Ten days after the close of the Copenhagen Conference a lively debate continues concerning what was accomplished and what the next steps should be. Last week Yvo de Boer, the UN official who had been in charge of the talks, called for an end to “fingerpointing” and “recriminations” after British climate minister Ed Miliband blamed China for blocking greater progress at Copenhagen, sparking an angry response from Chinese officials.
Some law professors are debating the legal status the “Copenhagen Accord” negotiated by President Obama with the leaders of China, Brazil, India and South Africa in the closing moments of what was scheduled to be the last day of the conference. Should it be considered “soft law” or does the fact that the Conference of the Parties (COP) simply “noted” its existence, rather than formally adopting it, deprive it of any legal force, and does any of this even really matter at all? Does the Secretariat of the UN Framework Convention on Climate Change (UNFCCC) have sufficient authority from the COP to establish the financial mechanisms called for by the Accord including the Green Climate Fund and High Level Panel and to develop the transparency guidelines it promises? How many countries will submit emission reduction commitments to “fill in the blanks” in the Accord’s Appendices by January 31 and how strong will these commitments be?
The European press made much of the fact that market price of emissions allowances trading in the European Union (EUAs) dropped significantly following the close of the conference. While much of the global press portrayed Copenhagen as a failure, David Doniger, Policy Director for the Natural Resources Defense Council’s Climate Center, hails the Copenhagen Accord as “a big step forward” (http://switchboard.nrdc.org/blogs/ddoniger/the_copenhagen_accord_a_big_st.html). Doniger responds in detail to the most prominent criticisms of the Accord (e.g., it won’t keep the global temperature rise below 2 degrees Centigrade, it doesn’t specify the emissions cuts, the commitments aren’t legally binding, it threatens the future of the UNFCCC, it won’t move the U.S. Senate). Some who were disappointed that more was not accomplished at Copenhagen disagree sharply with his assessment, but Doniger argues that the Accord achieved far more than had been expected while making a necessary end run around obstructionist countries that rendered the COP process ineffective. Crucially, he challenges the notion floated by industry opponents of U.S. climate legislation that there is no hope for Senate action, arguing that Copenhagen actually has made such action more likely.
The huge turnout of civil society groups at Copenhagen may have made it seem like a zoo at times, but it also fostered greater contact between NGOs from all over the world. Guest blogger Huang Jing from the China Youth Climate Action Network described the interactions between Chinese and U.S. youth as one of the most exciting aspects of her experience in Copenhagen. For more information see her guest blog post from December 24.
Tuesday, December 29, 2009
Thursday, December 24, 2009
China-US Youth Activities at Copenhagen Conference (Guest Blogger Huang Jing)
[Professor Percival's former student Huang Jing, who was in Copenhagen with the China Youth Action Climate Network,has contributed the following more detailed blog post about her activities at the recent Copenhagen Conference]
China-U.S. Youth Climate Change: Our Shared Future
On December 10th, from 7-10pm at the University of Copenhagen, about 40 Chinese youth and 60 U.S. youth hold a workshop on “Our Shared Future” in Copenhagen University. This workshop was an unprecedented meeting to discuss their individual journeys to the Copenhagen climate talks, create new relationships that transcend language and cultural differences, and pioneer a new generation of US-Chinese diplomacy built on shared trust and ambition. The main participants came from the most influential US and Chinese youth climate organizations, including the China Youth Climate Action Network, which unites hundreds of campuses and thousands of students across China, and SustainUS, which is leading the largest US youth delegation to the Copenhagen climate talks. After frank and honest conversation on their road to Copenhagen and the climate strategy for the shared future, the young people from the two biggest emitters built mutual trust and would like to explore their ambitions together in the future.
Following this workshop, a joint press conference featuring youth of the two respective countries was held December 14 at 4:00pm in Asger Jorn press conference room of Bella Center. Youth representatives from the United States and China discussed their experiences from the joint meeting and shared plans to continue the development of a relationship based on mutual trust and cooperation in transitioning towards a prosperous and sustainable future for both countries. By joining together, Chinese and United States youth are leading in a way that their elected officials have not been able to.
Every day, about 15,000 people flooded into Bella Center, including governmental representatives, UN staffs, press and media, NGO delegators. The China Youths are 30 among the 15,000. During the COP 15, the first Chinese Youth delegation launched various campaigns to help the world hear their voice.
Campaign One: Green China
On the opening day of COP 15, the Chinese youth delegation, together with Chinese entrepreneurs, also members of Society Entrepreneur Ecology (SEE) and Shanshui Conservation Center, launched the Green China initiative campaign. Jointly they made a promise to build a green China. Chinese youth will do their best to influence the other 400 million Chinese youth to promote climate change actions. We drew considerable attention from much of the news media, including the BBC, Beijing TV station, etc. It was a great presence.
Campaign Two: Traditional Chinese Medical Diagnoses on Climate Change
We held our second major campaign on the 3rd day of COP15 in the Bella Centre: the traditional Chinese Medicine diagnoses on climate change. Our inspiration came from the philosophy behind Chinese medicine - the diagnosis of a whole body as a system. We seek to view the whole world as one system, and work together to combat climate change. Also Chinese medicine is a long-term cure that promotes the enhancement of overall wellness rather than a quick fix.
