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, March 1, 2015

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

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

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

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

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

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

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

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


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

Sunday, February 22, 2015

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

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

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

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

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


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

Sunday, February 8, 2015

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

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

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

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

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

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

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

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

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

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

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


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

Friday, December 26, 2014

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

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

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

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

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

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

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

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


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

Thursday, December 25, 2014

Dec. 13 Blog Post: China Trip, Wall Street Journal Letter, Oil Price Plunge (by Bob Percival)

I posted the following on my parallel blog (globalenvironmentallaw.com) on Saturday Dec. 13.  I was unable to post on this blog at the time because I was in China where the government's "great firewall" blocks Blogspot, which is the reason I maintain two parallel blogs.

Last week I flew to Zhengzhou, China, capital of Henan Province, to give some lectures on environmental law.  Prior to leaving Shanghai I participated in two classes at New York University’s Shanghai Center in Pudong on December 8.  The classes included both students from NYU and from East China Normal University.  One class focused on environmental law and the other on cultural influences on legal systems.  Students in each class are engaged in some really interesting research projects that explore comparative aspects of law in China and the U.S.

When I landed at the Zhengzhou Airport on December 9 I was greeted by Professor Xiao Qian Gang, one of the fathers of Chinese water and natural resources law who was involved in drafting landmark legislation on these subjects during the 1970s.  Professor Xiao is now 80 years old, but he has amazing energy and we spent three days exploring Henan Province together.  On the way into Zhengzhou we stopped at the Foxconn plant near the airport where Apple’s iPhones are made.  The complex is gigantic with eight enormous buildings covering the size of a small city.  My hosts thought that 100,000 workers work in the complex, but the plant personnel said that it was closer to 200,000.  During my lectures, I told my audiences that my iPhone was excited to return to the place of its birth.

On the evening of December 9 I gave a lecture to approximately 100 law students at Zhengzhou University.  The law school emphasizes environmental law and one of their professors had used my casebook while studying in the United States.  The students treated me like a rock star, asking me to pose for photos with them and taking selfies (‘su pi”s in Chinese) with me - a few even asked me for my autograph after the lecture.  

On December 10 my hosts took me to the Shaolin Temple, the birthplace of martial arts, which is located about a 90-minute drive from Zhengzhou at Shaoshi Mountain in Dengfeng.  It had snowed lightly the night before and a sheet of ice covered the trails.  The monastery mobilized the martial arts students to remove the ice with sticks and brooms to make hiking less periolous. We hiked a considerable distance exploring the sprawling complex and watched a kung fu demonstration.  We then drove to the town of LuYuan for lunch followed by a trip to the spectacular Longmen Grottos.  The Longmen Grottos are where approximately 20,000 buddha statues have been carved into rock cliffs along the banks of the Yi River.  We hiked up into the cliffs to see the carvings.  Photos from the trip will be placed in the Photo Album portion of this website shortly.

On December 11 we traveled to the town of Kaifeng, the capital of China during the Song Dynasty in east-central Henan Province.  Kaifeng is believed to have been the largest city in the world exactly 1000 years ago.  In the morning we visited Millenium City Park and the Xuande Palace, home of the Chinese emperors during the Song Dynasty.   After lunch we visited a Song Dynasty theme park where we witnessed the reenacted of an ancient battle with warriors, including a female general, on horseback.

On Friday December 12 I gave a 90-minute lecture on environmental law at the Henan University of Economics and Law.  There were approximately 250 students in the audience.  Most of them did not speak English, but the translation was excellent.  During the question and answer session one student stood up and asked a question that she had written out in English.  When I complimented her in Chinese and said I wish my Chinese was as good as her English, the students all applauded her.  Her question concerned the perceived tradeoff between economic growth and environmental regulation in China.  In response I cited several examples of instances where economists had forecast doom from environmental regulation only to be proven wrong.  While it its true that regulation creates winners and losers and the coal industry is losing throughout the world right now, renewable energy projects are a source of economic opportunity. In my discussions with Chinese students it seems clear that China’s environmental problems are a big concern to them, but they seem encouraged by the Chinese governments willingness to endorse the new U.S./China climate agreement.

