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, June 19, 2014

June 16 Blog Post from China

I've just returned from three weeks in China where Blogspot is blocked by the government's "Great Firewall." Here is the blog post I made on my parallel blog at: www.globalenvironmentallaw.com:

I’m in the Beijing airport right now after a nearly three-week trip to China to serve as a visiting scholar at Shanghai Jiaotong University School of Law.  During the past week I made four presentations at four different Chinese institutions.  On Tuesday June 10 I spoke about “The Evolution of Environmental Law” at the Shanghai Academy of Social Sciences’s Center of Eco-Economics and Sustainable Development.  Following my lecture we had a lively discussion about why it has been so difficult for China to enforce its environmental laws.  

On Wednesday June 11 I took the high-speed train from Shanghai to Jinan where I gave an evening lecture on “Environmental Law in an Era of Globalization” at the Shandong University School of Law, Jinan, China, June 11, 2014.  Shandong University is where I taught a short course on environmental law in May 2012.  Shandong University Professor Zhang Shijun, who spent a year as a visiting environmental law scholar at Maryland hosted my visit. 

On Thursday afternoon June 12 I spoke to nearly 300 students at the Shandong University of Political Science and Law in Jinan.  The topic of my lecture was “Using Criminal Sanctions to Enforce Environmental Law.”  China has started doing more criminal enforcement of its environmental laws.  A week ago Professor Zhao Huiyu of Shanghai Jiaotong University attended a court proceeding involving the prosecution of a businessman for dumping chemicals.  Unfortunately, it is very difficult for foreigners to attend Chinese court proceedings so I was unable to accompany her.  It was a real privilege on Thursday afternoon to get to spend two hours with young Chinese students engaging in a fascinating discussion about the future of environmental law and the role of criminal sanctions in its enforcement.  I used a serious of examples of U.S. cases where I asked the audience to vote on whether or not the polluter should be prosecuted criminally.

On Friday June 13 Professor Zhao and I traveled about an hour and a half north of Shanghai to the Shanghai Chongming Dongtan National Nature Reserve.  The purpose of the trip was for local and regional environmental professionals to assess whether or not new legislation should be proposed to protect the amazing wetlands from the impact of future development.  Prior to the meeting the director of the reserve took Professor Zhao and I on an hour-long hike through the reserve.  He explained that the wetlands held in the reserve are part of a crucial flight path for birds migrating between Australia/New Zealand and northern Siberia/Alaska.  Approximately 290 different species of migratory birds can be found in the reserve.  Following the hike we participated in a conference with a group of Chinese environmental professors.  I spoke to the group on how wetlands are protected in the United States under U.S. environmental law.  The meeting ended with the group   drafting a resolution calling for additional legal protection of the Dongtan Reserve followed by a traditional Chinese banquet.

Last week we received word that the book of edited papers prepared for the IUCN Academy of Environmental Law’s “Global Environmental Law at a Crossroads” Colloquium has been published by Edward Elgar Publishers in London.  I co-edited the book with Professor Jolene Lin of the University of Hong Kong and William Piermattei, the Managing Director of our Environmental Law Program at Maryland.  There will be a book launch event celebrating publication of the book at the IUCN Academy of Environmental Law Colloquium in Tarragona, Spain on July 3.

Today there are articles in the Shanghai Post and the China Daily noting how difficult it is to win the “license lottery” that enables one to buy a new car in those cities.  Both cities are trying to limit traffic congestion by strictly regulating the number of new cars on the road.  In Beijing the odds of winning the lottery are only 2.2 percent.  The papers also note that the Chinese government shut down a chemical plant in Hunan Province after discovering very high levels of lead in the blood of children living near the plant.  


I am about to board the plane to return to the U.S.  I am looking forward to getting back home, albeit briefly, before leaving with my son for the World Cup in Brazil on Thursday. I am enormously grateful to Professor Zhao Huiyu for her incredible hospitality during my time at Shanghai Jiaotong University.

