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 12, 2017

VW Guilty Plea, Pruitt on Climate, IBWC Investigating Sewage Spill, Beijing Taxis to Go Electric, Human Rights Lawsuits Against Canadian Mining Companies (by Bob Percival)

I just returned from Guadalajara, Mexico where my son and I attended World Baseball Classic (WBC) games on Friday and Saturday.  The WBC is an international baseball tournament that is held every four years.  We attended games between Puerto Rico and Venezuela and Mexico versus Puerto Rico.  The 16,000-seat Estadio de Baseball de los Charros de Jalisco was filled to capacity and the atmosphere was more like at the World Cup than a regular MLB game.  Puerto Rico won both games and will advance to the next round next weekend in San Diego.  I also checked another item off my bucket list by touring tequila distilleries around the town of Tequila, just north of Guadalajara.

On March 10 Volkswagen AG pled guilty in federal district court in Detroit to criminal charges for intentionally violating the Clean Air Act and obstruction of justice in connection with its cheating on vehicle emissions testing.  As announced earlier when its plea agreement was disclosed, the company will pay a $2.8 billion criminal fine.  It also was disclosed that VW will pay an added $1.5 billion civil penalty.  When the company is formally sentenced on April 21 the court is expected to appoint independent monitor to track its regulatory compliance for the next three years.  Seven VW executives have been indicted for their role in this deliberate fraud.  Only one has been arrested when he was caught trying to leave the U.S.  The others are in Germany and it is unclear whether that country will permit their extradition to the U.S. to face the criminal charges.  If no high-level VW executives go to jail, it will be a severe indictment of the effectiveness of criminal sanctions against corporations for environmental violations.

Last week during an interview on CNBC, EPA Administrator Scott Pruitt stated that he did not believe CO2 was a primary contributor to climate change.  Critics of Pruitt immediately pointed out that this contradicts what EPA's own website says.  Pruitt subsequently stated that he thinks Congress should decide whether EPA has the authority to regulate emissions of greenhouse gases, an issue that already has been resolved by the U.S. Supreme Court a decade ago in Massachusetts v. EPA, a decision the Court has twice reaffirmed.  For someone who claims to want to adhere strictly to the law, Pruitt has some unusual ideas.  In an editorial on March 12, the Houston Chronicle stated that "The Environmental Protection Agency serves a a pollution referee in the competition between industry and nature."  But it said that "everyone should start to worry" because Pruitt was acting as a referee who "runs out on the field, grabs the ball and stiff arms his way into the end zone." Carbon Referee, Houston Chronicle, March 13, 2017 at A29. The editorial noted that at an oil industry conference in Houston last week the Saudi Arabian Energy Minister Khalid Al-Falih emphasized the importance of investments to help shrink the carbon footprint of fossil fuels. "Petroleum is an international business, and whether Pruitt likes it or not, the world is moving ahead on carbon regulations.  The Trump administration cannot keep reality at bay.  The industry is already preparing itself for inevitable global warming rules.  Pruitt's refusal to get on they level has started to hurt long-term plans."

The U.S./Mexico International Boundary and Water Commission (IBWC) announced that it will investigate a massive spill of raw sewage that fouled beaches from Tijuana to San Diego.  The spill which was first spotted in early February, is estimated to have included more than 143 million gallons of raw sewage that spilled into the Tijuana River.  Although it originated in Mexico, the precise source and cause of the spill are unclear.

Municipal authorities in Beijing announced that the city taxi fleet will be replaced with electric vehicles.  Approximately 67,000 existing taxis in the city will be replaced with electric vehicles and all new taxis will be electric.  The move is being undertaken as a response to severe air pollution that has plagued the city this winter.  It also would be nice if the city prosecuted taxi drivers who disable seat belts in their vehicles and require taxi drivers and passengers to use them.