So we set up a stand decorated as the traditional Chinese Medicine doctor stand and designed a two-meter high thermometer. At every hour, the temperature was raised one degree Celsius, and one living creature (we had our team members dressed up as pandas, monkeys, elephants etc. ) perished and had to be taken away by the devil. We also gave a diagnosed prescription that addressed issues and actions regarding climate change to each 'patient'. We sincerely hope our participants can take actions NOW before it is too late.
Campaign Three: Join in the March, Because There is 'No Planet B'
Dec. 12th was the Global Climate Action Day in Copenhagen. Thousands of similar activities were held worldwide to echo the same message. About 100,000 environmental activists representing 515 environmental NGOs from 67 countries descended on downtown Copenhagen to call for "climate justice".
This was the first time the China youth delegation became part of the people, holding a banner and shouting slogans. We, together with the other demonstrators, hoped to wake up people’s awareness on climate change issues. Every bit of public education can contribute to promoting fundamental changes in society. Ordinary people must change their lifestyles for the planet because there is “No Planet B”.
Due to limitations on the entrance of NGOs into Bella Center, we had to cancel some planned activities in the second week of COP 15. For example, we were supposed to have our “wish tree” campaign, inviting people to write up their climate wishes and put it up in the tree on Dec. 16th, the last day NGOs could get into Bella Center. But people could no longer be satisfied with this type of mild and even poetic way of expressing ourselves on that day. However, we tried our best, and we have no regrets.
[Photos of Huang Jing's group in Copenhagen are posted at: http://www.globalenvironmentallaw.com. Click on "Huang Jing" at the top of the welcoming page].
China-U.S. Youth Climate Change: Our Shared Future
On December 10th, from 7-10pm at the University of Copenhagen, about 40 Chinese youth and 60 U.S. youth hold a workshop on “Our Shared Future” in Copenhagen University. This workshop was an unprecedented meeting to discuss their individual journeys to the Copenhagen climate talks, create new relationships that transcend language and cultural differences, and pioneer a new generation of US-Chinese diplomacy built on shared trust and ambition. The main participants came from the most influential US and Chinese youth climate organizations, including the China Youth Climate Action Network, which unites hundreds of campuses and thousands of students across China, and SustainUS, which is leading the largest US youth delegation to the Copenhagen climate talks. After frank and honest conversation on their road to Copenhagen and the climate strategy for the shared future, the young people from the two biggest emitters built mutual trust and would like to explore their ambitions together in the future.
Following this workshop, a joint press conference featuring youth of the two respective countries was held December 14 at 4:00pm in Asger Jorn press conference room of Bella Center. Youth representatives from the United States and China discussed their experiences from the joint meeting and shared plans to continue the development of a relationship based on mutual trust and cooperation in transitioning towards a prosperous and sustainable future for both countries. By joining together, Chinese and United States youth are leading in a way that their elected officials have not been able to.
Every day, about 15,000 people flooded into Bella Center, including governmental representatives, UN staffs, press and media, NGO delegators. The China Youths are 30 among the 15,000. During the COP 15, the first Chinese Youth delegation launched various campaigns to help the world hear their voice.
Campaign One: Green China
On the opening day of COP 15, the Chinese youth delegation, together with Chinese entrepreneurs, also members of Society Entrepreneur Ecology (SEE) and Shanshui Conservation Center, launched the Green China initiative campaign. Jointly they made a promise to build a green China. Chinese youth will do their best to influence the other 400 million Chinese youth to promote climate change actions. We drew considerable attention from much of the news media, including the BBC, Beijing TV station, etc. It was a great presence.
Campaign Two: Traditional Chinese Medical Diagnoses on Climate Change
We held our second major campaign on the 3rd day of COP15 in the Bella Centre: the traditional Chinese Medicine diagnoses on climate change. Our inspiration came from the philosophy behind Chinese medicine - the diagnosis of a whole body as a system. We seek to view the whole world as one system, and work together to combat climate change. Also Chinese medicine is a long-term cure that promotes the enhancement of overall wellness rather than a quick fix.
So we set up a stand decorated as the traditional Chinese Medicine doctor stand and designed a two-meter high thermometer. At every hour, the temperature was raised one degree Celsius, and one living creature (we had our team members dressed up as pandas, monkeys, elephants etc. ) perished and had to be taken away by the devil. We also gave a diagnosed prescription that addressed issues and actions regarding climate change to each 'patient'. We sincerely hope our participants can take actions NOW before it is too late.
Campaign Three: Join in the March, Because There is 'No Planet B'
Dec. 12th was the Global Climate Action Day in Copenhagen. Thousands of similar activities were held worldwide to echo the same message. About 100,000 environmental activists representing 515 environmental NGOs from 67 countries descended on downtown Copenhagen to call for "climate justice".
This was the first time the China youth delegation became part of the people, holding a banner and shouting slogans. We, together with the other demonstrators, hoped to wake up people’s awareness on climate change issues. Every bit of public education can contribute to promoting fundamental changes in society. Ordinary people must change their lifestyles for the planet because there is “No Planet B”.
Due to limitations on the entrance of NGOs into Bella Center, we had to cancel some planned activities in the second week of COP 15. For example, we were supposed to have our “wish tree” campaign, inviting people to write up their climate wishes and put it up in the tree on Dec. 16th, the last day NGOs could get into Bella Center. But people could no longer be satisfied with this type of mild and even poetic way of expressing ourselves on that day. However, we tried our best, and we have no regrets.