June 7 Blog Post from China

I just returned from three weeks in China where Blogspot is blocked by the Great Firewall.  Here is the June 7 blog post I made on my parallel blog at: www.globalenvironmentallaw.com:

On June 4 the Chinese government released its 2013 China Environmental Situation Report.  It reported that only 3 of the 74 major cities subject to tougher air pollution standards adopted last fall met the goals for reducing air pollution.  Li Ganjie, vice minister for environmental protection said that despite some improvements in environmental protection, air quality in cities remains a “serious” problem and the outlook for water quality is “not optimistic.” Groundwater quality was found to be poor or extremely poor at almost 60 percent of 4,778 groundwater monitoring sites.  Zhou Shengxian, minister for environmental protection noted that sulfur dioxide emissions declined by 3.5 percent in 2013 and chemical oxgen demand was reduced by 2.9 percent. He stressed the need to improve the legal system to address air, water, and soil pollution.  While the report covered the year 2013, Li stressed that the intensity of small particulate pollution (PM2.5) had declined by 10.3 percent during the first three months of 2014. Zheng Xin, Big Cities Struggle to Meet Pollution Standards, China Daily, June 5, 2014, at 1.  Noting that the Ministry of Environmental Protection describes the overall environmental situation as “grim” an editorial in the China Daily stated: “With all the input, of both pledges and resources, into an environmental cleanup, what this country achieved in 2013 appears less than impressive. . . . [W]e are now swallowing the bitter fruit of the poisonous but prevalent development philosophy that shouted ‘pollute first, address it later.’” Editorial, Grim Environment Challenge, China Daily, June 5, 2014, at 8.

World Environment Day was celebrated on June 5.  The theme for this year’s celebration, selected by the United Nations, was “Small Islands and Climate Change” and the official slogan was “Raise your voice, not the sea level.”  Tony de Brum, foreign minister of the Marshall Islands, reports that sea level rise has washed away the coffins of at least 26 Japanese soldiers who had been buried on a remote island.  

The Renewable Energy Policy Network for the 21st Century released a report on June 4 finding that global investment in renewable energy fell sharply in 2013.  European investment in renewable energy fell by 44 percent compared to 2012 while investment in renewables by developing countries declined by 14 percent.  China’s investment of $56.3 billion in renewables accounted for 61 percent of the developing country total.  In 2013 China for the first time had more new renewable power capacity come on line than new fossil fuel and nuclear capacity.  

The United Nations reported this week on the results of the Fifth Conference of the Parties to the Framework Convention for the Protection of the Marine Environment of the Caspian Sea.  The parties to the Convention, which is known as the Tehran Convention, include Azerbaijan, the Islamic Republic of Iran, Kazakhstan, the Russian Federation and Turkmenistan.  At COP-5, which was held in Ashgabat, Turkmenistan, the five nations agreed on a Biodiversity Protocol to protect species such as the Caspian sturgeon and Caspian seal.  Previous protocols to the Convention have dealt with oilo spill response and prevention of land-based pollution.

The Shanghai Environmental Protection Bureau (EPB) announced on June 6 that it had “blacklisted” 259 local companies during the first three months of the year for violating regulations limiting air or water pollution and the dumping of solid wastes.  Thirteen of the firms were ordered to close and 219 were required to change their behavior.  Eighty-four of the 219 firms have complied with these orders.  Zhao Wen, 259 Firms Guilty of Breaking Green Rules, Shanghai Daily June 7, 2014, at 4.

Residents of the Chinese village of Chendongyuan in Gansu Province have been protesting the deterioration of the town’s main road due to heavy traffic from oil company vehicles accessing PetroChina’s Changqing oil field.  As part of these protests 40 village residents blocked access to the oil field on Saturday.  One of the protesters, Wang Caixi, was killed when she was crushed under a truck that was attempting to break the blockade. Li Qian, Oil Field Protester Crushed to Death by Truck, Shanghai Daily, June 7 2014, at 5.


I am still in Shanghai where I will be giving a lecture on Tuesday at the Shanghai Institute of Social Sciences.  On Wednesday I am traveling to Shandong Province where I will deliver two lectures.  I return to the U.S. on June 16.

