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, November 19, 2015

Obama Rejects Keystone XL, Montreal Protocol Focuses on HFCs, Finland Nuclear Waste Repository, Volkswagen Encourages Whistleblowers, U.S. Cuba Marine Agreement, Peabody Settlement (by Bob Percival)

On Friday November 6 President Obama announced that he had accepted Secretary of State John Kerry’s recommendation to reject TransCanada’s application to build the Keystone XL pipeline.  The decision ends a seven-year process during which the pipeline became a top political controversy with strong support from Republicans and opposition from every Democratic presidential candidate.  Announcing his decision, President Obama stated that "America is now a global leader when it comes to taking serious action to fight climate change, and frankly, approving this project would have undercut that leadership."  The President astutely noted that “for years, the Keystone Pipeline has occupied . . . an overinflated role in our political discourse.  It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter.  And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others.”

Meeting in Dubai, the parties to the Montreal Protocol on Substances That Deplete the Ozone Layer agreed to use the Protocol to phase down use of hydrofluorocarbons (HFCs).  In addition to being ozone-depleting substances, HFCs are powerful greenhouse gases.  The “Dubai Path” agreed to by all 197 UN member countries (who also are parties to the Montreal Protocol) will result in a formal amendment in 2016 to formalize the phasedown.   When President Obama first met Chinese President Xi Jinping in California in June 2013, the two countries agreed to pursue an HFC phasedown.  It is estimated that HFC phasedown will avoid the equivalent of emissions of100 billion tons of carbon dioxide.  Once again the Montreal Protocol will prove to be an even more potent mechanism for combatting climate change than the Kyoto Protocol was.

Last week the government of Finland issued a license for the construction of a high-level nuclear waste repository on Olkiluoto Island.  The Posiva repository, which will be the first of its kind in the world, is designed to hold the waste for 100,000 years.  The radioactive waste will be buried inside iron-and-copper capsules 400 meters underground. The capsules will be surrounded by clay barriers and capped with rubble and cement.   The Posiva repository is designed to hold up to 6,500 metric tons of waste, less than a tenth of the 70,000 tons of high-level radioactive waste currently at nuclear power plants in the U.S., which produce another 2,200 tons of waste each year. 

In an unusual move, the management of Volkswagen sent a memo to its employees offering them amnesty if they tell what they know about the emissions testing scandal that has engulfed the company.  The company promised that employees who provide information would not be fired or hit with claims for damages if they come forward by the end of the month.  Jack Ewing & Julie Creswell, Seeking Information, VW Offers Amnesty to Employees, N.Y. Times, Nov. 13, 2015, at B1. The company conceded that it could not provide amnesty from criminal prosecutions, but it noted that cooperation “speaks in the employees favor,” based on past experience.

On November 8 President Ollanta Humala of Peru approved the creation of a 3.3 million acre national park.  The Sierra Del Divisor National Park, which is larger than Yosemite and Yellowstone combined, is the final link in the 67 million acre Andes-Amazon Conservation Corridor.  The creation of contiguous protected areas in different countries will enhance protection for wildlife and other species in the corridor. 

On November 18 the U.S and Cuba signed an agreement pledging cooperation on marine research and protection issues.  Under the agreement, scientists with the U.S. National Oceanic and Atmospheric Administration (NOAA) who are responsible for marine sanctuaries in the Florida Keys and the Texas Flower Garden Banks national sanctuary will work with scientists from Cuba’s Guanahacabibes National Park and Banco de San Antonio in the westernmost part of Cuba.  This agreement has been hailed as opening the door to more extensive environmental cooperation between the two countries in the future.