[Photos of Huang Jing's group in Copenhagen are posted at: http://www.globalenvironmentallaw.com. Click on "Huang Jing" at the top of the welcoming page].
Sunday, December 20, 2009
Copenhagen Accord (by Bob Percival)
The Copenhagen conference has now concluded, after extending past its anticipated closing on Friday night into mid-afternoon on Saturday. A total of 193 countries and 119 heads of state participated in the conference, including President Obama who made the most of his brief time in Copenhagen by inserting himself into a meeting with the leaders of China, Brazil, India and South Africa. The result was what has been dubbed “The Copenhagen Accord,” an agreement between the U.S. and leaders of these rapidly developing countries that was applauded by most, but not all of the other countries. In the face of objections from Venezuela, Cuba, Bolivia and other countries, the Conference of the Parties simply “noted” the Copenhagen Accord, rather than adopting it.
On Saturday I was interviewed by a Chinese reporter who asked for my reactions to what happened at the Copenhagen conference. This is how I responded:
“I think the Copenhagen conference reflected changing global political realities. China, Brazil and India are now vitally important because of their rapidly growing economies. Their interests no longer are entirely congruent with the rest of the G-77 developing countries. President Obama's direct negotiations with their leaders on the final evening of the conference reflected these realities and produced a result - the Copenhagen Accord.
The final deal is not surprising in light of the diminished expectations that prevailed before the conference due to the lack of progress toward a legally binding deal at the various meetings that took place over the past year. The conference did serve to smoke out more details on what important countries are willing to do, tempered by domestic political realities.
Perhaps the best that can be said is that the conference was not a failure. Virtually all 193 nations agreed that climate change represents a global crisis that demands fundamental changes in the world's energy infrastructure. The failure to produce a legally binding document mandating these changes reflects another global political reality - international law is moving away from multilateral consensus agreements due to the lack of a global enforcement infrastructure. What is developing instead is a kind of "global law" where countries borrow law from one another and a few principal approaches to common problems emerge.
Everyone understands the inadequacy of the commitments that were announced in Copenhagen. This understanding itself is a positive development even if the failure to achieve more dramatic emission reduction commitments was disappointing. As the damaging effects of climate change become more visible in coming years, domestic political support for more dramatic action is likely to grow in many countries. It will not be a legally-binding, international treaty that stimulates the shift to an alternative global energy infrastructure, but rather the growing realization that it is in every country's interest to mandate such action.”
A copy of the Copenhagen Accord is available online at: http://unfcc.int/2860.php.
On Saturday I was interviewed by a Chinese reporter who asked for my reactions to what happened at the Copenhagen conference. This is how I responded:
“I think the Copenhagen conference reflected changing global political realities. China, Brazil and India are now vitally important because of their rapidly growing economies. Their interests no longer are entirely congruent with the rest of the G-77 developing countries. President Obama's direct negotiations with their leaders on the final evening of the conference reflected these realities and produced a result - the Copenhagen Accord.
The final deal is not surprising in light of the diminished expectations that prevailed before the conference due to the lack of progress toward a legally binding deal at the various meetings that took place over the past year. The conference did serve to smoke out more details on what important countries are willing to do, tempered by domestic political realities.
Perhaps the best that can be said is that the conference was not a failure. Virtually all 193 nations agreed that climate change represents a global crisis that demands fundamental changes in the world's energy infrastructure. The failure to produce a legally binding document mandating these changes reflects another global political reality - international law is moving away from multilateral consensus agreements due to the lack of a global enforcement infrastructure. What is developing instead is a kind of "global law" where countries borrow law from one another and a few principal approaches to common problems emerge.
Everyone understands the inadequacy of the commitments that were announced in Copenhagen. This understanding itself is a positive development even if the failure to achieve more dramatic emission reduction commitments was disappointing. As the damaging effects of climate change become more visible in coming years, domestic political support for more dramatic action is likely to grow in many countries. It will not be a legally-binding, international treaty that stimulates the shift to an alternative global energy infrastructure, but rather the growing realization that it is in every country's interest to mandate such action.”
A copy of the Copenhagen Accord is available online at: http://unfcc.int/2860.php.
Wednesday, December 16, 2009
Climate of Change Observations (Guest Post from Copenhagen by Elizabeth Burleson)
The peacefully permitted protest scheduled to start at Taarnby Station and walk to the Bella Center had yet to impact ingress and egress to the proceedings when I reached the Bella Center by 7:30 this morning. I was able to go right in. Many country delegates spent the night in the center as negotiations went around the clock. The RINGOS (Research and Independent Non-governmental Organizations) quickly filled a large conference room to negotiate the distribution of remaining passes into the conference. Process rather than substantive treaty language has consumed many delegation’s time and energy. The RINGOS gave passes out to those who had been attending RINGO meetings.
I find myself saddened by the development of civil society splintering into RINGOS, BINGOS, ENGOS, etc. Scarce resources certainly lead to conflict, be it access to a seat at the negotiating table or to adequate water, energy, and stable climate. By mid morning a coalition of delegates within the Bella Center marched outside in solidarity with the 4000 individuals gathered at the gate seeking participation in the proceedings.