I flew back to Shanghai on Friday night.  On Saturday morning December 13 I spoke about the U.S. Supreme Court to a class of Chinese lawyers who are enrolled in Emory University’s Comparative Law Program at Shanghai Jiaotong University.  The students in the class, most of whom work for law firms in Shanghai, will be spending the spring semester at Emory in Atlanta. Many of them then plan to stay in Atlanta to receive the LLM degree from Emory.  After the class the students took the professor, Dan Guttman, and I out to lunch at a nearby restaurant.

In Lima, Peru the Conference of the Parties to the UN Framework Convention on Climate Change has gone into overtime as negotiators struggle to bridge a divide over loss and damage and contributions to a green climate fund to compensate developing countries.  The contours of a likely agreement that could be signed next year in Paris have become clear and they look much like an extension of the Copenhagen Accord that relies on voluntary commitments from each country.  

David Doniger of NRDC and I had letters to the editor published in the Wall Street Journal of December 13-14.  Our letters criticized Harvard Law professor Laurence Tribe’s claim on behalf of Peabody Energy that EPA’s Clean Power Plan is illegal and unconstitutional.  My letter notes that Tribe frequently has made extreme constitutional claims against EPA on behalf of industry groups, but no court has agreed with him.  The letters are available online at: http://www.wsj.com/articles/prof-tribe-may-not-get-very-far-on-his-epa-brief-letters-to-the-editor-1418421985.

In other news last week: 

On December 11 the Supreme Court of Canada heard oral argument on the question whether plaintiffs can enforce a $9 billion judgment by an Ecuadoran court against Chevron for oil pollution in Ecuador.  

An oil spill in a protected wetlands area in Bangladesh that occurred when a ship sunk has led environmentalists to criticize the fact that commercial ship traffic is allowed at all in the area.  

China opened a key section of its massive south-to-north water project running 860 miles from the Danjiangkou Reservoir in Hubei Province to supply 9.5 billion cubic meters of water a year to northern China.  Water from the first stage of the $80 billion project was barely usable when it reached Tianjin last year because it had picked up so many pollutants while traveling north. 

Global oil prices continued to collapse last week with crude oil prices plunging below $60 a barrel.  Chinese authorities are seizing the opportunity to cut fuel subsidies, a move that other countries should emulate.  If the petroleum price stabilization tax that I advocated during my presentation to the IUCN Academy of Environmental Law Colloquium last summer in Tarragona had been in effect, plunging oil prices would not harm renewable energy projects, but rather would only cut government deficits.

The budget deal that the U.S. Congress approved last week apparently bars the Export-Import Bank from eliminating loan guarantees for fossil fuel projects in other countries.


Tomorrow morning I am giving a lecture at the Shanghai College of Politics and Law.  I will be spending a good part of the week grading my Environmental Law exams, which should arrive by Fedex tomorrow.  I fly back to Beijing on Friday and then back to Washington on Saturday.

Dec. 6 Blog Post: China Trip, Lima Climate Talks, EPA Ozone Proposal (by Bob Percival)

The following was posted on my globalenvironmentallaw.com site on Saturday Dec. 6.  I was unable to post on this blog because the Chinese government's "great firewall" blocks Blogspot.

I have been in China for the past week where I am finishing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  I arrived in Beijing on Saturday to some of the worst air pollution I had ever seen in China.  It was not even possible to see Terminal 3 from the runway and it only appeared when the plane pulled into the gate.  Rains Saturday night combined with extraordinarily high winds (which killed some people in Beijing when materials blew off a building under construction) cleared out the air on Sunday.  On Monday I flew to Shanghai where I am staying at the Faculty Club on Shanghai Jiaotong’s Xuhai campus where I have a temporary office at the KoGuan Law School.

