Ma Jun Receives Prince Claus Award

Ma Jun Receives Prince Claus Award
Chinese environmentalist Ma Jun receives the Prince Claus Award at the Dutch Royal Palace in Amsterdam on Dec. 6, 2017

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, September 9, 2018

Court Upholds Revocation of Ecuador Mining Permit, New PM in Australia, Kavanaugh Confirmation Hearings, New China Soil Protection Law (by Bob Percival)

As discussed in the July 31 blog entry, Zhang Jingjing, a lawyer once called “the Erin Brockovich of China,” has joined the Maryland environmental faculty as a lecturer in law to direct the Environmental Law Program’s Transnational Environmental Accountability (TEA) Project.  The TEA Project seeks to hold multinational companies accountable for the environmental impact of their activities in developing countries.  Professor Zhang appeared in court in Cuenca, Ecuador in July to support Kañari-Kichwa indigenous communities seeking to stop a Chinese company from mining in the Cajas Nature Reserve.  In a historic decision a judge had ordered the company to halt all mining activities because it failed to consult with indigenous communities and obtain their consent for the mining.  Appearing before a court reviewing the decision, Professor Zhang argued that Chinese law requires companies to abide by both international treaties signed by China and domestic law in the countries in which they operate. In August the court accepted Professor Zhang’s argument and upheld revocation of the mining permit.

Australian Prime Minister Malcolm Turnball was replaced by Scott Turnbull in late August after Turnbull failed to survive a leadership challenge from within his own party.  What precipitation the challenge apparently was Turnbull’s relatively modest proposal to enact measures to help Australia meet its contribution to the Paris climate agreement.  A previous government from the opposition Labor party was brought down in part over discontent with a carbon tax.  The question whether democracies are as capable at addressing long-term environmental problems like climate change as authoritarian governments are is addressed in a chapter (“The Climate Crisis and Constitutional Democracies”) I authored for a new book, Constitutional Democracy in Crisis? The book, which was edited by constitutional law scholars Marc Graber, Sanford Levinson & Mark Tushnet, has just been published by Oxford University Press, https://global.oup.com/academic/product/constitutional-democracy-in-crisis-9780190888985?cc=us&lang=en&

The Senate Judiciary Committee held hearings last week on the nomination of Judge Brett Kavanaugh to become an Associate Justice of the U.S. Supreme Court.  Because Kavanaugh will be replacing Justice Anthony Kennedy, a key swing vote in some environmental cases including Massachusetts v. EPA (upholding EPA’s ability to use the Clean Air Act to address climate change), Kvanaugh’s confirmation could have profound implications for environmental law.  This week the University of Pennsylvania Law School’s Regulatory Review published a short essay I wrote on “Judge Kavanaugh’s Activist Vision of Administrative Law,” https://www.theregreview.org/2018/09/04/percival-judge-kavanaugh-activist-vision-administrative-law/  I highly recommend reading the testimony Professor Lisa Heinzerling of Georgetown presented to the committee, which is available online at https://www.judiciary.senate.gov/imo/media/doc/Heinzerling%20Testimony.pdf

I note in my essay that one of Judge Kavanaugh’s worst decisions is his August 2017 Mexichem Fluor decision invalidating EPA’s regulations phasing out HFCs, which are powerful greenhouse gases.  This decision has outraged not just environmental groups, but also most U.S. companies that manufacture refrigeration and air conditioning equipment.  Yet on August 27, 2018 the U.S. Solicitor General opposed Supreme Court review of the decision on the ground that EPA has now reversed its interpretation of the Clean Air Act and agrees with Kavanaugh’s decision.  This could represent a severe threat to U.S. ability to implement the Kigali Agreement.


On August 31, after long years of debate, the Standing Committee of China’s National People’s Congress adopted a Soil Pollution Prevention and Control Law.  Despite reports last year that the law would be quite stringent and be similar to the U.S. Superfund legislation (Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)), the law is not nearly so strict.  It reportedly places more emphasis on plans, general surveys, and monitoring of soil than on imposing liability for remediation.  The law will take effect on January 1, 2019.