As a National Wildlife Federation Delegate, I joined the Climate Action Network (CAN) REDD meeting to assess the latest Cop Decision text on forestry. We agreed upon general recommendations regarding remaining bracketed language that should be removed from the text and discussed who could share these recommendations on the ministerial level. I was able to do so with Senator Kerry. His speech raised spirits and set a progressive tone. I also thought highly of the UN panel discussion on climate displacement and the CAN panel discussion on US energy policy, an issue that has involved greater political bipartisanship of late than climate legislative efforts.
Passing members of the press who were editing footage of the morning's demonstrations on their laptops was sobering. Delegates tried to keep each other informed as to what was occurring outside. Public transport to and from the Bella Center was suspended for part of the day as demonstrations in the City Center and outside the Bella Center sought to impact the proceedings. The deliberative process at the ministerial level inched along, weighed down by domestic political realities of respective representatives.
IUCN held a reception and dinner in the elephant house of the Copenhagen Zoo - symbolic on several levels. An old legend tells of five blind men who come upon an elephant. Touching it's side, the first concluded that an elephant is like a wall. Feeling it's tusk, the second decided that an elephant is like a spear. Grasping it's trunk, the third insisted that an elephant is like a snake while the fourth felt the Elephant's leg and knew that an elephant is like a tree. The fifth man held the elephant's tail and said that an elephant is like a rope.
The lesson that I take away from this timeless story is that collective understanding can transcend confusion and can facilitate cooperation.
I find myself saddened by the development of civil society splintering into RINGOS, BINGOS, ENGOS, etc. Scarce resources certainly lead to conflict, be it access to a seat at the negotiating table or to adequate water, energy, and stable climate. By mid morning a coalition of delegates within the Bella Center marched outside in solidarity with the 4000 individuals gathered at the gate seeking participation in the proceedings.
As a National Wildlife Federation Delegate, I joined the Climate Action Network (CAN) REDD meeting to assess the latest Cop Decision text on forestry. We agreed upon general recommendations regarding remaining bracketed language that should be removed from the text and discussed who could share these recommendations on the ministerial level. I was able to do so with Senator Kerry. His speech raised spirits and set a progressive tone. I also thought highly of the UN panel discussion on climate displacement and the CAN panel discussion on US energy policy, an issue that has involved greater political bipartisanship of late than climate legislative efforts.
Passing members of the press who were editing footage of the morning's demonstrations on their laptops was sobering. Delegates tried to keep each other informed as to what was occurring outside. Public transport to and from the Bella Center was suspended for part of the day as demonstrations in the City Center and outside the Bella Center sought to impact the proceedings. The deliberative process at the ministerial level inched along, weighed down by domestic political realities of respective representatives.
IUCN held a reception and dinner in the elephant house of the Copenhagen Zoo - symbolic on several levels. An old legend tells of five blind men who come upon an elephant. Touching it's side, the first concluded that an elephant is like a wall. Feeling it's tusk, the second decided that an elephant is like a spear. Grasping it's trunk, the third insisted that an elephant is like a snake while the fourth felt the Elephant's leg and knew that an elephant is like a tree. The fifth man held the elephant's tail and said that an elephant is like a rope.
The lesson that I take away from this timeless story is that collective understanding can transcend confusion and can facilitate cooperation.
Tuesday, December 15, 2009
Observations from COP-15 (by Guest Blogger Elizabeth Burleson)
[Elizabeth Burleson is an environmental law professor from the University of South Dakota School of Law. For more information about her go to http://www.globalenvironmentallaw.com and click on "Burleson" on the opening page.]
I hit the decks running at Cop 15 heading into meetings with no sleep straight from the airport. The World Resource Institute provided an excellent framework for the finance debate between creating new institutions to distribute resources versus employing existing international institutions. Former US Congressman Dick Ottinger and I followed this with a lunch and briefing by the Climate and Energy Funders Group. Together with the Climate Action Network, delegates from a number of foundations (ranging from Rockefeller to Doris Duke) pooled collective understanding on how to effectively finance climate mitigation, adaptation, and innovation collaboration on environmentally sound technology. Forest Day events gathered stakeholders and decision-makers on REDD (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries). I met with a diverse range of United Nations representatives, scientists, economists, academics, and civil society non-governmental delegates. I found this forum to be an incubator of transnational cooperation. Dinner with the Climate and Energy Funders Group led to several great conversations on implementing the Bali Action Plan (1. Mitigation, 2. Adaptation, 3. Technology Transfer and 4. Financing). Having walked roughly 10 miles and stayed up until 2 am to respond to my delegation listserv and an array of Cop email, I felt in a daze arriving at the Bella Center before dawn. It was worth it however for the 20 minute wait to clear security as the lines left many delegates waiting in freezing temperatures for hours. My National Wildlife Federation delegation reported that many left when tensions grew. On the inside of the Bella Center, delegates rushed to find 8 am briefing meetings. A Chinese youth delegate happily shared his perspective on the proceedings to date. Helping the United Nations Environmental Program with their booth and side event materials on adaptation, I had the chance to talk one on one with over 50 country delegates, NGO representatives, and a general cross section of Cop 15 participants.