On November 9 New York Attorney General Eric T. Schneiderman announced that he had settled charges against Peabody Energy for failing to disclose to investors and securities regulators what the company knew about the risks of climate change.  Peabody will not pay any financial penalty, but it agreed to make more detailed disclosures about the impact of climate change risks on the coal company’s future financial prospects.  The action was brought pursuant to New York’s Martin Act that forbids companies from making false representations to investors or securities regulators.  I was quoted in the press as saying that security disclosure requirements can be used as “truth serum” for corporations. David Hasemyer, Peabody Settlement Shows Muscle of Law Now Aimed at Exxon, Inside Climate News, Nov. 10, 2015 (http://insideclimatenews.org/news/10112015/peabody-coal-climate-change-settlement-new-york-ag-exxon-subpoena-investigation).

Wednesday, November 4, 2015

SEER Conference, Justice Asked to Investigate Exxon on Climate, TransCanada Seeks Suspension of Keystone XL Decision, China Coal Use Underestimated, Senate Tries to Veto WOTUS Rule (by Bob Percival)

On Friday October 30, I spoke on a panel at the 23rd Annual Fall Conference of the ABA Section on Environment, Energy and Resources (SEER) Law, which was held in Chicago.  The panel addressed “Key Developments in Global Environmental Law that U.S. Lawyers Need to Know.”  It apparently was the first time the ABA held a panel on the topic of global environmental law.  Joining me on the panel were Charles DiLeva, Chief Counsel for Environmental and International Law at the World Bank, and Professor Erin Daly from Widener University Delaware School of Law.  I discussed the evolution of the concept of global environmental law and how globalization is blurring traditional distinctions between public and private law and domestic and international law.  Charles discussed issues confronting the World Bank and the ongoing climate negotiations, while Erin focused on environmental provisions in the constitutions of various countries.

Last week more than 40 NGOs signed a letter to Attorney General Loretta Lynch calling for the Justice Department to investigate whether ExxonMobil tried to mislead the public over the threat of global warming and climate change.  Democratic Presidential candidates and members of Congress also called for such an investigation, comparing ExxonMobil’s funding of climate change deniers to historic efforts by the tobacco companies to conceal the risks of smoking.  ExxonMobil denies the charges, claiming that it has long participated in serious scientific efforts and now believes that “there is a definite risk from climate change.”

On November 2, TransCanada asked the U.S. government to suspend any decision on its application to build the Keystone XL Pipeline.  Some observers believe that this is a strategic move taken in anticipation that President Obama will decide against approving the pipeline.  TransCanada apparently believes that a more favorable decision may be reached if it is delayed until after a new President takes office in 2017.  However, word from the White House is that President Obama will decide on Keystone XL before leaving office, despite TransCanada’s request to suspend a decision.

New data show that China has been using 17% more coal than previously reported.  The revised data indicate that China has been emitting much higher levels of greenhouse gases (GHG) than previously thought. The discrepancy is more than one year’s emissions from the country of Germany.  The revised data were published by China’s statistical agency without fanfare.  The International Energy Agency stated that the new data will require it to revise upward its estimates of China’s coal use and GHG emissions. Chris Buckley, China Burns Much More Coal Than Reported, Complicating Climate Talks, N.Y. Times, Nov. 4, 2015.

On Tuesday November 3 I presented a day-long workshop on environmental law to 23 Chinese government officials from Sichuan Province.  The workshop was organized by the Maryland China Initiative and held at the University of Maryland-College Park.  The officials were particularly interested in how U.S. environmental law deals with heavy metal pollution.

On Wednesday November 4, the U.S. Senate voted 53-44 to use the Congressional Review Act in an attempt to veto EPA’s rule clarifying the reach of federal jurisdiction under the Clean Water Act.  EPA adopted what is known as the “waters of the U.S.” (WOTUS) rule in an attempt to clarify the mess left when the Supreme Court split 4-1-4 on the issue in its 2006 Rapanos decision.  Three Democrats joined all but one Republican Senator (Susan Collins of Maine) in voting to veto the rule.  The vote is largely symbolic because President Obama has promised to veto the resolution if it passes Congress.  The Congressional Review Act has only once been used successfully to veto an agency regulation, OSHA’s ergonomics rule issued in the final days of the Clinton Administration in 2001.  The OSHA rule was vetoed by Congress, a veto approved by new President George W. Bush.  Because agencies rarely adopt rules that are opposed by the President, the Congressional Review Act (CRA) is likely to work to veto rules only when there is a change of administration from one political party to another.  One pernicious feature of the CRA is that if a congressional veto is successful the agency is barred from issuing a similar regulation without advance approval from Congress.  That might mean that EPA would be precluded from adopting any other rules to clarify the jurisdictional confusion that has persisted for nearly a decade thanks to the Supreme Court’s inability to agree.  