June 1 Blogpost from China

I just returned from three weeks in China where Blogspot is blocked.  Here is the June 1 post I made on my parallel blog at: www.globalenvironmentallaw.com.

I arrived in Beijing on May 28 and flew to Shanghai on May 29 to start a stint as a high-level visiting foreign expert at Shanghai Jiaotong University School of Law.  China’s severe air pollution problems dominate a lot of public discourse here.  The government seems open to trying just about anything to reduce air pollution.

The State Grid of China announced on May 27 that it will seek private capital to establish a distributed power network for electric vehicle chargers.  This was considered significant because it represented the first time the Grid had opened up to investment of private capital, something that China’s major oil companies had done in January.  The China Association of Automobile Manufacturers estimates that 14,000 electric vehicles and 3,300 plug-in hybrids were sold in China in 2013. Du Juan, Power Supplier Will Seek Private Capital, China Daily, May 28, 2014. 

The Russian power company Inter RAO is considering building the world’s largest coal-fired power plant in the Russian far east to supply electricity to China.  Boris Kovalchuk, the CEO of the power supplier, said that it was considering building an 8GW power plant near the Erkovetskya coal deposit in Russia’s far east. The world’s largest coal-fireed power plant today is the 5.5GW Taichung plant in Taiwan.  Kovalchuk noted that China needs more electricity and that Chinese officials would like it to come from plants outside the country in order to reduce Chinese air pollution. Reuters, Russian Firm Studying World’s Largest Coal-Fired Power Plant to Supply China, May 26, 2014.

Yesterday’s South China Post had a front page story on the discovery that the particulate pollution in China’s air contains extraordinarily high levels of toxic metals. Stephen Chen, Hazardous Levels of Trace Metals in China’s Air, South China Morning Post, May 31, 2013, at 1. In a study published in Environmental Science and Technology last year, Li Weijun, a professor of environmental science at Shandong University, found 200-250 microgramsof zinc per litre and levels of iron of 105 micrograms per litre in clouds on two Chinese mountains.  These levels are 10 to 20 times greater than levels of metals in U.S. particulate pollution.

China is making changes to encourage local governments to crack down on air pollution.  On May 26 Zhai Qing, China’s vice-minister for environmental protection announced that for the first time the Communist Party’s Organization Department, which decides on the promotion of local officials, and top leaders of the State Council will evaluate local officials based on how well they do in meeting goals for reducing air pollution in 338 cities pursuant to the Airborne Pollution Control Action Plan that was unveiled last September.  This Plan calls for reductions of between 25% and 10% in levels of PM2.5 in various areas of China during the period 2013-2017.  The central government also pledged to give more financial support to regions that reduce air pollution, while reducing support to regions that fail to achieve the goals.  Wu Wencong, Appraisal to Facilitate Clean Air Endeavor, China Daily, May 29, 2014, at 3.

A comprehensive survey of Chinese wetlands begun in January 2010 has concluded that Tibet has more than 38,000 wetlands.  China’s largest wetland area is the Sanjiang Plain Nature Reserve in Heilongjiang province, which covers more than 10 million hectares.  About two-thirds of Tibetan wetlands currently are in conservation areas and by 2020 Tibet will be required to preserve at least 6.4 million hectares of wetland areas.  Hu Yongqi & Da Qiong, Tibet Ranks Second in Wetland Preservation, China Daily, May 29, 2014, at 7.

On May 30 Shanghai Jiaotong Professor Zhao Huiyu and I had dinner with Sushu Wang, a Maryland law student who is spending the summer working as an intern with the Shanghai Environmental Protection Board (EPB).  Sushu was born in Nanjing, but moved with her family to the U.S. when she was two years old.  She described how the Shanghai EPB responds to complaints about pollution and noted that she has been able to accompany EPB staff as they serve papers on polluters.

On May 31 Professor Zhao and I accompanied a group of students participating in the University of Santa Clara Law School’s summer program in China on a trip to the ancient Chinese city of Xitang.  Xitang, which is located about 80 minutes southeast of Shanghai, is a city of canals that has become a major tourist attraction, though we appeared to be among the few foreign tourists there on Saturday.  Xitang has lots of well-preserved buildings and bridges dating from the 14th through the 19th centuries.  