Friday March 3 was the one-month anniversary of the murder of Honduran environmental activist Berta Caceres.  Eight suspects remain in custody, two of whom were arrested in the last two months.  The U.S. Embassy in Honduras released a statement marking the anniversary of the murder stating that the U.S. government “remains committed to helping Hondurans build a future in which the underlying causes of impunity are resolved, and in which the guilty are held to account for their actions.”

In the last several months two Canadian courts have allowed lawsuits to proceed against Canadian mining companies for harmed caused in their operations abroad.  In late January the British Columbia Court of Appeal allowed a human rights lawsuit to proceed against Tahoe Resources Inc.  Plaintiffs in the lawsuit are seven Guatemalan protesters who were shot in April 2013 while protesting the Escobel mine owned by a subsidiary of Tahoe in southeastern Guatemala.  The court unanimously held that a lower court had erred in finding that Guatemala was a better forum for hearing the case. Garcia v. Tahoe Resources, Inc.  In October 2016 the British Columbia Supreme Court allowed a lawsuit alleging human rights violations by a Canadian company at a mine in Eritrea to proceed. Araya v. Nevsun Resources Ltd.

On February 28, 2017 President Donald Trump signed an executive order directing EPA Administrator Scott Pruitt to reconsider EPA’s “waters of the United States” rule.  This rule, which was promulgated in 2015, is a product of EPA’s long-time efforts to clarify the reach of federal jurisdiction under the Clean Water Act.  The rule was necessary because of the U.S. Supreme Court’s bizarre decision in Rapanos v. U.S., where the Court split 4-1-4.  Four Justices, led by Justice Scalia, stated that the Clean Water Act did not apply to wetlands that are adjacent to the non-navigable tributaries of navigable waters. Four Justices stated that the Act did apply.  Justice Kennedy, however, announced his own “significant nexus” test.  Although Kennedy’s test was rejected by all eight other Justices, it became the deciding factor and EPA’s rule was intended to determine when such waters have a significant nexus to navigable waters.  The new executive order directs EPA to consider adopting Justice Scalia’s “continuous surface connection” test that would radically restrict federal jurisdiction.  However, since this test was rejected by a majority of the Court (Kennedy and the four dissenters), EPA would be on shaky legal grounds if it adopts it.

Sunday, February 26, 2017

Chinese NGOs Hit with Fees for Losing Lawsuit, South Africa's First Climate Suit, Northeast Florida Environmental Summit, Golden Tree Awards, Bosnian Mine Waste Spill (by Bob Percival)

A Chinese court has imposed a fee of 1.89 million yuan ($275,000) on two environmental NGOs for an unsuccessful public interest lawsuit.  The Changzhou Intermediate People’s Court in Jiangsu Province imposed the fee on Friends of Nature and the China Biodiversity Conservation & Green Development Foundation.  They sued three chemical companies for polluting land that later was sold in 2011 to build the Changzhou Foreign Language School, which opened in 2015.  The pollution was discovered after hundreds of students at the school became sick.  The court found that soil and groundwater pollution was “now under control” at the site and rejected the plaintiffs claims that the companies should be required to do further remediation.  The fee imposed on the NGOs includes not only legal fees, but a percentage of the amount the groups were seeking be devoted to additional cleanup.  Michael Standaert, Chinese Ruling Threatens Environmental Public Interest Suits, International Environment Reporter, Feb. 24, 2017.  In the U.S. plaintiffs in public interest litigation are not required to pay legal fees unless their lawsuits are found to be frivolous in order to avoid discouraging such litigation.  The NGOs are appealing the court’s decision to the Jiangsu Supreme People’s Court.  A copy of the court’s decision is available in Chinese at: http://news.xinhuanet.com/legal/2017-02/08/c_129470823.htm

On Thursday March 2 the Pretoria High Court will begin to hear South Africa’s first climate change lawsuit.  The Center for Environmental Rights, representing Earthlife Africa Johannesburg in a lawsuit challenging the Ministry of Environmental Affairs’ decision to approve the proposed Thabametsi coal-fired power plant.  The plaintiffs are arguing that the plant should not have been approved without having completed an assessment of its impact on climate change. The defendants argue that there is no specific requirement that climate impacts be assessed in the process of environmental impact assessment.  