Tuesday, October 27, 2015

Pollution from Fires in Indonesia, Clean Power Plan Published, FERC Supreme Court Argument, Interior Cancels Arctic Leasing, ACOEL Annual Meeting (by Bob Percival)

Air pollution from fires set for landclearing in Indonesia has now become so bad that the country’s military is assisting in fighting the fires and evacuating people from the most affected regions.  A spokesperson for Indonesia’s Meteorology, Climatology and Geophysics Agency described the fires as “a crime against humanity of extraordinary proportions.”  It is estimated that the fires have cost the Indonesian economy more than $30 billion while causing more than 500,000 cases of respiratory infections. Kate Lamb, “Indonesian Fires Labelled a ‘Crime Against Humanity’ as 500,000 Suffer,” The Guardian, Oct. 26, 2015.  The fires caused Indonesian President Joko Widodo to cut short a state visit to the U.S. on October 26.   Satellites operated by NASA have detected more than 115,000 fires in Indonesia, which on 26 days have released more greenhouse gases than the entire U.S. economy.

On Friday October 23, EPA’s Clean Power Plan was published in the Federal Register.  At least 17 separate lawsuits challenging the rule were filed in the D.C. Circuit on the same day the rule was published.  The state of West Virginia, joined by 23 other states, was the lead plaintiff in the first lawsuit filed. Industry trade associations, unions, and the states of Oklahoma and North Dakota also filed suits.  Several of these states and groups prematurely filed law suits last year before the rule, which regulates emissions of greenhouse gases from existing powerplants, even was adopted in final form.  These cases were dismissed as premature, but the new round of litigation is timely filed. The initial battle will be over whether the court should stay the rules pending the outcome of the litigation, which ultimately is likely to reach the U.S. Supreme Court.

On October 14, more than twenty students from three Maryland environmental law classes attended an oral argument at the U.S. Supreme Court in an important case involving efforts to encourage more efficient use of energy.  The case, Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association, involves review of a FERC order encouraging utilities to implement demand-response programs to reduce consumption of electricity at peak hours.  The students came from my Environmental Law class at the University of Maryland Carey School of Law, my Special Topics in Environmental Law course for undergraduates at the University of Maryland College Park, and Professor Joanna Goger’s Environmental Law course in the university’s Environmental Science and Policy Program. Following the oral argument, the students gathered for lunch at my home on Capital Hill, a short walk from the Court.  Because Justice Samuel Alito has recused himself from the case it is possible that the Justices will split evenly 4-4, affirming the decision below that invalidated FERC’s order.

On October 16 the U.S. Department of Interior announced that it was cancelling auctions that had been scheduled for the next two years for oil drilling rights in the Chukchi and Beaufort Seas off the northern coast of Alaska.  Interior Secretary Sally Jewell cited market conditions and Shell’s abandonment of its Arctic drilling program.  The government also denied requests for lease suspensions from Shell and Statoil, which means that their existing 10-year leases will expire in 2017 and 2020. 