I am quoted in today’s Washington Post in a column by Robert McCartney criticizing Midwestern attorneys general for filing briefs supporting the Farm Bureau’s appeal of a decision upholding the EPA’s total maximum daily loadings (TMDL) plan for cleaning up the Chesapeake Bay. Robert McCartney, Distant States Seek to Disrupt Our Region’s Chesapeake Bay Cleanup Plan, Washington Post, June 1, 2014. McCartney called me in Shanghai to interview me for the article. I will be in China until June 16 giving a series of lectures in both Shanghai and in Shandong Province.

Sunday, May 25, 2014

Japanese Court Blocks Reactor Restart, BP Again Loses Challenge to Settlement, China May Expand Tax Incentives for Electric Cars, China Trip (by Bob Percival)

On May 21 a court in Japan ruled that the Kansai Electric Power Company cannot restart two of its nuclear reactors due to safety concerns.  The ruling from the Fukui District Court is a blow to the plans of Prime Minister Shinzo Abe to bring back online the country’s nuclear power plants that were idled following the 2011 Fukushima Daiichi nuclear disaster. The court cited uncertainty concerning the ability of Oi reactors 3 & 4 in western Japan to withstand an earthquake.  The court’s ruling came in response to a lawsuit brought by 189 plaintiffs who live within 250 kilometers of the Oi plant.  Mari Iwata, Japan Court Blocks Reactor Restarts, Wall St. J., May 21, 2014.

On May 19 a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied BP’s motion for reconsideration of its ruling upholding the Claims Administrator’s interpretation of BP’s agreement to settle claims arising out of the March 2010 Deepwater Horizon oil spill.  BP argued that it was unconstitutional for the Claims Administrator to be able to pay claims regardless of whether claimed losses were actually caused by BP’s conduct.  The two judges in the majority concluded that in the settlement agreement BP had agreed to certain indirect means of connecting a claim to BP’s conduct in the Gulf “that sufficiently satisfied each party’s litigation interests.”  The judges concluded that “In settling this lawsuit, the parties agreed on a substitute for direct proof of causation by a preponderance of evidence.  By settling this lawsuit and agreeing to the evidentiary framework for submitting claims, the plaintiffs did not abandon their allegations of Article III causation.”  By a vote of 8-5 the entire Fifth Circuit then denied a rehearing en banc.  BP’s only recourse now is to seek review by the U.S. Supreme Court.  While there is no possibility of a circuit split on this issue, which usually is the primary reason the Supreme Court would grant review, the five dissents might increase the chances of Supreme Court review.

Beijing Business Today reported that the Chinese government is considering whether to extend the subsidies it offers to purchasers of domestically-produced electric cars to electric cars that are imported into China. U.S. electric car manufacturer Tesla Motors, which has begun selling its cars in China, has asked the Chinese government to enable purchasers of its cars to qualify for the tax incentives, which range from 35,000 to 60,000 yuan ($5,700 to $9,800).  Miao Wei, minister of Industry and Information Technology, also indicated that the Chinese government is considering offering foreign electric car manufacturers incentives to build their cars on the mainland.  Tesla is rumored to be interested in establishing an assembly facility in China to complement its existing facilities in California and the Netherlands.

I will be spending the next three weeks in China as a high-level visiting foreign expert at the Shanghai Jiaotong University School of Law.  China’s firewall usually blocks this website but I should be able to post regularly on my parallel blog at: http://www.globalenvironmentallaw.com.