Monday, August 6, 2018

Rollback Proposed for U.S. Fuel Economy Standards, Industrial Hog Farm Nuisance in N.C., Hoover Dam Pumped Storage Proposal, NY Times Magazine on "Losing Earth" (by Bob Percival)

On August 2 the Trump administration proposed to roll back fuel economy standards that had been a centerpiece of the Obama administration plan to control greenhouse gas (GHG) emissions.  The joint EPA/NHTSA proposal would freeze the standards at 2020 levels for six years rather than substantially increasing them as required under existing regulations.  The unusual rationale offered by EPA and NHTSA is that because more fuel efficient cars cost more, fewer people will buy them, causing more deaths in auto accidents as older cars with fewer safety features are driven longer.  This rationale has been rejected by many experts who maintain that the administration manipulated the cost-benefit analysis used to support its proposal.

The EPA/NHTSA proposal also would bar California from adopting more stringent auto emission controls than other states, a move that gives lie to the administration’s claim that it wants to give states more authority over environmental policy.  The 1970 Clean Air Act expressly authorizes California to apply stricter standards and it did so for decades until 2009 when the Obama administration essentially brought the national standards up to the level sought by California. California and other states that have adopted the California standards are challenging the legality of EPA preemption and they appear to have a very strong legal case.  Acting EPA Administrator Andrew Wheeler reportedly was skeptical about the agency preempting California regulations, but Trump DOT officials prevailed by arguing that if Brett Kavanaugh is confirmed the Supreme Court likely will rule for the administration, a further sign of the politicization of the Court.

Last week a federal jury in North Carolina awarded neighbors of an industrial hog farm $25 million in compensatory damages because of the nuisance created by the giant anerobic ponds that store hog waste.  Rather than suing the farmers raising the hogs, the plaintiffs sued Smithfield Foods, the corporation that controls the operation.  This is the second multi-million dollar verdict against the company in nuisance litigation brought by hundreds of North Carolina residents.  Last week the North Carolina General Assembly adopted the North Carolin Farm Act, new legislation that will foreclose such nuisance lawsuits in the future. The legislation was adopted over the veto of Governor Roy Cooper.

The Los Angeles Department of Power and Water is considering a proposal to invest $3 billion in a pumped storage project for Hoover Dam, which is owned by the U.S. Bureau of Reclamation. The plan would use some of the huge amount of solar and wind power generated during the day on the California electric grid to pump water back above the dam into Lake Mead where it could be used to generate additional hydro power when it is most needed.  Right now the Hoover Dam only operates at about 20 percent of capacity due to drought conditions.


On August 5 the New York Times devoted its entire Sunday magazine to an article “Losing Earth: The decade we almost stopped climate change.”  The 66-page article by Nathaniel Rich is well worth reading for its detailed review of efforts during the 1980s to develop an international consensus that GHG emissions should be frozen and then reduced.  It maintains that even oil companies and President George H.W. Bush could have supported such a proposal, though it singles out John Sununu, Bush’s White House Chief of Staff, for blocking EPA Administrator William Reilly’s efforts to support such measures. The article includes terrific photos illustrating the present consequences of climate change throughout the world.

Tuesday, July 31, 2018

Supreme Court Refuses to Halt Juliana Trial, NY City Climate Suit Dismissed, Zhang Jingjing in Court in Ecuador, IUCN Colloquium (by Bob Percival)

Yesterday, in what likely was his last act as a Justice of the Supreme Court, Anthony Kennedy joined his colleagues in refusing the Solicitor General’s request to stay discovery and the upcoming trial in the Juliana v. U.S. lawsuit by young people seeking to hold the federal government liable for failing to protect them against climate change.  In an unsigned order the Court called the government’s request for relief “premature.” However, like the 9th Circuit noted when it denied a similar motion, the Supreme Court cautioned that the “breadth of respondents’ claims is striking,”and it opined that “the justiciability of those claims presents substantial grounds for difference of opinion.” The Court’s order cautioned the federal district court hearing the case in Portland, Oregon to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.”  Justice Kennedy’s resignation becomes effective today, leaving the Court with eight members until the Senate confirms a new Justice. 
On July 19 federal district judge John F. Keenan dismissed the city of New York’s common law nuisance suit against Chevron, Conoco Phillips, ExxonMobil and Royal Dutch Shell for fossil fuel production that contributes to climate change.  Citing the Supreme Court’s 2011 decision in American Electric Power v. Connecticut (AEP), the judge held that the Clean Air Act displaces the federal common law of nuisance because it gives EPA responsibility to regulate emissions of greenhouse gases.  Responding to the city’s state law nuisance claim, Judge Keenan distinguished the case from AEP, which refused to decided whether the Clean Air Act displaces state law nuisance claims.  Because New York City’s case involved the use of fossil fuels sold worldwide, rather than emissions from specific power plants as in AEP, the judge held that state nuisance law could not be used because a single federal standard should apply.  Several other cities and states have brought climate suits against oil companies with mixed results.

