On Friday November 21 the University of Maryland Environmental Law Program hosted its 16th annual Winetasting Party for students, faculty and alumni. This event originated in 1992 when a former dean encouraged faculty who require students to use casebooks authored by them to rebate to students the royalties earned from the casebook purchases in the form of a party. Since my Environmental Law students use my casebook, I provide the wines each year and the school provides the food. The event has grown in size each year as the number of alums from our program increases. This year it also served as a retirement party for Program Coordinator Laura Mrozek who on Wednesday retired after 22 years of service to the school. More than 250 people attended this year’s event to honor her. The alums presented Laura and the school with a check for more than $5,000 to fund a public interest summer grant in her honor. Photos from the event are posted online at: http://gallery.me.com/rperci/100336.
It was terrific to see so many alums at the party, though it was frustrating that because of the huge turnout there was not enough time to get to catch up with all of them. To honor Laura’s retirement, I brought some of the very best wines from my cellar, including a 1982 and a 1986 Chateau Mouton Rothschild, some other 1982 Bordeauxs, and some of the best California cabernets from the early 1980s. I have always thought that protection of the environment and enjoyment of wine go hand in hand. Our Environmental Law Program has even commissioned wine glasses with a logo that says “Wine -- Nature’s Thanks for Preserving the Earth”.
Last year Britain launched a new approach to tackling climate change modeled on the Bank of England’s Monetary Policy Committee that since 1997 has removed interest rate policy decisions from the political process. To insulate greenhouse gas reduction targets from political manipulation, the country enacted a law establishing an independent Committee on Climate Change, chaired by Lord Jonathan Adair Turner, a former Director General of the Confederation of British Industry. Composed of experts in environmental science, economics, and business, the panel next week will publish three carbon budgets to govern different parts of the British economy through the year 2022. These budgets are to be legally binding and enforceable against the British government, though not all the legal details have been worked out yet. Of course, if efforts to reduce greenhouse gas emissions engender widespread public opposition, Parliament could always repeal the law, just as the U.S. Congress could abolish independent agencies like the Federal Reserve Board.
On Tuesday November 25 I was interviewed on Baltimore’s National Public Radio station (WYPR) about the Bush administration’s efforts to issue “midnight regulations” to weaken environmental protections. A tape of the program, “Maryland Mornings with Sheila Kast,” is available online at: http://www.wypr.org/MD_MORNING.html While I noted that every administration in recent years has issued a flurry of regulations at the end of its term, I distinguished between regulations long in the pipeline that involve “finishing your homework” and efforts to rush through parting gifts to special interest groups. I argued that most of the Bush administration’s efforts fall into the latter category. During the interview I discussed how the incoming Obama administration and Congress could block or reverse the “midnight regulations” by suspending the effective date of regulatory changes that had not already gone into effect or using the Congressional Review Act to veto the changes. I also noted that some of the changes would be vulnerable to lawsuits challenging their legality because they had been rushed through the process so quickly. The most difficult actions to reverse will be the awarding of leases for oil drilling on public lands because the leases create entitlements. While the Bush administration revealed last week that it had scrapped plans to lease a few parcels near national parks after objections from the National Park Service, it seems determined to lease some other areas that may affect aesthetics at the parks.
Sunday, November 30, 2008
Sunday, November 16, 2008
IUCN Academy Colloquium in Mexico City
Nearly two hundred environmental law professors from 41 countries gathered in Mexico City this week for the annual colloquium of the IUCN Academy of Environmental Law. The event was hosted by the Metropolitan Autonomous University of Mexico City under the leadership of Jose Juan Gonzalez Marquez, Vice Chair of the Academy. It featured full-days of presentations on Monday, Tuesday, and Thursday, a field trip on Wednesday, and a half day of presentations on Friday, followed by a closing ceremony passing the torch to Wuhan University, which will host next year’s colloquium.