Tuesday, May 20, 2014

Indian Election, Eli Lilly Fined by Brazil for Worker Exposure to Toxics, German Nuclear "Bad Bank" Proposal, Graduation, Global Public Health Grant (by Bob Percival)

Last week voters in India completed the largest election in history by sweeping the Bharatiya Janata Party (BJP) to power, making Narendra Modi the prime minister-elect of India.  More than 814 million people were eligible to vote in the election, which was held on nine polling days extending over five weeks.  While many believe that Modi’s pro-business policies may be bad for the environment, the new prime minister pledged during the campaign to clean up the horrendously-polluted Ganges River.  It is estimated that 300 million liters of raw sewage and industrial pollutants are dumped into the Ganges every day.  Modi has used his pledge to clean up the Ganges as a metaphor for his campaign to clean up corruption in India.  While there is wide public support for cleaning up the river, many express skepticism concerning Modi’s environmental record, noting that he claims to have cleaned up the Sabarmati River, which is still polluted.  Shreeva Sinha, A River Is Revered, Fouled, and the Symbol of an Election Campaign, N.Y. Times, May 15, 2014, at A7.

Eli Lilly and a unit of the Italian company ACS Dobfar were fined $1 billion reals ($450 million) for exposing hundreds of workers to toxic substances at a chemical plant 140 kilometers from Sao Paulo.  Judge Antonio Rita Bonardo found that the vast majority of workers tested showed evidence of heavy metals and other toxics in their blood.  The judge also prohibited the plant from operating for a year.  The ruling is the result of a lawsuit filed against the companies in 2008 to redress worker exposure to toxics.  The judge also required the companies to pay for medical treatment of workers who worked at the plant for more than six months as well as the cost of medical treatment of their children. Paul Kiernan, Brazilian Judge Fines United Over Worker Illnesses, Wall St. J., May 12, 2014, at B3.

A proposal to create a “nuclear bad bank” to take responsibility for the decommissioning of nuclear power plants in Germany has met with skepticisim.  German utilities Eon, RWE and EnBW have been in discussions to create a state-owned foundation to oversee the decommissioning process as the country phases out nuclear power.  German environment minister Barbara Hendricks rejected the “bad bank” idea, stating that “The full responsibility for the safe phasing out, closure, decommissioning and interim storage of nuclear waste lies with the energy companies.” Jeevan Vasager, German Utilities and Government Clash over Nuclear ‘Bad Bank’,” Financial Times, May 11, 2014

On May 16 the University of Maryland Carey School of Law held its commencement exercises.  A total of twenty-one students graduated with the certificate of concentration in environmental law.  Since 1998 a total of 346 students have graduated with the environmental law concentration.  On May 15 the Maryland Environmental Law Program held a reception to honor the 21 J.D. students graduating with a certificate of concentration in environmental law.  We also honored Yuezhu Liu, who graduated with an LL.M. focused on environmental law.  Her family from Nanjing, China, attended the ceremony, including her father who is the chair of the environment and natural resources committee of the Jiangsu Bar.


On Wednesday May 14 I was honored as one of the recipients of an Interprofessional Global Health grant at a ceremony held in the Gladhill Board Room on the University of Maryland Baltimore campus.  The ceremony also included many of the students who will be participating in the multi-disciplinary projects this year.  My project was inspired by Julie Weisman of the Water Resoures Action Project who went to Israel with me and some Maryland students last year.  Next spring break we will return to Israel with a multi-disciplinary group of students from Maryland’s law, business, and public health schools to work on policies to facilitate greater use of greywater recycling.

Monday, May 12, 2014

China & the World Conference, Oped on Supreme Court Mistakes, Chevron Patton Boggs Settlement, Hangzhou Protests (by Bob Percival)

On Saturday I was one of the guest speakers at a terrific conference at the University of Chicago on “China and the World: Business, Politics, and International Relations in the Age of an Asian Superpower.”  Most of the speakers were professors of international relations, political science, or economics.  I was the only law professor who spoke at the conference and the only speaker to focus entirely on efforts to combat China’s environmental problems. The conference organizers took very good care of us.  They sent a stretch limousine to take us from the hotel to the conference, gave us a “green room” in which to prepare in the university’s famed International House, and introduced us to University of Chicago President Robert Zimmer prior to the start of the conference.