From October 15-17 I participated in the annual meeting of the American College of Environmental Lawyers (ACOEL) in New York City.  The meeting featured a field trip to the World Trade Center where we were hosted for lunch by Silverstein Properties, developer of the site.  Columbia Law Professor Mike Gerrard, who has served as environmental counsel for Silverstein, organized a wonderful seminar on the environmental features of the buildings being built on the site of the 9/11 terrorist attack.  Harvard Law Professor Jody Freeman gave a terrific keynote presentation on EPA’s Clean Power Plan and upcoming legal challenges to it.  At the closing of the conference on October 17 Assistant Attorney General John Cruden and I presented our joint review of the top environmental law cases of the year and our preview of cases that will be heard in the upcoming year. 

On October 22, students from my Global Environmental Law Seminar presented the results of their study of whether Maryland should join the 22 states that have an environmental provision in their state constitution.  The study was presented to a multi-denominational group of religious leaders who had gathered for a conference “Awake and Arise: Congregations Restoring Creation” sponsored by the Ecumenical Leaders Group and the Central Maryland Ecumenical Council.  The conference was held at St. Mary’s Seminary in Baltimore. The students found that there are two major types of environmental provisions in constitutions: policy directives, which often are designed to protect natural resources, and environmental rights provisions.  While many constitutional provisions have been deemed primarily symbolic and not self-executing, others have had a significant aspect on environmental protection.  Although the students’ report does not make a formal recommendation, it lays out several options that should be considered in starting a conversation over a possible Maryland amendment.

Sunday, October 11, 2015

VW Scandal Deepens, India's Climate Plan, Shell Stops Arctic Drilling, EPA Lowers Ozone Standard, SE Asia Haze, TPP Agreement (by Bob Percival)

The scandal involving deliberate cheating on U.S. air pollution emissions tests by Volkswagen (VW) for its diesel vehicles continued to generate amazing revelations.  After interviewing former engineers for VW, a reporter for the New York Times revealed that the cheating started in 2008 after VW discovered that its new EA 189 line of diesel engines would not meet U.S. emissions standards.  Rather than stopping production of the new engines, VW decided to install software that would cheat on the emissions tests. Jack Ewing, Volkswagen Engine-Rigging Scheme Said to Have Begun in 2008, N.Y. Times, Oct. 4, 2015.

Even more amazing, the New York Times reports that VW later became so enamored with the success of its deceptive “green diesel” campaign that it demanded that EPA award it special fuel economy credits for its “green diesel” engines.  After EPA refused, VW protested by become the only major auto manufacturer to refuse to support the increase in U.S. fuel economy standards that President Obama announced in July 2011.  Aaron M. Kessler, Volkswagen Sought a Green Seal for its Diesel Cars, N.Y. Times, Oct. 6, 2015.  The widening VW scandal has led some observers to question whether other companies may be cheating on green energy tests.  Five years ago LG was caught with an energy-saving program in its refrigerators that operated only when the appliances were undergoing energy efficiency testing.  This has resulted in increased vigilance in testing procedures.  Jad Mouawad, Cat-and-Mouse Games with Regulators Not Confined to Cars, N.Y. Times, Oct. 10, 2015, at B1.

Although a strong consensus is building for severe punishment of VW, some question whether significant criminal penalties can be imposed.  Title II of the Clean Air Act, which governs mobile sources, has a specific provision for civil penalties, but not for criminal ones.  Former Congressman John Dingell, a long-time defender of the auto industry from Detroit, noted that civil penalties are “easier, speedier, quicker” and that “the cost to Volkswagen is going to be unbelievable.”  Dingell believes that the risk is “very real” that VW may go out of business. Amy Harder and Aruna Viswanatha, Volkswagen May Not Face Criminal Charges, Wall St. J., Sept. 29, 2015.  At a hearing before a House subcommittee on October 8, Michael Horn, president of VW’s American subsidiary, stated that he did not find out about the emissions cheating software until September 2015, though he had been aware since early in the year that VW was having problems with EPA.

On October 1 India became the last major country to submit to the United Nations its plan for mitigating climate change.  While India still refuses to commit to cap its emissions of greenhouse gases, it pledges to reduce the carbon intensity of its economy by 35% by 2030.  India also pledges eventually to produce at least 40% of its electricity from non-fossil fuel sources.