Many of the presentations dealt with climate change issues, including a terrific presentation by Professor Lesley McAllister who reviewed problems with existing cap-and-trade programs and questioned whether they would be successful when applied to control emissions of greenhouse gases (GHGs). Anita Ronne from the University of Copenhagen described how Denmark’s development of renewal energy has enabled the country to increase GDP by 56% since 1989 while reducing CO2 emissions by 22%. She noted that on October 24, 51 countries meeting in Madrid agreed to establish an International Renewable Energy Agency to promote further development of renewables. A treaty establishing the agency will be signed in Madrid on January 26. Professor David Hodas emphasized the importance of establishing a global cap on GHG emissions and argued for immediate focus on GHG control actions on which even countries with divergent interests could agree. Professor Wang Xi from Shanghai Jiao Tong University noted that a large portion of Chinese emissions of GHG are caused by the products exported to the U.S. and other developed countries, which has been referred to as “carbon laundering”. Professor Marjan Peters of the University of Maastricht raised the idea of personable tradable carbon allowances in the form of “carbon credit cards”.
There was considerable discussion of the impact of the global financial crisis on global environmental protection efforts. Ricardo Sanchez from UNEP’s regional office for Latin America noted that crises often can be opportunities for promoting new policies, but others noted that many countries, including Mexico, will be forced to reduce their environmental protection budgets due to economic difficulties.
One of the great features of these annual colloquia is that they present an opportunity to learn about environmental law and policy developments throughout the world. Alfred Mumma from the University of Nairobi described his work as a member of Kenya’s National Environmental Tribunal, which was established in 2003. This specialized body of lawyers and scientists primarily has been hearing cases involving housing developments who need environmental impact assessment licenses. Disputes over the standing of neighborhood groups to appeal approvals of development projects have been a prominent issue before the tribunal. One advantage of the Tribunal is that it has taken on average only 6 months to resolve cases that would take an average of three years if litigated through Kenya’s court system. Rock Pring from the University of Denver described the results of his fascinating year-long collaboration with his wife on a study 35 specialized environmental courts in 21 countries. He noted that most such courts are established to increase access to environmental justice, though there is considerable variation in their jurisdiction and practices. Bangladesh’s environmental court heard only 17 cases last year due to its requirement that litigants must first receive permission from a government ministry. Sweden’s court only allows Swedish NGOs with more than 2,000 members to have standing, which limits the universe of NGOs who can appear before the court to two.
There was considerable discussion of developments in environmental law in Mexico. The governor of Mexico’s Federal District, Marcelo Ebrard Casaubon, hosted a reception for the IUCN Academy at his government’s offices in a historic 16th-century building adjoining the Zócalo, the largest main square in Latin America. He is committed to promoting green development and has launched several new policies, including vehicle-free mornings to promote bicycle use and the appointment of an experienced, independent prosecutor, Diana Ponce Nava, to focus on environmental cases. Several presentations focused on Mexico’s efforts to improve the management of protected areas by involving local communities in their management. Jose Cibrian Tovar, Director General of Mexico’s National Forest Commission, described “Pro Arbol” program to pay locals for forest preservation efforts. Some speakers noted that a major problem facing Mexican environmental protection efforts is that virtually all major projects involving development of natural resources in the country are tainted by corruption in some form.
At a plenary session on Monday I made a presentation on “Global Environmental Law and Poverty Alleviation.” I discussed the globalization of environmental law, a topic that I will explore in more depth during my Garrison Lecture at Pace Law School on April 1. I then explored how three global crises - the financial crisis, dramatic fluctuations in oil and food prices, and the climate crisis - are jeopardizing the achievement of the Millennium Development goals, particularly the goals of poverty alleviation and environmental protection.
Following the meeting with the governor on Wednesday there was a field trip to “Los Dinamos,” a forest preserve in the mountains outside of Mexico City named for small hydropower plants that were used to power a textile industry in the 18th century. Local residents escorted our group on hikes up into the forest. They described some of the difficulties facing the community because of the lack of clear legal protections for communal property.
Abstracts and papers prepared for the colloquium will be posted on the Academy’s website at: www.iucnael.org. A gallery of photos I took at the conference and in Mexico City is available at: http://gallery.me.com/rperci/100328. Surprisingly, many U.S. law schools who have specialized environmental law programs are not yet members of the IUCN Academy of Environmental Law. In fact, I am told that there are now more law schools in China that are members than U.S. law schools. We hope to encourage more U.S. law schools to become academy members in the future.