I really enjoyed hearing perspectives on China from other disciplines.  Keynote speaker Yao Yang, director of the China Center for Economic Research at Peking University, noted that government and state-owned enterprises still account for 60% of China’s economy.  He argued that China’s various government ministries have become  the equivalent of U.S. special interest groups.  Yang predicted that growing inequality in China ultimately will hurt the country’s economy.  Former George Washington Business School dean Doug Gouthrie argued that the U.S. has become a junior partner in China/U.S. business relations.  He described the dressing down he received from several prominent Chinese investment groups when he took D.C. Mayor Vincent Gray to China to talk up investments in Washington, D.C.  Siva Yam, president of the U.S.-China Chamber of Commerce, argued that China has hurt its economy’s long-term prospects by making massive investments in fixed assets instead of research and development, which may account for why China has not invented anything of significance in the last century. 

Vikram Nehru from the Carnegie Endowment for International Peace, who was one of the principal authors of the World Bank’s “China 2030” report, noted that China has uniquely high levels of savings and investment.  He noted that many of the recommendations of the World Bank report have been embraced by Chinese authorities and he rejected the prescription that China simply should try to stimulate greater domestic consumption. Nehru expressed optimism that China’s massive investments in education would improve the country’s human capital and he deemed negotiations of a future free trade agreement between the U.S. and China to be critical.  Robert Kapp, former president of the U.S.-China Business Council, complained that uneven enforcement of Chinese laws and regulations hurts foreign competitors, but he noted that virtually all foreign companies in China are still making money.  University of Chicago Professor John Mearsheimer, viewing the world as a centuries-old competition among nations for dominance, gave his standard talk on how military conflict between the U.S. and China is virtually inevitable.  

Phil Saunders, director of the Center for Study of Chinese Military Affairs, noted that even countries that do not trust each other are continuing to expand bilateral trade and investment because they now care more about increasing economic growth and improving living standards.  Former U.S. Ambassador to Ethiopia David Shinn, who I discovered is a neighbor of mine on Capital Hill, gave a terrific talk on China’s efforts to cultivate African countries.  He noted that 50 of the African continent’s 54 countries now support China instead of Taiwan.  Shinn observed that even though the U.S. still provides more aid to African countries than China does, China has better relations with more African countries than the U.S. has.  I spoke about China’s efforts to combat its immense environmental problems, describing our March testimony before the Standing Committee of the National People’s Congress and the changes in China’s basic Environmental Law that it helped inspire.

On Sunday May 11 the Baltimore Sun published an oped (“A Supreme oops”) I wrote that reviewed the history of errors in Supreme Court decisions. The oped was inspired by Justice Scalia’s dissent in the EME Homer decision in which the Court upheld EPA’s regulations of interstate air pollution under the Clean Air Act.  I described a situation where I narrowly averted what would have been an embarrassing mistake in a decision I had helped Justice White draft while working as his law clerk. I also noted some examples of where mistakes in slip opinion subsequently were corrected by the Justices. The oped is available online at: http://www.baltimoresun.com/news/opinion/oped/bs-ed-justice-gaffes-20140509,0,526654.story

On Tuesday May 6 the White House released the third National Climate Assessment, which is available online at: http://nca2014.globalchange.gov/highlights#section-5682. The report summarizes the likely impacts of climate change on the U.S. It is based on research by a team of 300 experts who reported to a 60-member federal advisory committee. The report concluded that the effects of climate change already are being felt throughout the U.S.  It warns that action should be taken now to avoid some of the most damaging future effects of climate change.  

While seeking to stave off bankruptcy and to facilitate a merger with another law firm, Patton Boggs stunned the legal world last week by agreeing to a unprecedented settlement of Chevron’s RICO suit against it.  Patton Boggs had joined the decades-long effort to hold Chevron accountable for polluting the Oriente region of Ecuador only after the plaintiffs had won an $9.5 billion judgment.  As part of its “scorched earth” litigation tactics in the case, Chevron sued all of the plaintiffs and their lawyers under the Racketeering Influenced Corrupt Organizations (RICO) Act, alleging that they were part of a massive fraudulent shakedown operation.  Patton Boggs, which had not been involved in any allegedly fraudulent activities, agreed to pay Chevron $15 million and to provide it with evidence that might be used against its former client, raising serious ethical concerns.