Two weeks ago Royal Dutch Shell surprised the world by announcing that it would end its oil exploration off the north coast of Alaska because of “disappointing results” from the exploratory wells it drilled in the Chukchi Sea.  For nearly a decade, Shell has been seeking to drill in Arctic waters off of Alaska, even as other major oil companies canceled their plans to do so, deeming it too risky to drill in the harsh Arctic environment.  It had been estimated that it would cost more than $70/ barrel to produce oil from Arctic offshore areas, making drilling there of little economic sense when oil prices linger in the $40s/barrel.

On October 1 EPA announced that it was taking final action to lower permissible levels of ozone in the ambient air.  EPA lowered the national ambient air quality standard (NAAQS) for ozone from 75 to 70 parts per billion (ppb).   Four years ago the White House blocked an EPA effort to propose a lower NAAQS for ozone because of fear that it would cause political controversy prior to the 2012 election.  Environmentalists were disappointed that EPA did not lower the standard to 60 ppb, which was what they believe the science justifies.  EPA estimates that compliance with the 70 ppb standard will cost $1.4 billion/year in 2025, while producing annual benefits worth $2.9 to $5.9 billion. Nevertheless, industry groups, which had been running deceptive ads praising the existing NAAQS they once opposed, criticized EPA’s action.

On October 9 the U.S. Court of Appeals for the Sixth Circuit by a 2-1 vote issued a nationwide stay of EPA’s “waters of the U.S.” rule clarifying the reach of federal jurisdiction under the Clean Water Act.  Brent Kendall and Amy Harder, Court Puts New Water Rule on Hold, Wall St. J., Oct. 10-11, 2015, at A3.  Curiously, the court did so without even finding that it had subject matter jurisdiction over challenges to the rule.  The two judges in the majority argued that it would be helpful to put everything on hold so that regulated entities would not have to incur costs complying with the rule, though such costs would only be incurred if someone wanted to discharge material into a water body over which federal jurisdiction is uncertain.  The court majority did say the following in its order: “the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.” 

Fires from illegal slash-and-burn operations in Indonesia have again cloaked southeast Asia in a choking haze.  Thousands of schools have been closed, flights have been grounded, and levels of air pollution have soared.  It is estimated that more than 25,000 security forces are fighting the fires, particularly on the islands of Sumatra, Borneo, and Sulawesi. The haze is estimated to have caused billions of dollars of damage in Indonesia, Singapore, Malaysia, Thailand, and Vietnam. Ben Otto, Smoky Haze Costing Southeast Asia Billions of Dollars, Wall St. J., Oct. 9, 2015.

On October 5, U.S. negotiators announced that they had reached agreement on the largest regional trade agreement in history, the Trans-Pacific Partnership (TPP).  The 12 Pacific Rim countries that agreed to the accord account for nearly 40% of the global economy.  Environmentalists praised the provisions of the TPP that make it easier to crack down on trade in illegally harvested timber and endangered wildlife, but they are skeptical of the TPP’s dispute resolution procedures that may make it easier for businesses to challenge environmental regulations.  In the final days of the negotiations, the parties agreed specifically to bar the tobacco industry from using the dispute resolution mechanisms to challenge tobacco regulations.  While the World Wildlife Fund has praised the agreement, other environmental groups argue that it will make it more difficult for countries to regulate emissions of greenhouse gas emissions.