On July 23 Zhang Jingjing, who this week is joining Maryland Law’s Transnational Environmental Accountability (TEA) Project, appeared in court in Cuenca, Ecuador to support indigenous tribes seeking to have an appellate court uphold a lower court’s revocation of a mining permit awarded to a Chinese company. Jingjing’s amicus brieft was written in three languages - Chinese, English and Spanish.  She argued that issuance of the permit without any notice or consultation with affected indigenous populations violated norms under both Chinese law and international law.  The court will issue its decision shortly.  More details on this case are available at: https://intercontinentalcry.org/can-the-law-prevail-over-chinese-investments-in-ecuador/ The TEA Project is focusing on holding multinational companies accountable for environmental harm they cause in developing countries.

Earlier this month two of my colleagues and I, joined by three Maryland students and recent graduates, made presentations at the 16th Annual Colloquium of the IUCN Academy of Environmental Law in Glasgow, Scotland. This year 400 participants from nearly 40 countries attended the Colloquium, a new record for the Academy. The theme of the colloquium, which was held at the University of Strathclyde from July 3-6, was “The Transformation of Environmental Law and Governance: Innovation, Risk and Resilience.”

Joined by rising 3L Alex Belman, I presented a history of innovation in environmental law and policy on July 5. The presentation traced the evolution of innovations such as protected areas, freedom of information, environmental impact assessment, emissions trading, and pollution disclosure requirements. I also gave a presentation on the challenges of teaching environmental law at a special pre-colloquium Teaching and Capacity-Building Workshop on July 3.

Maryland’s environmental law partnership with Pace University currently serves as the secretariat for the IUCN Academy,which was founded in 2003. Pace hosted the Academy’s fourth colloquium in 2006 and Maryland hosted the tenth colloquium in 2012. Next year’s colloquium will be held in Malaysia in early August 2019.


On Monday I made a presentation on the state of water law at the annual meeting of the Center of Excellence at the Nexus of Sustainable Water Reuse, Food and Health (CONSERVE) in College Park.  CONSERVE is the multi-disciplinary project funded by the US Department of Agriculture to explore new technologies for using nontraditional water sources for irrigation.  The project involves physical and social scientists from Maryland, Delaware, Arizona and New Mexico and it is assembling one of the world’s largest data bases on factors that affect the quality of water used in agriculture.

Thursday, June 28, 2018

Justice Kennedy's Retirement, Colombian Supreme Court Decision, Transnational Accountability Project, New Publications (by Bob Percival)

On June 27, 2018, Justice Anthony Kennedy announced that he would retire from the U.S. Supreme Court effective on July 31.  This is likely to have a profound effect on the future treatment of environmental law in the U.S. Supreme Court.  Kennedy provided the decisive fifth vote in Massachusetts v. EPA in 2007, which held that EPA has the authority to regulate greenhouse gases under the Clean Air Act.  In subsequent cases, both Justices Thomas and Alito have indicated that they would like to overrule Massachusetts v. EPA.  Chief Justice Roberts has accepted the holding, but in Massachusetts v. EPA he dissented on the grounds that climate change litigants should not have standing to sue even if they are states.  While Justice Gorsuch as a circuit judge did not embrace Justice Scalia’s campaign to manipulate standing doctrine to keep environmentalists out of court, this could be a problem area in the future. Justice Kennedy also was a decisive vote in many regulatory takings cases, voting with the majority in all ten such cases heard while he was on the Court.  See the paper I wrote on this for an ABA conference last year at: https://www.americanbar.org/content/dam/aba/events/environment_energy_resources/2017/fall/conference_materials/3_percival.authcheckdam.pdf

