On Friday October 24 I spoke at a conference at Duke Law School on “The Future Environmental Agenda: Environmental Law and Policy Challenges Facing the Next President.” The conference was the 2008 Symposium of Duke’s Environmental Law & Policy Forum. It featured a terrific collection of speakers who addressed the environmental agenda at the international level and with respect to natural resources law and pollution control. I was on the pollution control panel along with former EPA general counsel Don Elliott, Environmental Defense Fund assistant general counsel Vickie Patton and Professor Noah Sachs from the University of Richmond. There was a lively debate over whether cap and trade or carbon tax approaches were the best policy for responding to global warming and climate change.
I made a presentation on “Presidential Transitions and the Environment.” Reviewing transitions the Carter administration to the present, I noted that while it once was considered presumptious for a presidential candidate to start transition planning prior to the election, it now has become essential to do so. I argued that the notion of a “honeymoon” for a new administration was largely a myth since there have been so many instances where opponents try to test a new administration, often derailing important administration initiatives. More information about the symposium can be obtained at: http://www.law.duke.edu/journals/delpf/symposium.
Unfortunately the Duke conference coincided with a terrific Maryland conference on the 60th anniversary of the Universal Declaration on Human Rights. The conference featured presentations by Mary Robinson, former President of Ireland and former UN High Commissioner on Human Rights, former South African Chief Justice Arthur Chaskalson, and South African Constitutional Court Justice Bess Nkabinde. Because I was at Duke I missed the conference, but I was able to attend a talk by Mary Robinson today. After her presentation I asked her what the new U.S. President could do to restore its tarnished human rights reputation. She recommended that the new President immediately announce a policy of “no torture and no renditions,” close Guantanamo, and reengage with the UN Commission on Human Rights.
On Friday, October 24, the European Union (EU) approved a cap of greenhouse gas (GHG) emissions from airlines flying into or out of the EU. Citing the global economic turmoil, the director general of the International Air Transport Association denounced the new regulations, which he claimed would cost airlines $4.4 billion. The regulations take effect on January 1, 2012. Mindful of the potential economic impact of the regulations, the regulations allow start-up airlines and airlines growing faster than 18% a year to qualify for the issuance of a limited supply of additional fre permits.
Monday, October 27, 2008
Wednesday, October 22, 2008
Will the Global FInancial Crisis Undermine Efforts to Control Greenhouse Gas Emissions?
As the global economic crisis continues to cause turmoil, concern is growing that it will force governments to shelve efforts to adopt new controls on emissions of greenhouse gases (GHGs) to respond to global warming and climate change. Last week Canadian voters returned the Conservative government to power in an election viewed in part as a rejection of the Liberal Party’s plan for a nationwide carbon tax. At the same time, resistance is growing to the plan the European Union (EU) adopted last year to reduce emissions of GHGs by 20% below 1990 levels by the year 2020.
At a meeting of EU heads of state in Brussels on October 15 & 16, several leaders questioned whether the 20/20 goal could be achieved in light of the current financial crisis. Italian Prime Minister Silvio Berlusconi led the resistance with support from the leaders of Bulgaria, Latvia, and Poland, a country heavily dependent on coal. President Nicolas Sarkozy of France, who chaired the summit meeting, argued that it was crucial to maintain a consensus in favor of the 20/20 plan in order not to undermine negotiations with a new U.S. president on a global regime for controlling GHG emissions. Leaders of poorer Eastern European countries argued that some concessions should be made to accommodate them because it would be more difficult for them to meet the 20/20 goals given their greater dependence on fossil fuels. The leaders agreed to allow any of the 27 EU member countries to veto the final plan and they declined to set a December 2008 deadline for finalizing it. Stephen Castle, European Nations, Fearing Downturn, Seek to Revise Agreement on Emissions Cuts, New York Times, October 17, 2008, p. A6.
To be sure, there were other reasons for the Liberal Party’s defeat in the Canadian elections rather than simply voter opposition to a nationwide carbon tax. One report noted that Liberal Party leader Stéphan Dion’s less than stellar command of English could have been a factor. To make the carbon tax more appealing the Liberals had promised offsetting reductions in income taxes.
Every time the economy slows, arguments for relaxing environmental regulations seem more appealing to some, as illustrated by President George H.W. Bush’s actions during the 1992 presidential campaign. After having fought for the far-reaching 1990 Clean Air Act Amendments he imposed a regulatory moratorium that made it difficult to implement them and blamed the spotted owl for some of the economic troubles. No one enjoys an economic downturn and the current global financial crisis has been truly frightening at times because it appears to be of a magnitude not seen since the Great Depression. But one also should remember that a slowdown in economic activity reduces emissions, including emissions of greenhouse gases, that will make it much easier to achieve any reduction goal, which is why Russia’s Kyoto commitment to reduce emissions over 1990 levels has been so easy to achieve. Stay tuned to see how these arguments play out when COP-14 is held in Poznan, Poland from December 1-12.