As a USD law professor teaching and researching climate, water, energy, and good governance, I brainstormed with graduate students that approached the UNEP booth interested in pursuing careers that encompassed climate. They shared their observations on the impact that civil society was having on the international climate proceedings and on the cooperation occurring between public private players. I shared my UN involvement from pre-Rio through Copenhagen including findings as a co-author of a UNEP book entitled GREENING WATER LAW. United Nations observers shared their understanding of Cop developments and coordinated joint side event logistics on core themes. My favorite meeting of the day involved UNEP representatives and several scientists strategizing on environmentally sound battery technology options for the future. Many country delegates stopped by for UNEP materials and to debrief after the Monday interruption of proceedings. I spoke with at least 10 African country delegations regarding their hopes for renewed consensus building.
I helped the National Wildlife Federation put on a side event on Amazonian Forestry issues, coordinating participation by a Brazilian governor (who navigated the long lines into the conference just in time for the presentation). As part of the National Wildlife delegation, Larry was able to obtain entrance into Al Gore’s organization’s new film “Climate of Change.” Gore personally gave an inspiring introduction to the film. Having worked with him at COP IV to the Rio Conference in 1992, I was heartened to see him at the core of bringing civil society into meaningful participation with international decision-makers. We stand at a cross-roads. As a UNICEF delegate to the Bali Climate Conference, I had a heightened sense of the urgency of agreeing upon a shared vision in an inclusive process. Good governance encompasses transparency, representation, and public participation. Efficiency and Equity can both be achieved here in Copenhagen with the requisite trust and political will.
In the mid afternoon on Monday Dec. 14, I witnessed the central hall of the Bella Center become the venue for a blue rain poncho clad intervention by civil society supporting Africa. Roughly 60 people began yelling “We stand with Africa, Kyoto Targets Now.” They held signs that reiterated these statements and were soon surrounded by cameras as the entire hall filled with thousands of participants stopped to take note. It remained orderly and did not take on the level of tension of the participants unable to enter the Bella Center. Yet, many NGO delegates were critical of the handling of public participation. Up to 100,000 individuals marched on Saturday in support of international cooperation on climate change. Amnesty International condemned leaving people bound for 4 hours forced to sit on city streets in freezing temperatures, arresting nearly 1000 and then releasing all but a handful). The general sense was that responding to a few brick throwers should not risk the safety and civil rights of civil society at large. Many delegates are now torn between trying to attend Bella Center proceedings and risking unrest as rumors circulate that protests might hinder access at the venue. All non-governmental delegations have been required to reduce their delegations by two thirds. Some delegations are coordinating via Skype meetings while others are shifting their focus to Klimaforum09 events.
As I write on Tuesday Dec. 15th, I am able to watch snow flurries swirling around Tivoli’s roller coaster rides, while helicopters circle above. I can hear people yelling and sirens calling. Local warning systems are needed the world over to provide accurate advice for people on the streets as natural or political events unfold. I am suppressing a foreboding, as someone who could watch the smoke from the towers on 9/11 and listen to days of hovering helicopters. I remain optimistic that light will shine through these short days in Copenhagen and together the international community will find peaceful middle ground that effectively responds to our collective climate change challenge.
I hit the decks running at Cop 15 heading into meetings with no sleep straight from the airport. The World Resource Institute provided an excellent framework for the finance debate between creating new institutions to distribute resources versus employing existing international institutions. Former US Congressman Dick Ottinger and I followed this with a lunch and briefing by the Climate and Energy Funders Group. Together with the Climate Action Network, delegates from a number of foundations (ranging from Rockefeller to Doris Duke) pooled collective understanding on how to effectively finance climate mitigation, adaptation, and innovation collaboration on environmentally sound technology. Forest Day events gathered stakeholders and decision-makers on REDD (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries). I met with a diverse range of United Nations representatives, scientists, economists, academics, and civil society non-governmental delegates. I found this forum to be an incubator of transnational cooperation. Dinner with the Climate and Energy Funders Group led to several great conversations on implementing the Bali Action Plan (1. Mitigation, 2. Adaptation, 3. Technology Transfer and 4. Financing). Having walked roughly 10 miles and stayed up until 2 am to respond to my delegation listserv and an array of Cop email, I felt in a daze arriving at the Bella Center before dawn. It was worth it however for the 20 minute wait to clear security as the lines left many delegates waiting in freezing temperatures for hours. My National Wildlife Federation delegation reported that many left when tensions grew. On the inside of the Bella Center, delegates rushed to find 8 am briefing meetings. A Chinese youth delegate happily shared his perspective on the proceedings to date. Helping the United Nations Environmental Program with their booth and side event materials on adaptation, I had the chance to talk one on one with over 50 country delegates, NGO representatives, and a general cross section of Cop 15 participants.
As a USD law professor teaching and researching climate, water, energy, and good governance, I brainstormed with graduate students that approached the UNEP booth interested in pursuing careers that encompassed climate. They shared their observations on the impact that civil society was having on the international climate proceedings and on the cooperation occurring between public private players. I shared my UN involvement from pre-Rio through Copenhagen including findings as a co-author of a UNEP book entitled GREENING WATER LAW. United Nations observers shared their understanding of Cop developments and coordinated joint side event logistics on core themes. My favorite meeting of the day involved UNEP representatives and several scientists strategizing on environmentally sound battery technology options for the future. Many country delegates stopped by for UNEP materials and to debrief after the Monday interruption of proceedings. I spoke with at least 10 African country delegations regarding their hopes for renewed consensus building.