On Friday February 24 I delivered the keynote address at the 18th Northeast Florida Environmental Summit.  The summit was held at Florida Coastal School of Law in Jacksonville, Florida.  The theme of the summit was “Protecting Communities from Harm: The Economic and Environmental Implications of Managing Harmful Waste.”  The subject of my keynote was “The Future of Environmental Law in the Trump Administration.”  I noted that newly-confirmed EPA Administrator Scott Pruitt has emphasized two principal themes: keeping EPA from exceeding its legal authority and respecting state prerogatives.  Noting that Pruitt lost most of his lawsuits against EPA when he was the attorney general of Oklahoma, I argued that it would be best for him to let the courts decide what the law is with respect to the Clean Power Plan and the “waters of the U.S.” rule.  If Pruitt seeks to stop California from implementing more stringent environmental controls on greenhouse gas emissions, he would be indicating that he is mor interested in weakening environmental protections than promoting cooperative federalism.

On February 15 the University of Maryland’s Environmental Law Program held its annual Golden Tree award ceremony.  Awards were given to environmental law films made by students in my Environmental Law class last fall.  Based on voting by judges, the two top films were “Glass Half Full: Sustainable Vineyards” and “A World in Retreat.”  The former film examines how wineries are trying to shrink their carbon footprints.  The latter film examines how coastal communities are responding to rising sea levels.   Chris Remavege and Taylor Lilley will be showing these films at NYU Shanghai on March 21.

On February 21, I presented two guest lectures to officials from Anhui Province in China who are in the U.S. to learn about U.S. environmental law deals with soil contamination.  China has a huge problem of soil contaminated by pollutants and it is in the process of developing new laws and policies for responding to it.  The lectures were held at the University of Maryland College Park under the auspices of its Office of China Affairs.

Last week a massive landslide of waste from an open pit coal mine blocked the flow of a river near the town of Kakanj in Bosnia-Herzegovina.  The landslide created a lake that has now flooded a major highway connecting the cities of Sarajevo and Zenica.  Two smaller villages, Ribnica and Mramor have been largely destroyed by the landslide.

Saturday, February 11, 2017

Cambridge Conference, Air Pollution Alerts, Trump Takes Over, Canadian Court Protects Chevron Subsidiary (by Bob Percival)

From January 19-21 I participated in a conference at the University of Cambridge that brought together more than thirty global environmental law scholars who are authoring chapters in the Oxford Handbook of Comparative Environmental Law.  The conference, which included a dinner at King’s College on January 20, was hosted by Cambridge Professors Jorge Vinuales and Emma Lees, the book’s editors.  I am authoring a chapter on “Environmental Transitions: Forces Shaping the Evolution of Global Environmental Law.”  The conference was really terrific and I received some very helpful comments on my chapter. 

I spent two weekends in the heart of London where there were “highest level” air pollution alerts issued due to levels of PM10 being more than twice the legal limit. Paris also has been suffering from high levels of air pollution this winter.  Paris officials made public transportation free during the alerts.  They also assigned labels to each make and model of car based on the amount of pollution it emits, enabling them to ban the most polluting vehicles from the road during bad air days. Residents of Ulaanbaatar, Mongolia also held a large demonstration to protest air pollution with levels of particulates reaching 80 times the limit recommended by the World Health Organization.