President Trump stated that he would choose Justice Kennedy’s replacement from a list of 25 people - twenty who previously were on his list and five others added in November in an announcement coinciding with the Federalist Society National Convention.  Here are four of the people on the list: 

Brett Kavanaugh, judge on D.C. Circuit U.S. Court of Appeals – tried to gut the Clean Air Act’s interstate air pollution provisions in a decision overturned by the Supreme Court with both Chief Justice Roberts and Justice Kennedy voting to reverse him (EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584 (2014))

Mike Lee, U.S. senator from Utah – 0% score from League of Conservation Voters, who co-authored an oped asking the Supreme Court to declare that the Endangered Species Act is unconstitutional as applied to the endangered Utah prairie dog.

Patrick Wyrick, justice on Supreme Court of Oklahoma – protégé of Scott Pruitt who facilitated Pruitt’s cozy relationship with oil and gas interests when he served as solicitor general of Oklahoma and Pruitt was the state attorney general.

Amul Thapar, judge on 6th Circuit U.S. Court of Appeals –  at the last National Federalist Society Convention criticized the administrative state as the elitist brainchild of Woodrow Wilson and railed against EPA's regulations to control mercury emissions while ignoring their immense co-benefits, see video at https://fedsoc.org/events/environmental-law-without-congress-are-alternatives-to-legislation-eclipsing-the-congressional-role



Much has happened in the months since I last posted on this blog.  Shortly after my last blog post, the Supreme Court of Colombia issued an historic ruling that the Colombian government must do more to protect the Amazon from deforestation in order to vindicate the rights of future generations to a healthy environment.  The ruling came in response to a lawsuit filed in January by 25 youths (wouldn’t it be great if our courts acted so quickly?). I visited Bogota for the first time at the end of April where I met up with my son who had been traveling through Central and South America for three and a half months.

On May 18th Maryland Carey Law hosted commencement ceremonies for members of the Class of 2018.  A pre-graduation award ceremony honored students who qualified for the certificate of concentration in environmental law.  Receiving the certificate were: Hannah Catt, Sarah DiBernardo, Devon Harman, Shannon Himes, Taylor Lilley, Catherine McGrath, David Morgan, Megan Todd, Kerri Webb, and Zack Wilkins. 

A major problem in global environmental law has been the impact of foreign companies, particularly in the extractive industries, on the environment of developing countries.  I have been working with Professor Seema Kakade, director of Maryland’s Environmental Law Clinic, on a new project we are going to call the Transnational Environmental Accountability (TEA) Project. This project is the logical next step in our efforts to enable students to work on issues of global environmental law, as two Maryland students are doing this summer working in Malawi with the University of Malawi Chancellor College’s Environmental Justice and Sustainability Clinic. The law school has hired Zhang Jingjing, a former top public interest environmental litigator in China, as a Lecturer in Law to supervise this project.  More details are available at: https://www.law.umaryland.edu/about/news_details.html?news=2485.  I and my students are super excited about the TEA Project.

Despite shocking ethical lapses, Scott Pruitt continues as EPA administrator.  I recently authored a piece in The Conversation piece on how Pruitt is trying to relax the nation’s most fundamental protection against air pollution by changing the process used to set national ambient air quality standards (NAAQSs).  See: Scott Pruitt’s approach to pollution control will make the air dirtier and Americans less healthy, https://theconversation.com/scott-pruitts-approach-to-pollution-control-will-make-the-air-dirtier-and-americans-less-healthy-96501

The article I co-authored with former Naval commander Mark Nevitt that compares environmental law in the world’s two polar areas has now been published by the Boston College Law Review.  Entitled “Polar Opposites: Assessing the State of Environmental Law in the World’s Polar Regions,” is now available online at: https://www.bc.edu/bc-web/schools/law/academics-faculty/law-reviews/bclr.html#item/3685.  The citation is: 59 B.C. L. Rev. 1655 (2018).

I have completed a Transition Guide describing all the significant changes in the new 8th edition of my casebook, Environmental Regulation: Law, Science & Policy, which was published by Wolters Kluwer at the beginning of February.  I am currently finishing a new Teacher’s Manual for the new edition, which will be available in time for professors using the new edition in their fall semester classes. 