Sunday, September 27, 2015

IUCN Colloquium, Volkswagen Emissions Scandal, Pope Francis & Xi Jinping Visit U.S., Global Air Pollution Toll, Lahore Climate Decision (by Bob Percival)

It has been two weeks since I returned from Jakarta where I joined three of my former students in making presentations at the IUCN Academy of Environmental Law’s 13th annual colloquium at Atma Jaya University.  The theme of this year colloquium was “Forest and Marine Biodiversity.” In my presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law,” I explored the impact of Marsh’s 1864 book The Earth as Modified by Human Action, which helped launch a global movement to establish protected areas. Maryland 2L Renee Lani presented a paper on how the Lacey Act has been used to discourage importation of illegally harvested timber. Maryland 3L Maryann Hong discussed the impact of free trade agreements on global tobacco control efforts.  Taylor Kasky (Maryland Class of 2015) considered the impact of trade liberalization on global agriculture and food security in her presentation.

Rick Beckel, a 2015 graduate of my alma mater Macalester College, who served as a Global Environmental Justice Fellow at the law school this summer, made a presentation in which he analyzed how the concept of ecosystem services can be used to enhance efforts to preserve biodiversity. The Colloquium featured several notable speakers such as former International Court of Justice Judge Christopher Weeramantry, former Philippine Supreme Court Chief Justice Hilario Davide, Jr. and current Brazilian Supreme Court Justice Antonio Benjamin.

The most stunning news of the last two weeks has been the announcement by the U.S. Environmental Protection Agency (EPA) that Volkswagen installed software on its diesel vehicles that disabled their pollution control devices except when they were being tested.  After initially acknowledging that this software was installed on 482,000 vehicles Volkswagen sold in the U.S., the company later admitted that it was installed on 11 million vehicles worldwide.  This revelation led to the resignation of the company’s CEO and universal condemnation of the company.  Because the Clean Air Act provides for civil penalties of $37,500 per vehicle, the fine in the U.S. alone could be as high as $18 billion. But this is clearly a case where severe criminal penalties are warranted against the executives involved in this deception, which resulted in much higher levels of pollution from vehicles Volkswagen was touting as “green diesels”.  Title II of the Clean Air Act that governs mobile sources provides for civil penalties and it allows EPA to apply an administrative penalty of up to $200,000 that can be levied in a greater amount with the consent of the Attorney General.  The catch-all criminal penalty provisions of §113 do not specifically refer to violations by mobile sources, but they cover making false material statements, representations or certifications.

Last week Pope Francis and Chinese President Xi Jinping visited the U.S.  On September 24 Pope Francis addressed a joint session of Congress. Quoting from his encyclical Laudato Si he called “for a courageous and responsible effort to ‘redirect our steps’ and to avert the most serious effects of the environmental deterioration caused by human activity.”  He expressed the conviction “that we can make a difference and . . . that the United States – and this Congress – have an important role to play.”  President Obama hosted a state dinner for Xi Jinping on September 25.  The Chinese President announced that China would establish a nationwide cap-and-trade program for carbon emissions, based on the seven pilot emissions trading programs that the country has established in major Chinese cities.

In a study published in the Journal Nature on September 16, a group of epidemiologists estimates that outdoor air pollution, primarily PM2.5, causes 3.3 million premature deaths worldwide annually.  J. Lelieveld, J.S. Evans, M. Fnais, D. Giannadaki & A. Pozzer, The Contribution of Outdoor Air Pollution Surces to Premature Mortality on a Global Scale,525 Nature 367 (2015), published online at: http://www.nature.com/nature/journal/v525/n7569/full/nature15371.html. The scientists warn that if present trends continue 6.6 million people will die annually from air pollution by the year 2050.

On September 14 Judge Syed Mansoor Ali Shah of Pakistan’s Lahore High Court’s Green Bench found that the Pakistan government was not doing enough to combat climate change, which he described as “the most serious threat” faced by the country.  He ordered all of Pakistan’s relevant ministries to appoint point persons to deal with the issue and he established a Climate Change Commission to ensure that the government implement its climate commitments.  The court ruled in a public interest litigation (PIL) case brought by a farmer, Ashgar Leghari.