At a meeting of EU heads of state in Brussels on October 15 & 16, several leaders questioned whether the 20/20 goal could be achieved in light of the current financial crisis. Italian Prime Minister Silvio Berlusconi led the resistance with support from the leaders of Bulgaria, Latvia, and Poland, a country heavily dependent on coal. President Nicolas Sarkozy of France, who chaired the summit meeting, argued that it was crucial to maintain a consensus in favor of the 20/20 plan in order not to undermine negotiations with a new U.S. president on a global regime for controlling GHG emissions. Leaders of poorer Eastern European countries argued that some concessions should be made to accommodate them because it would be more difficult for them to meet the 20/20 goals given their greater dependence on fossil fuels. The leaders agreed to allow any of the 27 EU member countries to veto the final plan and they declined to set a December 2008 deadline for finalizing it. Stephen Castle, European Nations, Fearing Downturn, Seek to Revise Agreement on Emissions Cuts, New York Times, October 17, 2008, p. A6.
To be sure, there were other reasons for the Liberal Party’s defeat in the Canadian elections rather than simply voter opposition to a nationwide carbon tax. One report noted that Liberal Party leader Stéphan Dion’s less than stellar command of English could have been a factor. To make the carbon tax more appealing the Liberals had promised offsetting reductions in income taxes.
Every time the economy slows, arguments for relaxing environmental regulations seem more appealing to some, as illustrated by President George H.W. Bush’s actions during the 1992 presidential campaign. After having fought for the far-reaching 1990 Clean Air Act Amendments he imposed a regulatory moratorium that made it difficult to implement them and blamed the spotted owl for some of the economic troubles. No one enjoys an economic downturn and the current global financial crisis has been truly frightening at times because it appears to be of a magnitude not seen since the Great Depression. But one also should remember that a slowdown in economic activity reduces emissions, including emissions of greenhouse gases, that will make it much easier to achieve any reduction goal, which is why Russia’s Kyoto commitment to reduce emissions over 1990 levels has been so easy to achieve. Stay tuned to see how these arguments play out when COP-14 is held in Poznan, Poland from December 1-12.
Monday, October 13, 2008
World Conservation Congress in Barcelona
On Sunday October 12 I returned from a week at the World Conservation Congress in Barcelona. The Congress, which is held every four years, attracted 8,000 environmental leaders from governments, NGOs, academia, and businesses in 177 countries. It opened on October 5 with an impressive opening ceremony featuring the theme “What Kind of World Do We Want to See?”
The first four days of the Congress were devoted to a Forum that featured hundreds of programs, exhibits, and poster sessions addressing a dizzying array of environmental issues. For example, on Tuesday I attended a session on the impact of climate change on the Arctic region. Moderated by Fran Beinecke, president of the Natural Resources Defense Council, it featured Jim Leape, co-author of my Environmental Regulation casebook and now director-general of the World Wildlife Fund, His Royal Highness Prince Albert of Monaco, whose foundation has been supporting environmental initiatives, and scientist Jane Lubchenko from Oregon State University. Prince Albert showed a video of his trip to the North Pole that featured him lurching about with a GPS to locate the exact point where it would register 90 degrees north latitude where he planted the flag of Monaco. After the session I had my first opportunity to speak to Jim Leape since he moved to Switzerland to assume leadership of WWF in 2005.
While IUCN has become so large as to be almost unwieldy, one of the great features of the Congress is the diversity of its participants with scientists, lawyers, business people, activists and academics from every corner of the globe rubbing shoulders. This made for some lively exchanges at some of the sessions. At the Congress I finally got a chance to meet Ma Jun, director of the Institute of Public and Environmental Affairs in Beijing. He is probably the only prominent environmental professional in China that I did not manage to meet during my time teaching there in the spring. His Institute has prepared a database of polluting companies in China that is available online at http://en.ipe.org.cn/ It has received wide publicity in China as a tool for citizens to put pressure on companies to reduce their pollution. He discussed his use of the database in a video interview that is online at the IUCN website http://www.iucn.org/news_events/events/congress/live/news/index.cfm?uNewsID=1850.