Intense clashes occured last week between Chinese police and protesters opposing the siting of a waste incinerator near Hangzhou.  Responding to the protests, the Hangzhou government said the project would not proceed without public support.  The incinerator is designed to handle 36% of the city’s waste.  James T. Areddy, Incinerator Plans Spur Clashes in China, Wall St. J., May 12, 2013, at A8.

P.S. On May 4 my first grandchild, Zoe Ariana Griffin, was born.  Details (and baby photos) are available in a May 5 blog post on my parallel blog at: http://www.globalenvironmentallaw.com

Wednesday, April 30, 2014

China Amends its Basic Environmental Law, Lecture in UAE, Supreme Court Upholds EPA Transboundary Pollution Rule (by Bob Percival)

Last week China’s National People’s Congress (NPC) adopted far-reaching amendments to China’s basic Environmental Law.  The amendments incorporate many of the recommendations I made when testifying before the Standing Committee of the NPC on March 19 (see March 25, 2014 blog post).  A prominent Chinese environmentalists emailed me that “we are all so incredibly excited, over the moon, really” about the new provisions, which are the product of years of advocacy by Chinese environmentalists.  Here are some of the specifics of the new amendments, as described by NRDC’s Beijing office: 

(1) Daily penalties. The new law has established a "blacklist" system, which records environmental law violation information in a new record system and a list of violators will be released to the public. More importantly, the new law has adopted daily penalties, providing that from the next date when a competent administrative agency ordered a violator to correct its illegal behavior but the violator fails to, the agency may order continuous penalties on a daily basis, according to the original amount of penalty. The new law also provides local governments with more discretion to increase the types of activities may incur daily penalties.

(2) Environmental public interest litigation. The law establishes the environmental public litigation provision and grants the standing of plaintiffs in environmental public interest litigation to social organizations which have registered with the governmental civil affair departments above city level, have specialized in environmental public interest activities for more than 5 years, and do not have any law-breaking record. To tackle difficulties in having cases accepted by courts, the new law also clearly provides that courts must accept cases filed by qualified social organizations in accordance with the law. This breakthrough is a strong supplement to the public interest litigation clause in the Civil Procedure Law.

(3) Basic concept of the Environmental Protection Law. The new EPL elevates the importance of environmental protection; "the work of environmental protection must be coordinated with economic construction and social development" has been changed to "the work of economic and social development must be coordinated with environmental protection."

(4) Environmental information disclosure and public participation. The new EPL dedicates an entire chapter to provisions for environmental information disclosure and public participation. It makes specific provisions for the disclosure of environmental supervision information, monitoring information, corporate environmental information, and also for citizens' access to environmental information and participation and supervision of environmental protection.

(5) Permitting  system. The new law establishes the pollutant discharge permit system and clearly stipulates that enterprises, institutions, and other production operators under the pollution discharge permit management system must discharge pollutants within the stated range of emissions on their permits. Without obtaining emission permits, an operator is not allowed to emit any pollutant.

(6) Ecological red lines. The new law provides that the nation sets ecological bottom lines ("red lines" as referred to in the law) and implements strict protection for key ecological function zones and ecologically sensitive or vulnerable zones. Also, according to the law, governments above provincial level are obliged to organize investigation and evaluation of environmental conditions, and to establish early warning mechanisms to detect environmental problems. The new law requires that environmental protection departments must suspend approval of construction projects' EIA documents in areas where pollutants exceed national total emission control targets for major pollutants or in areas that fail to accomplish national environmental quality objectives.

(7) Strengthened enforcement authority. The new EPL clearly strengthens the authority of environmental protection departments to strengthen the deterrent effect of environmental law:

*   It clarifies the administrative enforcement measures environmental protection departments can take. For the illegal discharge of pollutants causing or likely to cause severe pollution, environmental protection departments above the county level and other departments responsible for environmental supervision or management can close down or seize facilities and equipment causing the pollution.

*   it clarifies the legal status of environmental monitoring institutions entrusted by the competent departments of environmental protection administration, empowering them to make on-site inspections of enterprises and other producers that discharge pollutants.