After lunch on Tuesday we were treated to a performance of indigenous dancers, wearing thongs and elaborate feather costumes, who persuaded most of the conference participants to join them in dancing. Seeing professors in suits holding hands with Mayan dancers and running around a ceremonial circle was most amusing. On Thursday I also was amused, during a brief sightseeing trip around Mexico City, to see a group of naked protesters who covered their private parts with photos of the government officials who were the targets of their protest.
I arrived back in the U.S. on Friday just in time to join my dean at a dinner with two of our school’s most illustrious alums - Robert Parker, the world’s leading wine critic, and Jamie McCourt, president and co-owner of the Los Angeles Dodgers. Parker brought the wines, which were paired with each of eight courses prepared by Cindy Wolf, executive chef and co-owner of Baltimore’s Charleston restaurant. Parker’s running commentary on the fifteen different wines we tasted made for a most educational evening, as did his (and Jamie McCourt’s) recollections of what our law school used to be like. Needless to say, the food and wine were spectacular. Next Friday I will be hosting our Environmental Law Program’s annual winetasting party for students and alums.
Many of the presentations dealt with climate change issues, including a terrific presentation by Professor Lesley McAllister who reviewed problems with existing cap-and-trade programs and questioned whether they would be successful when applied to control emissions of greenhouse gases (GHGs). Anita Ronne from the University of Copenhagen described how Denmark’s development of renewal energy has enabled the country to increase GDP by 56% since 1989 while reducing CO2 emissions by 22%. She noted that on October 24, 51 countries meeting in Madrid agreed to establish an International Renewable Energy Agency to promote further development of renewables. A treaty establishing the agency will be signed in Madrid on January 26. Professor David Hodas emphasized the importance of establishing a global cap on GHG emissions and argued for immediate focus on GHG control actions on which even countries with divergent interests could agree. Professor Wang Xi from Shanghai Jiao Tong University noted that a large portion of Chinese emissions of GHG are caused by the products exported to the U.S. and other developed countries, which has been referred to as “carbon laundering”. Professor Marjan Peters of the University of Maastricht raised the idea of personable tradable carbon allowances in the form of “carbon credit cards”.
There was considerable discussion of the impact of the global financial crisis on global environmental protection efforts. Ricardo Sanchez from UNEP’s regional office for Latin America noted that crises often can be opportunities for promoting new policies, but others noted that many countries, including Mexico, will be forced to reduce their environmental protection budgets due to economic difficulties.
One of the great features of these annual colloquia is that they present an opportunity to learn about environmental law and policy developments throughout the world. Alfred Mumma from the University of Nairobi described his work as a member of Kenya’s National Environmental Tribunal, which was established in 2003. This specialized body of lawyers and scientists primarily has been hearing cases involving housing developments who need environmental impact assessment licenses. Disputes over the standing of neighborhood groups to appeal approvals of development projects have been a prominent issue before the tribunal. One advantage of the Tribunal is that it has taken on average only 6 months to resolve cases that would take an average of three years if litigated through Kenya’s court system. Rock Pring from the University of Denver described the results of his fascinating year-long collaboration with his wife on a study 35 specialized environmental courts in 21 countries. He noted that most such courts are established to increase access to environmental justice, though there is considerable variation in their jurisdiction and practices. Bangladesh’s environmental court heard only 17 cases last year due to its requirement that litigants must first receive permission from a government ministry. Sweden’s court only allows Swedish NGOs with more than 2,000 members to have standing, which limits the universe of NGOs who can appear before the court to two.
There was considerable discussion of developments in environmental law in Mexico. The governor of Mexico’s Federal District, Marcelo Ebrard Casaubon, hosted a reception for the IUCN Academy at his government’s offices in a historic 16th-century building adjoining the Zócalo, the largest main square in Latin America. He is committed to promoting green development and has launched several new policies, including vehicle-free mornings to promote bicycle use and the appointment of an experienced, independent prosecutor, Diana Ponce Nava, to focus on environmental cases. Several presentations focused on Mexico’s efforts to improve the management of protected areas by involving local communities in their management. Jose Cibrian Tovar, Director General of Mexico’s National Forest Commission, described “Pro Arbol” program to pay locals for forest preservation efforts. Some speakers noted that a major problem facing Mexican environmental protection efforts is that virtually all major projects involving development of natural resources in the country are tainted by corruption in some form.