Monday, September 7, 2015

Canadian Supreme Court Rules Against Chevron in Ecuador Case, Dutch Court Holds Drillers Liable for Earthquake Damage, Global Tree Census, IUCN AEL Colloquium (by Bob Percival)

On September 4 the Supreme Court of Canada rejected Chevron’s claim that its Canadian assets cannot be used to satisfy a $9.5 billion judgment against it for oil pollution in Ecuador.  By a vote of 7-0, the Court upheld a December 2013 decision by the Ontario Court of Appeals rejecting Chevron’s claim that its Canadian subsidiary was a distinct corporate entity whose assets could not be used to satisfy a judgment against the parent corporation (see Dec. 22, 2013 blog post).  In the decision below the Court of Appeals famously had said: “Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. ‘We’re going to fight this until hell freezes over.  And then we’ll fight it on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction.  At this juncture, Ontario is that jurisdiction.” It is estimated that Chevron has $15 billion in assets in Canada.  

This decision is very significant because it rejects the corporate shell game defense that Chevron so far has used successfully in Argentina and Brazil to resist enforcement of the judgement.  The case now returns to the Ontario trial court where Chevron likely will claim that the Ecuador court’s judgment was obtained through fraud.  A federal district court in New York has agreed with Chevron’s claim in a RICO suit brought by the oil conglomerate, but that decision currently is under review by the U.S. Court of Appeals for the Second Circuit.

On September 2 a Dutch court in Assen held liable a joint venture between Royal Dutch Shell and Exxon Mobil (known as NAM) for declining property values caused by earthquakes related to natural gas production at the Gronigen field.  Twice this year the Dutch government has ordered reductions in production at the field because of the earthquakes.  The Dutch Safety Board, an independent organization funded by the Dutch government, previously had determined that the companies and Dutch regulators had failed adequately to consider the danger of earthquakes from natural gas production in the field. It is believed that the damages due homeowners could run into the billions of euros.  Reuters, Dutch Court Finds Gas Venture Liable for Earthquake Claims, N.Y. Times, Sept. 3, 2015, at B2.

On September 3 Nature magazine published the first comprehensive census of the world’s population of trees. T.W. Crowther, et al., Mapping Tree Density at a Global Scale, 1038 Nature 14967 (2015), online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature14967.html#close.  Using both sophisticated satellite imaging and on the ground tree counting, the researchers estimated that the planet has approximately 3.04 trillion trees, far more than previous estimates. “Of these trees, approximately 1.39 trillion exist in tropical and subtropical forests, with 0.74 trillion in boreal regions and 0.61 trillion in temperate regions.”  The study estimates that more than 15 billion trees are cut down each year, and that the global number of trees has fallen by approximately 46% since the start of human civilization.

Last week climate negotiations concluded in Bonn, Germany in preparation for the all-important COP-21 meetings in Paris in December.  The tenth part of the second session of the Ad Hoc Working Group on the Durban Platform for Advanced Action (ADP) was held from August 31-September 4.  As usual, some progress was made, though several difficult issues remain to be worked out.  The World Resources Institute reported the following: “While progress was uneven at times, the Bonn negotiators identified the most essential issues and began crafting a coherent architecture for the agreement. It was as though they were in a garage attempting to build an engine (battery powered of course), with parts lying about. Their task was to distinguish the various pieces, put them into clear categories, and then figure out how they should be ordered to build the engine. It’s a work in progress. The pieces are coming together, though you can’t see exactly what the final product will look like at this point.”

I currently am in Jakarta, Indonesia to participate in the 13th Annual Colloquium of the IUCN Academy of Environmental Law.  The theme of this year’s colloquium, which is being hosted by the Atma Jaya Catholic University of Indonesia, is “Forest and Marine Biodiversity.”  I will be giving a presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law.”  Two Maryland law students and a recent Maryland grad also will be presenting papers at the Colloquium, which includes environmental law experts from nearly 50 countries.