On Wednesday Dec. 3 I delivered a lecture on the topic “Is Divided Government Dysfunctional?” The lecture was held at the suburban undergraduate campus of Shanghai Jiaotong.  My hosts had asked me as a constitutional law professor to address a broader topic than environmental law in order to appeal to students from several departments.  It seemed to work because I had a large audience of students from many disciplines, including several electrical engineering students.  In my lecture I reviewed the history of divided government in the U.S.  I noted that, counting the new Congress, the same political party will have controlled the Presidency and both houses of Congress only twice (1993-1995 and 2009-2011) in the 18 most recent sessions of Congress and only four times (adding the post-Watergate Congresses of 1977-1981) in the last 24.  I then reviewed the history of government shutdowns and budget battles between the President and Congress as a possible preview to the kinds of battles that will occur between President Obama and the new Republican Congress.  I raised the question whether some of the problems enforcing China’s laws might be due to the fact that they are not the product of the kind of hard fought compromises with the regulated community. After lecturing for 90 minutes, I had a lively discussion with the students during a half hour question and answer session.  After the session was over a large group of students approached me and we spoke for another 30 minutes.  It is such a privilege to get to engage with bright young Chinese students who are concerned about the future of government.

On Friday Dec. 5 I visited the DeTao Academy on the campus of the Shanghai Institute of Visual Arts in the southwest suburbs of Shanghai. I have been appointed as one of DeTao’s “masters,” the only one who specializes in law.  I contributed copies of my Environmental Regulation casebook and Statutory and Case Supplement to the DeTao Library and was given briefings on various environmental projects DeTao is pursuing.  I met with the staff of DeTao master Kevin Erwin who are working on a large wetlands restoration project on Hainan Island.  They noted that China does not have a national wetlands protect law and thus there is less impetus for wetlands mitigation and banking projects in China than in the U.S.  I also met with officials from DeTao’s Institute for Green Investment who are working with DeTao master Bob Costanza to develop the first “natural capital balance sheet” for the mayor of Sanya, the principal tourist destination in Hainan Province.

This week the nations of the world have been meeting in Lima, Peru for the 20th Conference of the Parties to the UN Framework Convention on Climate Change and the 10th Meeting of the Parties to the Kyoto Protocol (COP-20/CMP-10).  It is hoped that this conference will lay the groundwork for a new global agreement in Paris next year to control emissions of greenhouse gases (GHG).  Here in China there is considerable discussion of the historic U.S./China climate agreement that was announced last month.  Many note that China’s commitment to cap its GHG emissions by 2030 reflects what many Chinese officials had been hinting at over the years, though they acknowledge that China’s emissions currently are rising so rapidly that it will take dramatic changes to achieve the goal. They do give the U.S. credit for pushing environmental initiatives (specifically the phaseout of HFCs) at President Obama’s first summit with Chinese President Xi Jinping in June 2013.  This and commitments for technological collaboration on carbon capture helped cement the new agreement. 

On November 25 EPA proposed new regulations to lower the national ambient air quality standard (NAAQS) for ground-level ozone.  The agency proposed to lower the current standard for ozone from 75 parts per billion (ppb) to a range between 65 and 70 ppb.  Former EPA Administrator Lisa Jackson had sought to make a similar proposal in 2011, but it was blocked by opposition from President Obama and the Office of Management and Budget.  EPA is required to review and revise, if necessary, the NAAQS every five years, a deadline that expired in 2013 for the ozone NAAQS.  The agency released its ozone proposal shortly in advance of a court-ordered deadline.

On Saturday I was presented with copies of my new treatise on Environmental Law that has been published in Chinese by Law Press of China.  I began work on the treatise as a project for the Federal Judicial Center in the U.S., a project that is still incomplete.


Today I will participate in two classes for NYU’s Shanghai program. Tomorrow I will fly to Zhengzhou, the capital of Henan Province, to deliver a series of lectures.  My hosts have promised also to take me to the famous Shaolin Temple, the birthplace of martial arts.