At a plenary session on Monday I made a presentation on “Global Environmental Law and Poverty Alleviation.” I discussed the globalization of environmental law, a topic that I will explore in more depth during my Garrison Lecture at Pace Law School on April 1. I then explored how three global crises - the financial crisis, dramatic fluctuations in oil and food prices, and the climate crisis - are jeopardizing the achievement of the Millennium Development goals, particularly the goals of poverty alleviation and environmental protection.
Following the meeting with the governor on Wednesday there was a field trip to “Los Dinamos,” a forest preserve in the mountains outside of Mexico City named for small hydropower plants that were used to power a textile industry in the 18th century. Local residents escorted our group on hikes up into the forest. They described some of the difficulties facing the community because of the lack of clear legal protections for communal property.
Abstracts and papers prepared for the colloquium will be posted on the Academy’s website at: www.iucnael.org. A gallery of photos I took at the conference and in Mexico City is available at: http://gallery.me.com/rperci/100328. Surprisingly, many U.S. law schools who have specialized environmental law programs are not yet members of the IUCN Academy of Environmental Law. In fact, I am told that there are now more law schools in China that are members than U.S. law schools. We hope to encourage more U.S. law schools to become academy members in the future.
After lunch on Tuesday we were treated to a performance of indigenous dancers, wearing thongs and elaborate feather costumes, who persuaded most of the conference participants to join them in dancing. Seeing professors in suits holding hands with Mayan dancers and running around a ceremonial circle was most amusing. On Thursday I also was amused, during a brief sightseeing trip around Mexico City, to see a group of naked protesters who covered their private parts with photos of the government officials who were the targets of their protest.
I arrived back in the U.S. on Friday just in time to join my dean at a dinner with two of our school’s most illustrious alums - Robert Parker, the world’s leading wine critic, and Jamie McCourt, president and co-owner of the Los Angeles Dodgers. Parker brought the wines, which were paired with each of eight courses prepared by Cindy Wolf, executive chef and co-owner of Baltimore’s Charleston restaurant. Parker’s running commentary on the fifteen different wines we tasted made for a most educational evening, as did his (and Jamie McCourt’s) recollections of what our law school used to be like. Needless to say, the food and wine were spectacular. Next Friday I will be hosting our Environmental Law Program’s annual winetasting party for students and alums.
Sunday, November 9, 2008
Obama Wins, Rotterdam Convention COP-4, EU Auto Carbon Emissions, ELI DInner & MSU Conference
Much has happened in the past two weeks. Environmentalists in the U.S. are walking around with big smiles on their faces after the stunning election of Barack Obama to be the 44th president of the United States. The election was a decisive victory with Obama winning 53% of the popular vote to John McCain’s 46%. In electoral votes, which are what matters to win the election (Al Gore had 543,895 more popular votes than George W. Bush in 2000) Obama received 364 electoral votes to McCain’s 174. Democrats picked up at least six seats in the Senate (with three races remaining to be decided) and 19 seats in the House (with six races still to be decided). This election result is likely to produce significant, positive changes in federal environmental policy.
The fourth Conference of the Parties (COP-4) to the Rotterdam Convention failed to add chrysotile (white) asbestos to the list of hazardous substances that require prior informed consent before they can be exported from one country to another. While 120 countries supported the proposal to add chrysotile asbestos to the list, opposition by India, Kyrgistan, Kazakhstan, Vietnam, Ukraine, Pakistan and the Phillippines blocked the proposal, not on scientific grounds, but on political grounds. It will be reconsidered next year at COP-5. For background on the controversy, which charges the Candian government with hypocrisy in continuing to export such a dangerous product that is rarely used in Canada today, see “Hazardous Hypocrisy,” Economist, October 25, 2008, p. 49.
European Union states agreed to delay compliance with new rules to limit carbon emissions from automobiles to 2015. The decision is considered a victory for the continent’s auto industry, which had opposed the previous plan to require compliance by 2012.