I helped the National Wildlife Federation put on a side event on Amazonian Forestry issues, coordinating participation by a Brazilian governor (who navigated the long lines into the conference just in time for the presentation). As part of the National Wildlife delegation, Larry was able to obtain entrance into Al Gore’s organization’s new film “Climate of Change.” Gore personally gave an inspiring introduction to the film. Having worked with him at COP IV to the Rio Conference in 1992, I was heartened to see him at the core of bringing civil society into meaningful participation with international decision-makers. We stand at a cross-roads. As a UNICEF delegate to the Bali Climate Conference, I had a heightened sense of the urgency of agreeing upon a shared vision in an inclusive process. Good governance encompasses transparency, representation, and public participation. Efficiency and Equity can both be achieved here in Copenhagen with the requisite trust and political will.
In the mid afternoon on Monday Dec. 14, I witnessed the central hall of the Bella Center become the venue for a blue rain poncho clad intervention by civil society supporting Africa. Roughly 60 people began yelling “We stand with Africa, Kyoto Targets Now.” They held signs that reiterated these statements and were soon surrounded by cameras as the entire hall filled with thousands of participants stopped to take note. It remained orderly and did not take on the level of tension of the participants unable to enter the Bella Center. Yet, many NGO delegates were critical of the handling of public participation. Up to 100,000 individuals marched on Saturday in support of international cooperation on climate change. Amnesty International condemned leaving people bound for 4 hours forced to sit on city streets in freezing temperatures, arresting nearly 1000 and then releasing all but a handful). The general sense was that responding to a few brick throwers should not risk the safety and civil rights of civil society at large. Many delegates are now torn between trying to attend Bella Center proceedings and risking unrest as rumors circulate that protests might hinder access at the venue. All non-governmental delegations have been required to reduce their delegations by two thirds. Some delegations are coordinating via Skype meetings while others are shifting their focus to Klimaforum09 events.
As I write on Tuesday Dec. 15th, I am able to watch snow flurries swirling around Tivoli’s roller coaster rides, while helicopters circle above. I can hear people yelling and sirens calling. Local warning systems are needed the world over to provide accurate advice for people on the streets as natural or political events unfold. I am suppressing a foreboding, as someone who could watch the smoke from the towers on 9/11 and listen to days of hovering helicopters. I remain optimistic that light will shine through these short days in Copenhagen and together the international community will find peaceful middle ground that effectively responds to our collective climate change challenge.
Monday, December 14, 2009
Jordan Trip, Copenhagen Conference (by Bob Percival)
I returned to the United States on Saturday after spending a productive and enjoyable week in Jordan. The purpose of my trip was to assist in developing an environmental law curriculum for Jordanian law schools. At present only two environmental law courses are being taught in Jordan - an introductory environmental law course at Yarmouk University and an international environmental law course at Amman University -- and there are few course materials on the subject available in Arabic. In order to help jump start the teaching of environmental law, it has been decided that an environmental law problem will be the subject for the annual Jordanian National Law School Moot Court competition. The competition has become extremely popular among the Jordanian law schools and competition is fierce. On Monday afternoon I met with law professors from seven Jordanian law schools who responded positively to the idea of using an environmental topic for the 2010 competition after three consecutive years of using commercial law topics.
On Monday morning we attended the opening session of an Environmental Litigation Training Workshop that U.S. EPA was conducting for Jordanian judges. I spoke briefly with EPA Chief Administrative Law Judge Susan Biro, James McDonald, director of management for EPA’s Office of Administrative Law Judges, and Timothy Epp, counsel to EPA’s Environmental Appeals Board. Adnan Zawahreh, director of the inspectorate for Jordan's Ministry of Environment showed a video of himself uncovering a secret pipe that had been concealed underneath another pipeline in order to hide pollution violations. After being caught red handed the company needed two more warnings before agreeing to come into compliance. Mr. Adnan explained the importance of using videos to document environmental violations.
On Tuesday morning December 8 I met with Yehya Khaled, Director General of the Royal Society for the Conservation of Nature (RSCN), and Chris Johnson, director of Wild Jordan, at the RSCN offices in Amman. Their groups are NGOs who have been given responsibility by the Jordanian government for managing the country's six protected areas. They discussed the difficulties of enforcing the country's relatively good laws governing protected areas and local resistance to land use planning regulations. Wild Jordan, which is a subsidiary of the RSCN, emphasizes the importance of melding environmental protection efforts with the economic needs of local communities, something they are doing by promoting eco-tourism. RSCN and Wild Jordan are starting their own school that will be used to train the Royal Rangers, the country's environmental police, and they plan to locate it in an abandoned quarry.
On Tuesday morning I also visited the University of Jordan where I met George Hazboun, the dean of the law school, and several other law professors. I then had lunch at the Hotel Intercontinental with Jordanian Justice Minister Ayman Oodeh, Minister of Environment Khaled Irani, Lawrence Mandel, Deputy Chief of Mission for the U.S. Embassy, and officials from U.S. AID. Comparing notes on environmental disputes in the U.S. and Jordan, I mentioned the Stop the Beach litigation that was just argued in the U.S. Supreme Court. It turns out that Jordan has a slightly different issue concerning the shrinking Dead Sea where structures initially built near the water are now located far away from the water’s edge.