The Congress also featured a Conservation Cinema that continuously showed environmental films from around the world. It was inspiring to see how many NGOs are now making videos and films, many of them highly sophisticated, to communicate environmental issues to the public. I am hoping that some of the films my students have been making may be shown at a future Congress. While I was at the Congress I had a group of former students who had made environmental films in my class speak to my current class and show them the films they had made. I introduced the speakers by videoconference from my hotel room in Barcelona. On Wednesday October 8, I used videoconferencing to introduce Neal Kemkar, a former student of mine who gave a guest lecture to my class on Winter v. NRDC, an environmental case argued that morning in the Supreme Court. Neal just finished a clerkship with Judge Betty Fletcher of the Ninth Circuit, the author of the Winter decision upholding an injunction restricting the Navy’s use of sonar because of its potential to harm marine mammals.
On Thursday evening, Sheila Abed, chair of the Commission on Environmental Law, sponsored a cocktail party for commission members at a hotel across from the Convention Center. This enabled me to catch up with many other environmental law professors from around the world, including many who I will see next month in Mexico City at the IUCN Academy of Environmental Law’s annual colloquium.
The first four days of the Congress were devoted to a Forum that featured hundreds of programs, exhibits, and poster sessions addressing a dizzying array of environmental issues. For example, on Tuesday I attended a session on the impact of climate change on the Arctic region. Moderated by Fran Beinecke, president of the Natural Resources Defense Council, it featured Jim Leape, co-author of my Environmental Regulation casebook and now director-general of the World Wildlife Fund, His Royal Highness Prince Albert of Monaco, whose foundation has been supporting environmental initiatives, and scientist Jane Lubchenko from Oregon State University. Prince Albert showed a video of his trip to the North Pole that featured him lurching about with a GPS to locate the exact point where it would register 90 degrees north latitude where he planted the flag of Monaco. After the session I had my first opportunity to speak to Jim Leape since he moved to Switzerland to assume leadership of WWF in 2005.
While IUCN has become so large as to be almost unwieldy, one of the great features of the Congress is the diversity of its participants with scientists, lawyers, business people, activists and academics from every corner of the globe rubbing shoulders. This made for some lively exchanges at some of the sessions. At the Congress I finally got a chance to meet Ma Jun, director of the Institute of Public and Environmental Affairs in Beijing. He is probably the only prominent environmental professional in China that I did not manage to meet during my time teaching there in the spring. His Institute has prepared a database of polluting companies in China that is available online at http://en.ipe.org.cn/ It has received wide publicity in China as a tool for citizens to put pressure on companies to reduce their pollution. He discussed his use of the database in a video interview that is online at the IUCN website http://www.iucn.org/news_events/events/congress/live/news/index.cfm?uNewsID=1850.
The Congress also featured a Conservation Cinema that continuously showed environmental films from around the world. It was inspiring to see how many NGOs are now making videos and films, many of them highly sophisticated, to communicate environmental issues to the public. I am hoping that some of the films my students have been making may be shown at a future Congress. While I was at the Congress I had a group of former students who had made environmental films in my class speak to my current class and show them the films they had made. I introduced the speakers by videoconference from my hotel room in Barcelona. On Wednesday October 8, I used videoconferencing to introduce Neal Kemkar, a former student of mine who gave a guest lecture to my class on Winter v. NRDC, an environmental case argued that morning in the Supreme Court. Neal just finished a clerkship with Judge Betty Fletcher of the Ninth Circuit, the author of the Winter decision upholding an injunction restricting the Navy’s use of sonar because of its potential to harm marine mammals.
On Thursday evening, Sheila Abed, chair of the Commission on Environmental Law, sponsored a cocktail party for commission members at a hotel across from the Convention Center. This enabled me to catch up with many other environmental law professors from around the world, including many who I will see next month in Mexico City at the IUCN Academy of Environmental Law’s annual colloquium.
Sunday, October 5, 2008
World Conservation Congress, Lisbon & Vermont
Today I arrived in Barcelona for the opening of the World Conservation Congress. The Congress, sponsored by the International Union for the Conservation of Nature (IUCN) is held every four years. Four years ago in 2004 I attended the Congress in Bangkok and in 2000 I participated in it when it was held in Amman, Jordan, with Queen Noor as the host. IUCN is an unusual conglomerate of governments, NGOs and others interested in global environmental protection.
Yesterday I visited Lisbon, Portugal for the first time. I was very impressed with the city which is a great combination of old and new. It is very pedestrian-friendly with cars stopping for people in crosswalks, something I never experienced in Beijing. I had a fabulous lunch at Eleven, Lisbon’s only restaurant with a Michelin star, which is located in a park with a spectacular view of Lisbon.