On January 30 President Trump issued Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs.  The order mandates that agencies repeal two rules for every new rule they promulgate and it specifies that the repealed rules have to reduce costs to industry by at least as much as the new rule costs.  I have written a blog post critical of the executive order, which was posted on the American College of Environmental Lawyers blog on February 8.  It notes that the order is fundamentally flawed because it focuses solely on regulatory costs without consdiering the benefits of regulation.  Is President Trump Repeating Reagan’s Missteps on Regulatory “Reform?” American College of Environmental Lawyers Blog, Feb. 8, 2017, available online at: http://www.acoel.org/post/2017/02/08/IS-PRESIDENT-TRUMP-REPEATING-REAGAN’S-MISSTEPS-ON-REGULATORY-“REFORM”-.aspx  I also posted a short article in an online journal: “Environmental Law in the Trump Administration,” 4 Emory Corporate Governance and Accountability Review, Presidential Inauguration Issue, January 2017, online at: http://law.emory.edu/ecgar/content/volume-4/issue-special/essays-interviews/environmental-law-trump-administration.html

On January 20 a trial court in Ontario, Canada ruled that plaintiffs seeking to collect on the $9 billion judgment against Chevron for oil pollution in Ecuador cannot recover from the assets of the company’s subsidiary in Canada.

Sunday, January 8, 2017

AALS Conference, China Plans $360 Billion Investment in Renewables, Environmental Crime in China (by Bob Percival)

From January 3-7, I attended the 111th annual meeting of the American Association of Law Schools in San Francisco.  Several panels at the conference focused on how the Trump administration is likely to seek legal and policy changes in various areas, but few speakers could be confident in their predictions.  One of the most interesting panels was a “hot topics” program on the Juliana v. United States litigation in the U.S. District Court for the District of Oregon.  Brought on behalf of 21 youths from across the U.S., the lawsuit argues that the federal government has violated younger generations’ constitutional rights to life, liberty and property and failed to protect essential public trust resources.  Having survived a motion to dismiss, the plaintiff are hoping to go to trial in fall 2017 to litigate whether the federal government has done enough to combat climate change.  Legal documents filed in the litigation are available online at: https://www.ourchildrenstrust.org/lawlibrary/

On Thursday January 5, I joined many professors from the Environmental, Natural Resoures, Energy and Animal Law sections on a field trip to the Greater Farallons National Marine Sanctuary off the coast of San Francisco.  While few whales were sighted during the trip (this is not the time of their migration), it was a beautiful, sunny day for a boat trip.

Last week China’s National Energy Administration announced that the country plans to invest 2.5 trillion yuan ($360 billion) in renewable energy sources between now and 2020.  This investment is expected to reduce emissions of CO2 by 1.4 billion tons, SO2 by 10 million tons, and NOX by 4.3 million tons. By 2020 installed renewable energy capacity is expected to account for 50% of new electricity generation.  While this investment will help reduce coal consumption, coal will still constitute 58% of the nation’s energy mix by 2020. Zheng Xin, Renewables Investments Surge to Help Clear the Air, China Daily, Jan. 6-8, 2016, at 18.

China’s Supreme People’s Court has issued a new interpretation of how criminal prosecutions for environmental violations should be handled.  The interpretation covers how courts should handle falsification of data, illegal dumping of hazardous waste, and how certain environmental crimes are defined. It also provides direction on which crimes deserve severe punishment, such as interfering with investigations related to environmental emergencies, for example, and which would merit lighter punishment, such as if an individual took quick action to remediate or resolve a spill incident.” Michael Standaert, China’s Top Court Cracks Down on Environmental Crime, BNA International Environment Reporter, Jan. 4, 2017.  

Despite increased emphasis on criminal prosecutions for environmental violations, China Youth Daily was critical of the outcome of a prosecution before the Yangzhou Intermediate People’s Court.  Citing the prosecution of Dystar Group for discharging 698 tons of waste acid into a canal without pretreatment, the journal stated: “The damage done by its illegal deeds are beyond measurement, but the punishments for crimes related to environmental pollution are rather light in this country.  The court only fined Dystar 20 million yuan, which is hardly enough to prevent it from committing similar misdeeds again, and certainly far from enough to mend the environmental damage it had already done.” The journal noted that the company had saved substantial amounts of money by failing to treat the waste and that there was no indication that any managers had been held criminally responsible, despite efforts to cover up the violation and destroy evidence.  Quoted in “Heavier Penalties Will remind Firms to Meet Eco-Standards,” China Daily, Jan. 6-8, 2017, at 16.