Tomorrow I fly to the UK for the annual Colloquium of the IUCN Academy of Environmental Law, which is being held at Strathclyde University in Glasgow, Scotland.  One of the Academy’s most successful projects has been its “Training the Trainers” program in Asia.  I am featured in a new film produced by the Office of General Counsel of the Asian Development Bank's Law and Policy Reform Program that describes this program. The film is called "Developing Environmental Law Champions: Training-the-Trainers Program". It can be viewed by going to the ADB’s website at: https://www.teachenvirolaw.asia.

Sunday, April 8, 2018

Casebook 8th Edition, China Trip, IACHR, Juliana Case, German Cities Can Ban Diesel, U.S. Fuel Economy Rollback (by Bob Percival)

A lot has happened since my last blog post 11 weeks ago. I am delighted to report that the 8th edition of my environmental law casebook (Environmental Regulation: Law, Science & Policy) was published by Wolters Kluwer in early February.  The book is now available in bookstores and can be ordered online. I am finishing a new Teacher’s Manual for it that will be published shortly.

I spent spring break in China where I gave a lecture at Shanghai Jiaotong University.  Despite noting in my last blog post that air quality in Chine reportedly had improved, it was not at healthy levels during the week I was in Shanghai.  The mood among academia in China seems to have soured as the Communist Party expands its control over the academy, economy, and government with Xi Jingping now authorized to rule for life.  Although I am no fan of President Trump or tariffs, I agree with the conclusion that the U.S. needs to take a stronger stand against Chinese government restrictions on foreign investment, internet access and trade.

On March 29 I spoke at a conference at Emory University Law School sponsored by the Emory Corporate Governance and Accountability Review.  I spoke on “The Corporation and the Consumer: Responsible and Irresponsible Corporate Behavior.” As examples of irresponsible behavior I discussed the history of the lead industry, the asbestos industry, the tobacco industry, and the Volkswagen auto emissions scandal.  As examples of responsible corporate behavior I noted the increasing number of companies using independent auditors to ensure compliance with environmental and labor laws by their supply chains.  I also spoke to students in Emory’s masters program for Chinese lawyers about the state of environmental law in China.

In February 2018 the Inter-American Court of Human Rights released an advisory opinion first written in November declaring that the right to a healthy environment is fundamental to human existence.  The court’s opinion was issued in response to a request from Colombia.  The opinion declared that the right to a healthy environment is both an individual and collective right protecting both current and future generations.  The court declared that “[s]tates are obligated to prevent significant environmental damage[] within and outside their territory.” 

In the Juliana future generations climate litigation, which is before a federal district court in Oregon, on March 7, 2018, a panel of Ninth Circuit judges denied without prejudice the federal government’s motion for a writ of mandamus to stop discovery and a future trial. In re United States, 2018 WL 1178073 (2018). The court held that the federal government had not met the “high bar for mandamus relief” at this stage of the litigation.  It observed that it was “mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies plaintiffs seek may not be available as redress.” But the court left it for the district court to develop the record and to consider the claims raised by the plaintiffs. Plaintiffs are hoping for a trial to commence before the end of 2018.

On February 27 Germany’s Federal Administrative Court in Leipzig ruled that German cities have the legal authority to ban cars using diesel fuel in order to reduce air pollution in urban areas.  Automakers had argued that cities needed federal legislation expressly authorizing such bans, but the court disagreed.  Environmentalists hailed the ruling as providing an important tool to cities who are having a hard time complying with air pollution standards.  An excellent summary of the VW diesel defeat device scandal in the U.S. is provided in episode one of a new Netflix series called “Dirty Money.”

On April 2 EPA Administrator Scott Pruitt released a proposal to roll back U.S. fuel economy standards that require vehicles to average 38.3 miles per gallon in the 2018 model year, rising to 54.5 mpg by 2025. The standards, which are set jointly by EPA and the National Highway Transportation Safety Administration, were established in 2012 and reaffirmed just before the Obama administration left office in January 2017.  When the decision is finalized, it will trigger a massive legal battle with the state of California, which since 1970 has been authorized to adopt stricter motor vehicle emissions standards than the federal government.  Despite his rhetoric about giving states greater freedom, Pruitt is not inclined to do so for California.  He claims that California “should not be allowed to dictate” the nation’s standards, but it would not be doing so if it were allowed to retain a higher fuel economy standard.  Surprisingly, the document EPA released proposing this landmark change was devoid of analytical content and only 38 pages long, most of it cribbed from comments by automakers.  A legal battle is looming and EPA is not exactly arming itself well.