A week ago Friday I visited Vermont Law School (VLS) to give a lecture on “The War of the Worldviews: Precaution v. Reaction on the U.S. Supreme Court.” The lecture expanded on some themes I outlined in my article in the latest edition of the Supreme Court Review - that the Court is narrowly split between two fundamentally different approaches to government regulation that repeatedly resurface in cases involving standing, statutory interpretation, and deference to the decisions of administrative agencies. I had a great time at Vermont where I have a lot of terrific friends, including Tseming Yang, co-author of my forthcoming casebook on Global Environmental Law, and Jason Czarnezki, who just joined the VLS faculty from Marquette.
In the last two weeks there has been considerable news in the global environmental law area. Last Monday I was interviewed by Greenwire about voter approval of the new Ecuadoran constitution that contains the most far-reaching environmental provisions of any constitution. It recognizes the rights of nature in a distinctly eco-centric way not seen in other constitutions and it requires the government as a constitutional obligation to remediate environmental contamination. Of course, its impact will depend on how it is implemented by legislation and judicial interpretation. Given that this is Ecuador’s 20th constitution in a country that has seen so many changes of government in recent years, it remains to be seen whether the political stability that is necessary for law to thrive and be respected will be forthcoming.
The European Union seems to be holding firm with its desire to adopt stringent new limits on greenhouse gas emissions by automobiles. However, several European car companies and a few governments are lobbying hard to weaken the standards.
Tata Motors has announced that it will shift manufacture of the Tata Nano, the world’s cheapest car, to a new plant outside of West Bengal where protests continue against the existing plant (see Sept. 8th post reporting on a settlement agreement that now appears not to have been successful).
While the U.S. financial crisis reflects the fruits of overly aggressive deregulation at the behest of the financial industry, as my colleague Rena Steinzor has pointed out in an op-ed in the Baltimore Sun (“Reviving Regulation, Baltimore Sun, Sept. 28, 2008), one probably can expect to start hearing the financial crisis being raised as an asserted justification for loosening (or at least not improving) environmental standards. That already seems to be happening here in Europe as part of the automakers’ opposition to strengthening controls on emissions of greenhouse gases.
Yesterday I visited Lisbon, Portugal for the first time. I was very impressed with the city which is a great combination of old and new. It is very pedestrian-friendly with cars stopping for people in crosswalks, something I never experienced in Beijing. I had a fabulous lunch at Eleven, Lisbon’s only restaurant with a Michelin star, which is located in a park with a spectacular view of Lisbon.
A week ago Friday I visited Vermont Law School (VLS) to give a lecture on “The War of the Worldviews: Precaution v. Reaction on the U.S. Supreme Court.” The lecture expanded on some themes I outlined in my article in the latest edition of the Supreme Court Review - that the Court is narrowly split between two fundamentally different approaches to government regulation that repeatedly resurface in cases involving standing, statutory interpretation, and deference to the decisions of administrative agencies. I had a great time at Vermont where I have a lot of terrific friends, including Tseming Yang, co-author of my forthcoming casebook on Global Environmental Law, and Jason Czarnezki, who just joined the VLS faculty from Marquette.
In the last two weeks there has been considerable news in the global environmental law area. Last Monday I was interviewed by Greenwire about voter approval of the new Ecuadoran constitution that contains the most far-reaching environmental provisions of any constitution. It recognizes the rights of nature in a distinctly eco-centric way not seen in other constitutions and it requires the government as a constitutional obligation to remediate environmental contamination. Of course, its impact will depend on how it is implemented by legislation and judicial interpretation. Given that this is Ecuador’s 20th constitution in a country that has seen so many changes of government in recent years, it remains to be seen whether the political stability that is necessary for law to thrive and be respected will be forthcoming.
The European Union seems to be holding firm with its desire to adopt stringent new limits on greenhouse gas emissions by automobiles. However, several European car companies and a few governments are lobbying hard to weaken the standards.
Tata Motors has announced that it will shift manufacture of the Tata Nano, the world’s cheapest car, to a new plant outside of West Bengal where protests continue against the existing plant (see Sept. 8th post reporting on a settlement agreement that now appears not to have been successful).
While the U.S. financial crisis reflects the fruits of overly aggressive deregulation at the behest of the financial industry, as my colleague Rena Steinzor has pointed out in an op-ed in the Baltimore Sun (“Reviving Regulation, Baltimore Sun, Sept. 28, 2008), one probably can expect to start hearing the financial crisis being raised as an asserted justification for loosening (or at least not improving) environmental standards. That already seems to be happening here in Europe as part of the automakers’ opposition to strengthening controls on emissions of greenhouse gases.
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