Last week the Center for Biological Diversity (CBD) filed a notice of intent to sue the U.S. Department of Commerce for failure to take action to require Mexico to protect the totoaba, a small porpoise that is critically endangered. CBD is asking that Mexico be certified as a nation that has diminished the effectiveness of the Convention on International Trade in Endangered Species (CITES) pursuant to the Pelly Amendment to the FIshermen’s Protective Act.

Amazon Watch announced last week that Rosa Moreno, a community nurse in San Carlos, Ecuador who assisted victims of oil pollution, has died of cancer.  In a statement dated January 4, Amazon Watch said: “She loved and served her community as they suffered from the many diseases caused by oil contamination, corporate and government neglect. She fought for justice in the case against Chevron. We vow to continue to seek justice for Rosa and all who have suffered from this abuse.”

Monday, January 2, 2017

Top Ten Global Environmental Law Developments in 2016 (by Bob Percival)

Now that the world has welcomed in 2017 and said good riddance to 2016, it is time for the annual review of the most significant developments in global environmental law during the past year.  Here they are, in no particular order.

1. On November 8, voters in the U.S. elected as president Donald Trump, a candidate who once pledged to abolish the Environmental Protection Agency (EPA) and to “cancel” the Paris climate agreement.  Although his opponent Hilary Clinton received more than 2.8 million more votes than Trump and won the popular vote by a margin of 48% to 46%, Trump carried enough battleground states to win the presidency in the electoral college.  Trump’s nomination of a long-time fierce critic of EPA, Oklahoma attorney general Scott Pruitt, to be EPA Administrator signals that there will be fierce efforts to roll back U.S. environmental regulations.  I have published a piece on the Pruitt nomination in The Conversation, available online at: https://theconversation.com/can-legal-activist-scott-pruitt-undo-clean-air-and-water-protections-as-head-of-epa-70127

2. The Paris Agreement on climate change entered into force on November 4, 2016, 30 days after  it was ratified by at least 55 parties that account for 55% or more of global greenhouse gas emissions.  A total of 120 of the 197 parties to the agreement have now ratified it.  An updated list of the parties and their ratification status is available online at: http://unfccc.int/paris_agreement/items/9444.php  The first Meeting of the Parties to the Paris Convention was held in Marrakech, Morocco in November 2016. 

3.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, agreed to a global phase out of hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances. It is estimated that these measures alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy. The Montreal Protocol already has been responsible for greater reductions in greenhouse gas emissions than even the Kyoto Protocol.  The new measures will help reduce the impact on climate change of the rapid growth of air conditioning use in developing countries.  Global cooperation on climate change also resulted in the 191 countries in the International Civil Aviation Organization adopting a carbon offsetting scheme for international aviation.

4. Despite new measures to upgrade its environmental laws, China continued to suffer horrendous bouts of air pollution that required the issuance of red alerts, shutting down schools and factories.  India also experienced horrendous episodes of air pollution. Epidemiologists calculated that global deaths from exposure to air pollution now total 5.5 million people per year. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  

5. Countries continued to expand the use of specialized environmental courts.  In an update to their 2009 study of environmental courts and tribunals (ECTs), Rock and Kitty Pring found that there are now more than 1,200 green tribunals in 44 countries and 20 additional countries are considering adopting ECTs.  The new study by the Prings for the UN Environment Programme is available online at: http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y. There are now more than 500 environmental judges in China and I had the privilege last June of addressing more than 200 of them during a judicial training program in Beijing.

6. Globalization no longer appeared to be an inexorable force.  The volume of global trade was unchanged in the first quarter of 2016 and then declined by 0.8 in the second quarter as trade liberalization efforts came under fire.  Both U.S. presidential candidates rejected the Trans Pacific Partnership and British voters surprised the world by voting to leave the European Union.  A long-time expert in adjudication of trade disputes expressed the view that the heyday of investor-state dispute resolution provisions may have passed.