On Monday November 3, Fulbright scholar Emmanuel Kasimbazi from Uganda, who is visiting at the University of Maryland School of Law this fall, gave a talk on the role of developed and developing countries in combating climate change. A large group of students from the Maryland Environmental Law Society (MELS) attended the talk, which was held at the law school. On Wednesday November 5 Emanuel and I attended the Environmental Law Institute’s Annual Dinner. Unfortunately, heavy traffic following my environmental law class kept us from attending the pre-dinner reception. At the dinner we heard this year’s honoree, former ELI President J. William Futrell, give a talk emphasizing the importance of focusing environmental concern on the protection of soils.
On Friday, November 7, I spoke at a conference at Michigan State University College of Law on “Administrative Statutory Interpretation.” I addressed the question of whether regulatory statutes should be interpreted to give the President directive authority over agency heads in making regulatory decisions (“Who’s in Charge? Interpreting Agency Regulatory Authority in the Era of Presidential Management”). The conference featured a stellar group of administrative law scholars. Jerry Mashaw presented a fascinating paper on administrative law in the 19th century, which included fascinating research on the commission Congress established in 1832 to regulate the safety of steamship boilers. Cary Coglianese presented data questioning whether the Supreme Court’s Chevron decision has changed the rate of judicial reversal of agency decisions. Dick Pierce criticized the Court’s 2007 decisions in Massachusetts v. EPA and NAHB v. Defenders of Wildlife for holding it impermissible for an agency to consider factors other than those specifically mandated by statute.
I am now in Mexico City for Sixth Annual Colloquium of the IUCN Academy of Environmental Law. The theme of the conference is “Poverty Alleviation and Environmental Protection.”
The fourth Conference of the Parties (COP-4) to the Rotterdam Convention failed to add chrysotile (white) asbestos to the list of hazardous substances that require prior informed consent before they can be exported from one country to another. While 120 countries supported the proposal to add chrysotile asbestos to the list, opposition by India, Kyrgistan, Kazakhstan, Vietnam, Ukraine, Pakistan and the Phillippines blocked the proposal, not on scientific grounds, but on political grounds. It will be reconsidered next year at COP-5. For background on the controversy, which charges the Candian government with hypocrisy in continuing to export such a dangerous product that is rarely used in Canada today, see “Hazardous Hypocrisy,” Economist, October 25, 2008, p. 49.
European Union states agreed to delay compliance with new rules to limit carbon emissions from automobiles to 2015. The decision is considered a victory for the continent’s auto industry, which had opposed the previous plan to require compliance by 2012.
On Monday November 3, Fulbright scholar Emmanuel Kasimbazi from Uganda, who is visiting at the University of Maryland School of Law this fall, gave a talk on the role of developed and developing countries in combating climate change. A large group of students from the Maryland Environmental Law Society (MELS) attended the talk, which was held at the law school. On Wednesday November 5 Emanuel and I attended the Environmental Law Institute’s Annual Dinner. Unfortunately, heavy traffic following my environmental law class kept us from attending the pre-dinner reception. At the dinner we heard this year’s honoree, former ELI President J. William Futrell, give a talk emphasizing the importance of focusing environmental concern on the protection of soils.
On Friday, November 7, I spoke at a conference at Michigan State University College of Law on “Administrative Statutory Interpretation.” I addressed the question of whether regulatory statutes should be interpreted to give the President directive authority over agency heads in making regulatory decisions (“Who’s in Charge? Interpreting Agency Regulatory Authority in the Era of Presidential Management”). The conference featured a stellar group of administrative law scholars. Jerry Mashaw presented a fascinating paper on administrative law in the 19th century, which included fascinating research on the commission Congress established in 1832 to regulate the safety of steamship boilers. Cary Coglianese presented data questioning whether the Supreme Court’s Chevron decision has changed the rate of judicial reversal of agency decisions. Dick Pierce criticized the Court’s 2007 decisions in Massachusetts v. EPA and NAHB v. Defenders of Wildlife for holding it impermissible for an agency to consider factors other than those specifically mandated by statute.
I am now in Mexico City for Sixth Annual Colloquium of the IUCN Academy of Environmental Law. The theme of the conference is “Poverty Alleviation and Environmental Protection.”
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