*  it provides for four types of serious cases of environmental violations where responsible persons could face administrative detention, including: if their company didn't undertake an EIA and refused to suspend production after being issued a ban, discharged pollutants without a pollutant discharge permit, falsified monitoring data, or continued to use pesticides banned by the state after being ordered to make corrections.”

On Saturday April 26 I flew from Washington to Dubai to give a lecture on “Environmental Law in an Era of Globalization” at the American University of Sharjah in the United Arab Emirates (UAE). Professors Mohamed Abouleish and Gary Gold, who served as my hosts, are co-teaching what is believed to be the only environmental law course offered in the UAE.   As I pointed out in my lecture, which was given on April 28, the UAE has the second highest per capita emissions of greenhouse gases in the world, second only to Qatar.  The country uses oil to provide for virtually all of its energy needs and its water is provided by energy-intensive desalination plants.  An experiment with solar power apparently was abandoned after it was determined that desert dust storms made it too expensive to clean the panels frequently.  Fortunately I was in the UAE for what the locals called a “cool spell.”  The temperatures, which can range from 120 to 130 degrees Fahrenheit in summer months, were only approximately 100 degrees.   The sheik who rules Sharjah has placed a particular emphasis on education and the American University of Sharjah is one of seven schools located in a beautiful “University City” complex.  I arrived back in the U.S. on the morning of April 29.  Photos that I took while in the UAE have been posted in the “Photo Albums” portion of my parallel website at: http://www.globalenvironmentallaw.com. This was my first visit to the UAE, the 83rd country I have visited.

On April 29 the U.S. Supreme Court delivered an important victory to the U.S. Environmental Protection Agency by reversing the D.C. Circuit’s decision that had struck down the EPA’s interstate air pollution rule.  (See the December 16, 2013 blog post concerning the oral argument before the Supreme Court). The D.C. Circuit’s decision had represented a new height of judicial activism by the D.C. Circuit, which imposed such demanding requirements on EPA that it would have been extremely difficult for the agency to implement the interstate air pollution provisions of the Clean Air Act (CAA).  The Supreme Court reversed the D.C. Circuit, reinstating EPA’s rule, in a 6-2 decision with Justice Alito recusing himself.  What seems particulary significant is that both Chief Justice Roberts and Justice Kennedy joined Justices Breyer, Sotomayor and Kagan in embracing in full Justice Ginsburg’s majority opinion.  Justice Ginsburg has been the Justice who in the past has been the most sympathetic toward environmental concerns.  The case turned in large part over whether EPA had violated the CAA by basing states’ obligations to control transboundary pollution on what measures can be undertaken most cost-effectively.  EPA’s rule thus avoided penalizing states that already have done the most to control interstate air pollution.

Justice Scalia dissented, in an opinion joined by Justice Thomas.  He even read his dissent from the bench to emphasize how strongly he rejected EPA’s arguments.  However, Justice Scalia made a major blunder in his slip opinion.  He accused EPA of having previously tried to incorporate costs into the Clean Air Act, citing the 2001 American Trucking decision.  However, it was industry groups and not EPA who had made this argument in American Trucking, a decision authored by Justice Scalia.  Apparently Scalia was sufficiently embarrassed by his mistake to change this portion of his dissent because a new sentence and subheading were substituted on the Court’s website this morning.  Not since 1983 when Justice Rehnquist’s slip opinion in Ruckelshaus v. Sierra Club inadvertently disclosed that the Justices originally had voted the other way (see my article “Environmental Law in the Supreme Court: Highlights from the Marshall Papers,” 23 ELR 10606, 10621 (1993)) has such an embarrassing mistake been made by a Justice in an environmental case.  


Tens of thousands of protesters have succeeded in temporarily halting the construction of two nuclear reactors at a site outside of Taipei.  Protesters overwhelmed police and took over control of an eight-lane highway.  Taiwanese President Ma Ying-jeou has pledged to call a referendum to determine whether to complete construction of the plants whose proximity to earthquake faults has raised public concern.