7. Global pressure to upgrade environmental standards continued, as illustrated by the U.S. Congress overwhelmingly voting to adopt the Frank Lautenberg Chemical Safety for the 21st Century Act in June 2016.  Signed into law by President Obama, the new legislation is the first comprehensive updating of the Toxic Substances Control Act that was adopted in 1976.  Despite legislative gridlock in the U.S. Congress on most environmental issues, the EU’s REACH program and advances in chemical control legislation in other countries made it abundantly clear that the U.S. law needed to be reformed.  

8. The effects of climate change became more apparent as heat records were broken and sea level rise continued.  Global temperatures in 2015 were the highest on record, but the first eleven months of 2016 were even hotter.  See: https://www.ncdc.noaa.gov/sotc/  Sea level rise exacerbated tidal flooding, leading to the discovery in November of an octopus floating in a parking garage in Miami.  Accelerated melting of the Antarctic and Greenland ice caps increased scientific concern over climate change.

9. Efforts to hold multinational corporations accountable for environmental harm caused in developing countries continued with mixed success.  The never-ending litigation against Chevron for oil pollution in Ecuador continued.  Chevron won a big victory when the U.S. Court of Appeals for the Second Circuit upheld a RICO judgment against Ecuadoran plaintiffs and their lawyers, but Canadian courts allowed the plaintiffs to continue efforts to collect against Chevron subsidiaries in that country.  Litigation against Royal Dutch Shell for oil pollution in Nigeria continued in British and Dutch courts.  Efforts to hold multinational corporations accountable for harm caused in developed countries were more successful as Volkswagen reached multi-billion dollar settlements and faced criminal charges for its extensive use of emissions testing defeat devices.

10.  Efforts to improve the capacity of courts to hear environmental cases increased.  A new Global Judicial Institute for the Environment was launched in April at the first World Congress on Environmental Law in Rio, spearheaded by Brazilian Supreme Court Justice Antonio Benjamin, chair of the World Commission on Environmental Law.  The U.S. Supreme Court became more politicized as it intervened in unprecedented fashion to stay EPA’s Clean Power Plan by a 5-4 vote on February 9, four days before anti-environmental Justice Antonin Scalia died suddenly.  In another uprecedented move, the U.S. Senate, controlled by President Obama’s opponents, refused even to consider his nomination of moderate Merrick Garland, chief judge of the D.C. Circuit, to replace Scalia.  As a result, incoming President Donald Trump will nominate a new successor to Scalia and a huge confirmation battle is likely.  New legal theories seeking judicial intervention to combat climate change were tested in court. In November a federal judge in Oregon refused to dismiss a suit claiming that government failure to combat climate change has “so profoundly damaged our home planet” that it threatens “fundamental constitutional rights to life and liberty.” See Juliana v. U.S., online at: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf 


Sunday, December 18, 2016

Air Pollution Red Alerts in China, Gates Launches $1 Billion Clean Energy Fund, EPA Fracking Study, First U.S. Offshore Wind (by Bob Percival)

China’s Ministry of Environmental Protection reported that 22 Chinese cities, including Beijing, had declared a “red alert” because of horrendous air pollution on Friday Dec. 16. Nurseries and primary schools were closed, road work was suspended, high-emission vehicles were banned from the roads, and some factories were required to slow or shut down production.  This was the first red alert for Beijing since December 2015.  Several days before, citizens protesting air pollution had been arrested in Chengdu after placing masks over statues.

Billionaire Microsoft founder Bill Gates announced the launch of a $1 billion private fund to invest in new clean energy projects.  Called Breakthrough Energy Ventures, the fund will invest in “scientific breakthroughs that have the potential to deliver cheap and reliable clean energy to the world.”  Other investors in the fund include former New York City mayor Michael Bloomberg, Alibaba founder Jack Ma, and Amazon CEO Jeff Bezos.  A year ago Gates put together the Breakthrough Energy Coalition of 20 billionaires who committed to investing in new forms of energy.