On Wednesday I gave a lecture on environmental law at Yarmouk University in the town of Irbid, Jordan, near the Syrian border. The university has 32,000 students with more than 700 students in the law school. Law school dean Ayman Masadeh remembered me from his visit to the University of Maryland School of Law last spring. Yarmouk is the only school trying to teach introductory environmental law and the professor who is doing so, who is from Iraqi, discussed whether the U.S. military could be held liable for environmental damage in his home country.
On Wednesday night I had dinner with the group of judges who are on the board of the Arab Council for Judicial Legal Studies. These included the president of Lebanon's appellate court, a Supreme Court Justice from the Palestinian Territories, and judges from Morocco and Algeria. I learned that King Abdullah had fired the Jordanian prime minister and dissolved the cabinet so that both the Environment Minister and Justice Minister I had lunch with the day before were no longer in office, at least temporarily, until a new cabinet is formed.
On Thursday morning December 10 I gave a lecture on environmental law at Philadelphia University, a private university with 6,000 students located in the town of Ayn al Basha al Badida. Following the lecture there was a spirited question and answer session that included a question by a student who asked whether the U.S. military could be held liable for environmental damage in Iraq. I showed brief clips of some of the most recent environmental law films my students at Maryland had made and one of the professors indicated that he would be interested in having his students experiment with making environmental films. The Jordanian Ministry of the Environment is planning to host a film competition next year that will include a category for student films.
On Thursday afternoon I made a presentation on “The Emergence of Global Environmental Law” to a small but select audience of lawyers at the King Hussein Club in downtown Amman. The group included Judge Abdullah, the Jordanian judge most interested in environmental law, and Adnan Zawahreh, director of the inspectorate for Jordan's Ministry of Environment. After my presentation we had a really wide ranging discussion of developments in environmental law in different parts of the world. The audience seemed particularly interested in my experience in China.
Photos of my trip to Jordan are available online at: http://gallery.me.com/rperci/100629.
Meanwhile the Copenhagen conference continues. For guest blog reports from some of my friends who are attending the conference, go to www.globalenvironmentallaw.com and click on “Huang Jing” and “Miller” at the top of the opening page.
On Monday morning we attended the opening session of an Environmental Litigation Training Workshop that U.S. EPA was conducting for Jordanian judges. I spoke briefly with EPA Chief Administrative Law Judge Susan Biro, James McDonald, director of management for EPA’s Office of Administrative Law Judges, and Timothy Epp, counsel to EPA’s Environmental Appeals Board. Adnan Zawahreh, director of the inspectorate for Jordan's Ministry of Environment showed a video of himself uncovering a secret pipe that had been concealed underneath another pipeline in order to hide pollution violations. After being caught red handed the company needed two more warnings before agreeing to come into compliance. Mr. Adnan explained the importance of using videos to document environmental violations.
On Tuesday morning December 8 I met with Yehya Khaled, Director General of the Royal Society for the Conservation of Nature (RSCN), and Chris Johnson, director of Wild Jordan, at the RSCN offices in Amman. Their groups are NGOs who have been given responsibility by the Jordanian government for managing the country's six protected areas. They discussed the difficulties of enforcing the country's relatively good laws governing protected areas and local resistance to land use planning regulations. Wild Jordan, which is a subsidiary of the RSCN, emphasizes the importance of melding environmental protection efforts with the economic needs of local communities, something they are doing by promoting eco-tourism. RSCN and Wild Jordan are starting their own school that will be used to train the Royal Rangers, the country's environmental police, and they plan to locate it in an abandoned quarry.
On Tuesday morning I also visited the University of Jordan where I met George Hazboun, the dean of the law school, and several other law professors. I then had lunch at the Hotel Intercontinental with Jordanian Justice Minister Ayman Oodeh, Minister of Environment Khaled Irani, Lawrence Mandel, Deputy Chief of Mission for the U.S. Embassy, and officials from U.S. AID. Comparing notes on environmental disputes in the U.S. and Jordan, I mentioned the Stop the Beach litigation that was just argued in the U.S. Supreme Court. It turns out that Jordan has a slightly different issue concerning the shrinking Dead Sea where structures initially built near the water are now located far away from the water’s edge.
On Wednesday I gave a lecture on environmental law at Yarmouk University in the town of Irbid, Jordan, near the Syrian border. The university has 32,000 students with more than 700 students in the law school. Law school dean Ayman Masadeh remembered me from his visit to the University of Maryland School of Law last spring. Yarmouk is the only school trying to teach introductory environmental law and the professor who is doing so, who is from Iraqi, discussed whether the U.S. military could be held liable for environmental damage in his home country.
On Wednesday night I had dinner with the group of judges who are on the board of the Arab Council for Judicial Legal Studies. These included the president of Lebanon's appellate court, a Supreme Court Justice from the Palestinian Territories, and judges from Morocco and Algeria. I learned that King Abdullah had fired the Jordanian prime minister and dissolved the cabinet so that both the Environment Minister and Justice Minister I had lunch with the day before were no longer in office, at least temporarily, until a new cabinet is formed.
On Thursday morning December 10 I gave a lecture on environmental law at Philadelphia University, a private university with 6,000 students located in the town of Ayn al Basha al Badida. Following the lecture there was a spirited question and answer session that included a question by a student who asked whether the U.S. military could be held liable for environmental damage in Iraq. I showed brief clips of some of the most recent environmental law films my students at Maryland had made and one of the professors indicated that he would be interested in having his students experiment with making environmental films. The Jordanian Ministry of the Environment is planning to host a film competition next year that will include a category for student films.