The Major League Baseball season has opened in the United States.  In South Korea air pollution forced the Korea Baseball Association to postpone three games.  The games had been scheduled to be held on April 6 in Seoul, Incheon, and Suwon. They were postponed because of high levels of fine dust in the air. “South Korean baseball league postpones games over smog,” Washington Post, April 7, 2018, at A7.

Sunday, January 21, 2018

2017 SECOND HOTTEST YEAR ON RECORD, TALKS OVER ETHIOPIAN DAM, CHERNOBYL SOLAR FARM, WILDLIFE TRAFFICKING KINGPIN ARRESTED (By Bob Percival)

NASA reported last week that the year 2017 was the second hottest year on record, bested only by 2016 when El Niño temporarily helped boost temperatures slightly.  Global average temperatures were 1.62 degrees Fahrenheit above the 1951-1980 average. The five hottest years on record have all occurred since 2010. Seventeen of the 18 hottest years have occurred since the year 2000.

Last month the World Bank announced that it no longer would provide funding for fossil fuel projects. This week the Conversation published an article by Professor Jason Kirk of Elon University noting that this decision represents the Bank showing a new found sense of independence from the United States, its largest funder, at a time when the Trump administration is promoting greater use of oil and gas. https://theconversation.com/signaling-more-independence-from-the-us-the-world-bank-phases-out-its-support-for-fossil-fuels-89497

Several sources report that there has been a noticeable improvement in air quality this winter in Beijing. The improvement in levels of fine particulates (PM2.5) is confirmed by data from the U.S. Embassy in Beijing.  Te-Ping Chen, Air Quality Improves in Beijing, Wall St. Journal, Jan. 18, 2018, at A6. PM2.5 levels in Beijing during the last quarter of 2017 dropped to 58 micrograms per cubic meter of air, a substantial drop from the year before, but still several times above the level the World Health Organization deems to be safe.  The improvement is attributed to stepped up inspections and fines against polluting factories in the provinces near Beijing, and cutbacks in coal use and steel production designed to meet environmental goals in the 5-year plan that expired at the end of 2017.

Egypt is protesting Ethiopia’s plans to fill the reservoir behind the Grand Ethiopian Renaissance Dam on the Nile River within three years of the project’s completion in 2019.  Egypt maintains that this will reduce the flow of the river to Egypt to levels that will cause it harm.  Ethiopian Prime Minister Hailemariam Desalegn held meetings with Egyptian officials in Cairo last week to discuss the conflict.  When completed, the da will be the largest in Africa.  Matina Stevis-Gridneff & Dahlia Kholaif, Egypt, Ethiopia Wrangle Over Nile Dam, Wall St. Journal, Jan. 18, 2018, at A9.

A Ukrainian firm, Rodina Energy Group, and a German company, Enerparc Ag, are building a solar energy farm in the exclusion zone around the damaged Chernobyl nuclear reactor.  They are expected to install 100 MW of solar generating capacity.  The site is seemingly ideal because it has easy access to the transmission lines that formerly carried power from the nuclear power plant that was irrevocably damaged in the 1986 accident.

Last week Coca Cola launched a “World Without Waste” campaign.  The company pledged that it will recycle all of its packaging by the year 2030. Chief executive James Quincey stated that “the world has a packaging problem - and, like all companies, we have a responsibility to help solve it.” Greenpeace was not impressed, http://www.bbc.com/news/business-42746911


Authorities in Bangkok arrested Boonchai Bach, who they allege is the mastermind of an international ring that smuggles endangered wildlife, including rhino horns.  The authorities allege than Bach operated the ring for more than a decades, reaping millions of dollars in revenue. Bach is alleged to have ties to Vixay Keosavang of Laos, who has been described as “the Pablo Escobar of wildlife trafficking.” Keosavang is still at large with a $1 million reward being offered by U.S. authorities for his capture.