Last week EPA issued the final version of its five-year study of the impact of hydraulic fracturing on groundwater.   The draft report EPA had issued for public comment a year ago stated that fracking has not “led to widespread, systemic impact on drinking water resources in the United States.”  The new final report deletes this conclusion and states that fracking “can impact drinking water resources under some circumstances” with effects that “can range in frequency and severity” depending on the circumstances.  EPA finds that “significant data gaps and uncertainties” preclude it from “calculating or estimating the national frequency of impacts.”  The report is being viewed by many observers as supporting better regulation of fracking, rather than an outright ban.

After four months of testing, the first offshore wind project in the U.S. became operational on December 12.  The Block Island Wind Farm off the coast of Rhode Island consists of five turbines that generate 30MW of electricity.  The project, which took two years to complete, was completed on-time and on-budget.  It is the first offshore wind farm outside of Europe to become operational.

Last week I reported that president-elect Donald Trump had selected Cathy McMorris Rodgers to be his Secretary of Interior.  That report proved to be premature.  Reportedly, Trump’s sons Donald Jr. and Eric helped convince him instead to select Montana congressman Ryan Zinke.  Zinke, who is a former Navy Seal, is serving his first term in Congress. While Rodgers had a 5% voting rating from the League of Conservation Voters, Zinke’s rating from the group is 3%.  However, Zinke reportedly is not in favor of widespread transfers of federal land to states or private interests.

Sunday, December 11, 2016

World Bank Conference, Trump Picks Pruitt for EPA, HFC Phaseout, ICAO Airline Emissions Agreement (by Bob Percival)

On Monday I spoke on the opening day of the World Bank’s week-long conference on Law, Climate Change and Development.  The conference was part of the bank’s Law, Justice and Development Week.  It was held at the bank’s headquarters in Washington, D.C.  The conference opened with a keynote address by Achim Steiner, former head of the United Nations Environment Programme.  Both Steiner and bank president Jim Yong Kim expressed hope that global momentum to address climate change will not be derailed by political developments.  While they did not specifically mention the U.S. or the election of Donald Trump, it was clear that this was on the minds not only of the speakers but of most of the members of the audience.

I was on a panel on “Which Climate Change Regime Are You?”  Amir Sokolowksi from Legal Atlas presented his fascinating work comparing the framework laws that different countries are adopting to respond to climate change.  He examined the laws adopted by Sri Lanka, Kenya, and Guatemala.  I responded to his paper by explaining why the U.S. tried, but was unable, to adopt a framework law on climate change.  Searching the database I have compiled of the text of the major federal environmental statutes for my annual Statutory & Case Supplement, I found only one reference to “climate change” in the text of existing U.S. laws.  Yet the U.S. has managed to put together a robust program to control emissions of greenhouse gases.

It has been months since my last blog entry and the political earthquake that was the U.S. presidential election occurred during this period.  This week president-elect Donald Trump announced that he had selected Oklahoma Attorney General Scott Pruitt to be EPA Administrator and Washington Congresswoman Cathy McMorris Rodgers to lead the U.S. Department of Interior.  Pruitt is a climate change denier and he has been one of the harshest critics of EPA. Rodgers has a 5% rating from the League of Conservation Voters.  Both nominations, which must be confirmed by the Senate, indicate that Trump is planning aggressive attempts to roll back environmental protections.  

Much has happened in the last four months since my last blog entry.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, adopted far-reaching measures to phase out hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances, on a global basis. It is estimated that this measure alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy.

At the beginning of October the International Civil Aviation Organization (ICAO), meeting in Montreal, adopted a plan to require airlines to offset the greenhouse gas emissions from their international flights beginning in 2020.  This also is a remarkable achievement for global environmental law.  It was spawned in large part by the EU’s efforts to require airlines flying to and from Europe to pay emissions charges.  Although Russia, India, China and the U.S. fiercely resisted the EU’s efforts, they were upheld by the European Court of Justice and suspended only after the ICAO agreed to convene negotiations for a global agreement.