Thursday, November 27, 2014

Montreal Protocol Talks Focus on HFCs, Supreme Court to Hear MATS Cases, Macalester Visit, China Trip (by Bob Percival)

Representatives from more than 100 countries who are parties to the Montreal Protocol on Substances that Deplete the Ozone Layer met in Paris from November17- 21, 2014 for their 26th Meeting of the Parties (MOP).  The meetings focused largely on efforts to expand the Protocol to phase out hydrofluorocarbons (HFCs), substances that are potent greenhouse gases.  Because many substances that deplete the ozone layer also are greenhouse gases, the Montreal Protocol, adopted in 1987, actually has been responsible for reducing more GHG emissions than the Kyoto Protocol.  Most countries now agree that it would be wise to use the Montreal Protocol to phase out HFCs.  Although China and India previously had been obstacles to reaching agreement on this issue, they have agreed to support such an initiative, in part due to personal diplomacy by President Obama in meetings with Chinese President Xi Jinping and Indian Prime Minister Narendra Modi during the last 18 months.  David Doniger, director of NRDC’s climate program who attended the Paris meetings, reports that the delegation from Saudi Arabia was the largest obstacle to reaching an agreement, perhaps as part of a larger strategy to stall global climate negotiations (http://switchboard.nrdc.org/blogs/ddoniger/countries_accelerate_talks_on.html).  Agreement was reached in Paris to accelerate the negotiations on HFCs in hopes that a final agrement can be reached at MOP-27 next November, just prior to the crucial climate talks scheduled for Paris in December 2015.

On November 25 the U.S. Supreme Court announced that it had agreed to review the D.C. Circuit’s decision upholding EPA’s regulation of mercury and air toxics (MATS) from power plants as hazardous air pollutants under Section 112 of the Clean Air Act.  The decision was not a surprise because the Court announced on November 17 that it had relisted the petitions for a second conference after considering them at conference on November 14.  I had learned from good authority that the Court has a new, unannounced rule that it ordinarily will not grant cert until it has considered a petition at more than one conference of the Justices.  This rule apparently is a response to the Court discovering in the past that some cases they agreed to review did not actually present the questions the Justices initially thought they did.  Although some observers expressed surprise when the Supreme Court announced that it had relisted the petitions for a second conference, it confirmed for me that the Court was likely to review them.  The Court granted review on a question it framed as: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”  The consolidated cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA and National Mining Association v. EPA.  At the two Supreme Court preview programs ELI President John Cruden and I presented last month, we predicted that these were the environmental cases the Court was most likely to take, though I hoped the Court would deny review.  Some utility executives interviewed by the press indicated that they may suspend their orders for new pollution control equipment pending the Court’s decision in the case.

On November 20 and 21 I visited Macalester College’s Environmental Studies Program along with my former colleague Bruce Rich, former director of international programs for the Environmental Defense Fund.  I introduced Bruce at a campus-wide lecture on November 20 and then attended a program where he spoke at the Institute for Agriculture and Trade Policy.  Both of Bruce’s lectures focused on the environmental consequences of World Bank policy.  On November 21 I participated in a luncheon of Macalester students interested in applying for a summer Global Environmental Justice fellowship.  In the afternoon I gave a lecture on climate change and the new U.S./China agreement to an environmental studies class at Macalester.  I continue to be really impressed with Macalester’s interdisciplinary Environmental Studies Program and the quality of the students who have enrolled in it.

I hope everyone had a happy Thanksgiving.  In a few hours I am leaving for China, my fourth trip of the year to that country.  I will be completing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  On December 3 I am scheduled to give a campus-wide lecture on “Is Divided Government Dysfunctional?” As is usual during my China trips, I do not expect to be able to post blog entries on this website because Blogspot is blocked by China's Great Firewall.  I will be blogging on my parallel blog at: www.globalenvironmentallaw.com.  I will be returning to the U.S. on December 20.