kowloon which documents the Tiananmen Square Massacre on June 3-4, 1989.  The Hong Kong press reports that when Taylor Swift’s new album 1989 goes on sale on the mainland the authorities may require her to delete “1989 T.S.” from the label for fear that it will be a reminder of those tragic events.

Sunday, August 2, 2015

EPA Finalizing Clean Power Plan, Chesapeake Sea Grasses Rebound, Price Plunge Slashes Oil Company Earnings, Antarctica Talk & China Trip (by Bob Percival)

The U.S. Environmental Protection Agency’s long-awaited Clean Power Plan to control emissions of greenhouse gases (GHGs) from existing power plants will be issued in final form on Monday August 3.  Since EPA proposed the regulations in June 2014 it has received more comments on them that it has ever received on any proposed regulations in the agency’s 45-year history.  The final regulations include some significant changes from the agency’s initial proposal, indicating that EPA listened carefully to the avalanche of comments it received.  The regulations are being issued pursuant to §111(d) of the Clean Air Act, which allows the agency to require states to regulate a pollutant for which it has established a new source performance standard if it is not already regulated as a criteria air pollutant with a national ambient air quality standard (NAAQS) or as a hazardous air pollutant subject to a national emissions standard for hazardous air pollutants (NESHAP). EPA is setting emissions targets for states that in the aggregate will reduce GHG emissions by 32 percent from 2005 levels by 2030.  

The agency has removed from the target-setting process the fourth of its four proposed “building blocks” - demand-side energy efficiency improvements.  This should eliminate some of the most vociferous legal objections to the regulations that contended that the agency had no authority to include this in the regulations.  EPA also increased the flexibility afforded states, placing more emphasis on regional, rather than individual state, calculations of emissions rates.  It also has delayed for two years from 2020 to 2022 the initial start date for compliance by power plants, which will make it more difficult for companies to argue that they face irreparable harm if the regulations are not stayed.  Initial state plans will be due in September 2016, but states that provided a reasonable explanation for needing more time can obtain extensions to September 2018.  At the same time EPA is keeping incentives for early action by states to reduce emissions by investing in renewable energy sources.  Although Senate majority leader Mitch McConnell has been urging states to “just say no” to EPA, the Washington Post reports that most states, including McConnell’s home state of Kentucky, are planning to comply with the regulations.  Joby Warrick, Outrage Over EPA Emissions Regulations Fades as States Find Fixes, Washington Post, July 23, 2015.  EPA’s regulations include a Federal Implementation Plan (FIP) for states that refuse to submit their own plans, but it is eschewing use of the sanctions provided under the Clean Air Act for states that fail to comply, such as the withholding of federal transportation funds.  Thus, it will be very hard for opponents to argue that the regulations trample federalism concerns.

There will be fierce rhetoric attacking EPA’s regulations, as now routinely occurs whenever the agency adopts national regulations.  Republican presidential candidate Marco Rubio, who two years ago said that EPA was “carpet bombing” the economy, was already on TV today arguing that the rules would be “catastrophic” for single moms.  But, revealingly, he revisited the former talking point that China is doing nothing to control its emissions, which now could not be more false.  There also will be a multiplicity of legal challenges to the rules.  Industry groups were so eager to challenge them that they sued EPA last year before the rules were even issued.  The industry lawsuits were tossed out of court last year as being premature.  With the changes EPA made between its proposed and final rule, the agency is on even firmer legal footing, despite what its critics will say.

On July 30 officials from Maryland and Virginia announced that for the second year in a row Chesapeake Bay sea grasses rebounded significantly.  A survey conducted by the Virginia Institute of Marine Sciences found that Chesapeake sea grasses covered 27% more of the Bay bottom in 2014 than in  2013. The survey found that underwater grasses covered 75,835 acres of the Bay, an increase from 59,711 acres in 2013.  The Bay-wide restoration goal is 185,000 acres. 

Major multinational oil companies reported last week that their earnings had fallen to the lowest levels in a decade, due to the low price of crude oil.  Several companies also announced layoffs and sharp cuts to their capital spending, reflecting a conclusion that lower oil prices are here to stay for an extended period. ExxonMobil reported a 49% decline in profit, which sent its stock tumbling.  Chevron’s stock also plunged after the company reported that its profit dropped 89%.  Crude oil prices are hovering just above $50/barrel, less than half the level that prevailed last year.  This makes it all the more puzzling why Royal Dutch Shell is continuing to pursue drilling in the Arctic where it will not be profitable without oil prices above $75/barrel.  

On Tuesday July 28 I gave a “Hot Topics” lecture at Vermont Law School on “Environmental Law in the ‘Last Place on Earth’.”  The lecture compared the unique legal regime that protects the environment in Antarctica with the situation in the Arctic, where a rush is on to development.  I noted the New York Times story that appeared last week (Ian Urbina, A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes, N.Y. Times, July 28, 2015) that reported how the private group Sea Shepherd hunted a vessel caught illegally fishing in Antarctica for 110 days before it was scuttled by the Spanish criminal syndicate that owned it. This represents another example of emerging action by NGOs to assist with the enforcement of environmental law, a significant element in the growth of global environmental law. 

On July 30 Professor Zhao Huiyu of Shanghai Jiatong University’s KoGuan School of Law gave a “Hot Topics” lecture at Vermont Law School on China’s new public interest litigation law.  She presented some fascinating new data on how the law is operating as Chinese courts accept public interest cases that they previously would have refused.  Professor Zhao and I left Vermont to drive to Boston after the final class of our Comparative U.S./China Environmental Law course on Thursday afternoon.  Even though her flight from Boston back to Shanghai was not until very early Friday morning, it left before mine.  I had a flight back to D.C. on the 9pm Thursday U.S. Air shuttle.  The flight left more than 3 hours late after midnight, flew half way to D.C., and then was ordered to return to Boston because Reagan National Airport had closed.  I spent the night on a bench at Logan Airport because the hotels were all full and then returned to D.C. on the 8AM shuttle on Friday morning. On Tuesday I will fly to Shanghai to complete my service for the year as a high level visiting foreign expert. 

Saturday, July 25, 2015

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

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

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

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

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

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

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

Saturday, July 18, 2015

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

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

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

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

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

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

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

Saturday, July 4, 2015

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

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

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

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

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

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

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

Sunday, June 28, 2015

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

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

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

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

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

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

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