Monday, January 8, 2018

Top Developments in 2017, Tax Cut Opens ANWR to Drilling, Prince Claus Awards (by Bob Percival)

Happy 2018.  I rang in the New Year while traveling on a plane to Israel.  On January 2 & 3 I participated in a Forum on Water Reuse, Food and Health at the Hotel Tzuba outside of Jerusalem.  The forum was part of the runup to the launching of a new joint Center on Water Reuse, Food & Health between the Hebrew University of Jerusalem and the University of Maryland.  The other U.S. participants included faculty from the School of Public Health, College of Agriculture & Natural Resources, and the College of Computer, Mathematical & Natural Resources. The participants from Hebrew University included faculty from the School of Agriculture, Food & Environment, the School of Public Health and the Department of Geography.  The Center will help coordinate multidisciplinary research on how to use water more efficiently in a similar fashion to the multidisciplinary

For the last several years I have sought to highlight in my first post of the year some of the top developments in Global Environmental Law during the previous year.  This year they include the following.  On June 1 Donald Trump announced that he intends to pull the U.S. out of the Paris climate Agreement.  With both Nicaragua and Syria deciding to join the agreement, the U.S. will become the only country in the world not participating in it.  Under the terms of the Paris Agreement the U.S. withdrawal cannot officially become effective until November 4, 2020, the day after the next U.S. presidential election.   Several states, cities, universities and companies responded by announcing that they were redoubling efforts to reduce their GHG emissions to signal the world that the U.S. could meet its initial Paris pledge even without the Trump administration.

The Trump administration also moved to shrink the size of national monuments, repeal the “waters of the U.S.” rule and EPA’s Clean Power Plan.  However, because it did not move to reverse EPA’s finding that GHG emissions endanger public health and welfare, EPA will remain under a legal obligation to control them. Overall the U.S. federal  government is moving sharply backwards on environmental protection, while the rest of the world continues to move forward.

Volkswagen pled guilty to criminal charges in the U.S. for its emissions testing scandal.  One VW executive was sent to jail, while several others are under indictment but unlikely to be extradited by Germany.   Sea Shepherd abandoned its annual efforts to harass the Japanese whaling fleet in Antarctica.  The Minimata Mercury Convention entered into force on August 16, 2017.  Both New Zealand and India granted legal personality to rivers. Climate litigation increased around the world, including lawsuits by Greenpeace against Statoil in Norway, the Juliana case in Oregon, a suit challenging construction of a coal-fired power plant in South Africa, and lawsuits in India, Australia, Colombia and Germany.  The Philippine Commission on Human Rights also launched a climate investigation. 

Decades of efforts by environmentalists to keep the Alaska National Wildlife Refuge ANWR closed to oil drilling were dealt a blow by tax cut legislation. On December 22, 2017, President Trump signed into law the Tax Cut and Jobs Act of 2017, which contains a provision opening ANWR to oil drilling.  The provision was added at the behest of Republican Senator Lisa Murkowski of Alaska, a long-time supporter of drilling ANWR in order to increase royalties to be received by the state of Alaska.  The bill passed the Senate by a vote of 51-48 under a “reconciliation” procedure that avoided the need to obtain 60 votes to overcome a filibuster.  It was argued that because the measure would raise revenue from oil royalties it was germane to the tax bill.  At a White House celebration following passage of the tax cut legislation, President Trump boasted that he had been able to overcome more than 40 years of opposition to opening ANWR and he congratulated Alaska’s long-time Congressman Donald Young, though calling him “Dan” by mistake. It will take considerable time before any drilling is done in ANWR and with oil prices much lower than in decades past, it is unclear how keen oil companies will be to drill there.

On December 6 I visited the Dutch Royal Palace in Amsterdam for the annual Prince Claus Awards.  The Prince Claus Fund gave its highest award to Chinese environmentalist Ma Jun and they asked me to write a tribute to him, which was published in the annual awards book.  More information about this event is provided in a blog post I have done for the blog of the American College of Environmental Lawyers (www.acoel.org) that will appear this week. 


On January 8 the U.S. Federal Energy Regulatory Commission (FERC) rejected efforts by Energy Secretary Rick Perry to require the provision of subsidies to coal-fired and nuclear power plants in the name of increasing the reliability of the electricity grid.