Sunday, August 30, 2015

Split Decisions over EPA Water Rule, Australian Premier Seeks to Limit Environmental Lawsuits, Shell Suspends Arctic Drilling Due to Weather (by Bob Percival)

Classes started last week at the University of Maryland Carey School of Law.  I have a wonderfully diverse group of students in my flagship Environmental Law survey course.  This year for the first time I also will be teaching a Special Topics course in Environmental Law for undergraduates on our College Park campus.  That course will start tomorrow.

In the last few weeks three federal district courts in the U.S. have weighed in on legal challenges to EPA’s new rule clarifying the reach of federal jurisdiction over “waters of the United States.”  EPA is attempting to clear up enormous confusion that has prevailed since the U.S. Supreme Court split 4-1-4 in the Rapanos v. U.S. cases in 2006.  In that decision Chief Justice Roberts expressly invited EPA to issue new rules clarifying the reach of its jurisdiction and indicated that they would be entitled to deference under the Court’s Chevron doctrine.  On August 26 Judge Irene Keeley of the Northern District of West Virginia dismissed a lawsuit challenging the new rule on the grounds that it should have been brought in the U.S. Court of Appeals. On August 27 Judge Lisa Wood of the Southern District of Georgia dismissed another lawsuit challenging the rules on the same rationale.  However, on August 27 Judge Ralph Erickson of the federal district court for North Dakota issued an injunction blocking the rules from taking effect in the 13 states who has sued in his court.   The Clean Water Act gives the courts of appeals jurisdiction to hear challenges to “any effluent limitation or other limitation”.  Judges Keeley and Wood declared that the EPA rules fall into the category of “other limitation,” but Judge Erickson disagreed because it “places no new burden or requirements on the States.” Why he went on to find that it would cause the states irreparable harm justifying an injunction is hard to understand.

As reported in this bog on August 8, on August 6 an Australian court reversed approval of the Carmichael Coal Mine and Rail Project that environmentalists argued will threaten the Great Barrier Reef.  The decision was based on the Environment Department’s failure to consider impacts on endangered reptiles in the vicinity of the project.  Angered by the decision, Prime Minister Tony Abbott is now pushing legislation to prevent judicial review of similar lawsuits by environmentalists.  He is arguing that otherwise Australia will be paralyzed by “lawfare,” a curious new term that he claims characterizes the U.S. legal system where environmentalists are able to use litigation to tie up the government in knots.

On August 19 I was interviewed live on the Australian Broadcasting Company’s nightly news program “The World.”  Anchor Beverley O’Connor interviewed me about the decision by the U.S. government to allow Royal Dutch Shell to drill for oil in the Chukchi Sea off the northern coast of Alaska.  The interviewed is online at: http://iview.abc.net.au/programs/world/NU1512H165S00#playing, but unfortunately the link apparently is only viewable from Australia.

Last week Shell suspended its drilling in the Arctic due to an impending storm that was predicted to bring high winds expected to produce very heavy seas. Next week President Obama will visit Alaska to emphasize the impact climate change is having on that state.

On August 17, Norway’s sovereign wealth fund announced that it would exclude four companies from its investment portfolio because they were insufficiently green.  The fund barred investments in South Korea’s Posco and Daewoo International Corporation and Malaysia’s IJM Corporation Bhd. and Genting Bhd.  The fund explained that it made the decisions “due to an unacceptable risk that the companies are responsible for severe environmental damage as a result of conversion of tropical forest into oil palm plantations.” These companies join a list of more than 60 other companies who have been placed off limits for investments by the fund for reasons including that their activities cause environmental damage or that they produce land mines, tobacco, nuclear weapons, or violate human rights.

On Thursday I leave for Jakarta, Indonesia, where I will be participating in the 13th annual Colloquium of the IUCN Academy of Environmental Law from September 7-12.  Two Maryland law students, a recent grad, and my summer global environmental justice fellow will be presenting papers along with me at the conference.  We also are bringing Maryland law filmmaker John Brosnan to produce a film of the conference.