On Thursday afternoon I made a presentation on “The Emergence of Global Environmental Law” to a small but select audience of lawyers at the King Hussein Club in downtown Amman. The group included Judge Abdullah, the Jordanian judge most interested in environmental law, and Adnan Zawahreh, director of the inspectorate for Jordan's Ministry of Environment. After my presentation we had a really wide ranging discussion of developments in environmental law in different parts of the world. The audience seemed particularly interested in my experience in China.
Photos of my trip to Jordan are available online at: http://gallery.me.com/rperci/100629.
Meanwhile the Copenhagen conference continues. For guest blog reports from some of my friends who are attending the conference, go to www.globalenvironmentallaw.com and click on “Huang Jing” and “Miller” at the top of the opening page.
Guest Blog Post from Copenhagen Conference from Huang Jing (China Youth Climate Action Network)
December 13, 2009: Two months ago, I learned from the CYCAN (China Youth Climate Action Network) website that Chinese Youth would form a delegation to go to Copenhagen to attend the COP-15. I got very excited about this precious opportunity.
In the next two months, I applied for the selection process, got interviewed by the selection committee, attended a training workshop by Chinese experts, participated in the preliminary group meetings, and made fundraising efforts for the group with my teammate.
Finally, we successfully formed the 1st Chinese Youth Delegation which contains 40 young Chinese leaders. We represent a nation that makes up one-fifth of humanity, and a youth population of 400 million people. Our main missions are to represent China’s Youth Commitment to a Low Carbon Future and to set a precedent of Chinese Youth engagement on important international issues. To this end, we plan to organize various campaigns with one theme called “no other way but now”. We also set up our own blogs, the Chinese blog can be viewed at http://chinayouthcop15.blog.sohu.com/ and the English blog is located at http://chinayouthcop15.blogspot.com/ . You can also see the small bilingual bios of each member of our delegation from this link http://green.sohu.com/s2009/6945/s268376734/.
In the following two weeks, we have divided into three teams to conduct our activities: a policy team, a communications team and a campaign team. The policy team will focus on the negotiations in COP-15. The communications team is responsible for contact with international and domestic media while the campaign team will launch many interesting youth campaign activities both inside and outside the Bella Center.
There is No Other Way but act NOW!
[For more photos of Huang Jing in Copenhagen go to http://www.globalenvironmentallaw.com and click on "Huang Jing" at the top of the opening page.]
In the next two months, I applied for the selection process, got interviewed by the selection committee, attended a training workshop by Chinese experts, participated in the preliminary group meetings, and made fundraising efforts for the group with my teammate.
Finally, we successfully formed the 1st Chinese Youth Delegation which contains 40 young Chinese leaders. We represent a nation that makes up one-fifth of humanity, and a youth population of 400 million people. Our main missions are to represent China’s Youth Commitment to a Low Carbon Future and to set a precedent of Chinese Youth engagement on important international issues. To this end, we plan to organize various campaigns with one theme called “no other way but now”. We also set up our own blogs, the Chinese blog can be viewed at http://chinayouthcop15.blog.sohu.com/ and the English blog is located at http://chinayouthcop15.blogspot.com/ . You can also see the small bilingual bios of each member of our delegation from this link http://green.sohu.com/s2009/6945/s268376734/.
In the following two weeks, we have divided into three teams to conduct our activities: a policy team, a communications team and a campaign team. The policy team will focus on the negotiations in COP-15. The communications team is responsible for contact with international and domestic media while the campaign team will launch many interesting youth campaign activities both inside and outside the Bella Center.
There is No Other Way but act NOW!
[For more photos of Huang Jing in Copenhagen go to http://www.globalenvironmentallaw.com and click on "Huang Jing" at the top of the opening page.]
Thursday, December 10, 2009
Copenhagen Conference Guest Blog by Alan Miller
Here is the first guest blog post from the Copenhagen climate negotiations from guest blogger Alan Miller, principal climate change specialist for the Environment Department of the International Finance Corporation. For more information on Alan Miller go to www.globalenvironmentallaw.com and click on "Miller" at the top of the welcoming page.
Thurs. Dec. 11: Observations from the Copenhagen Climate Negotiations (COP15) (by Alan Miller)
For an old climate hand – my experience in climate negotiations goes back before the Rio Conference to early “90s – I tend to think I’ve seen it all. The Copenhagen meetings have upped the ante in several ways. The sheer numbers are daunting, an estimated 20,000 registered delegates, observers, and media from over 150 countries. The logistics of entry every morning resemble a crowded airport as we all descend on the dozen or so security lines. Inside a small town awaits, with cafes (open faced sandwiches appealing), dozens of exhibits, colorful attire from traditional garbs of developing countries, and hundreds of NGOs and special interest organizations from every perspective – religious, gender, youth, indigenous peoples, and justice. Some groups are clearly here for the first time -- for example, a Chinese business organization – and are understandably overwhelmed and confused by the experience. As an American it’s great to see the U.S. with a strong presence including a small theater where the EPA Administrator and many other federal officials give presentations every afternoon.
One of the most enjoyable features of the conference is the presence of large numbers of energetic teenagers sponsored by Greenpeace and other organizations. Some wonder around in green paint and space alien attire asking random passers-by to “take me to your climate leader”. Others appeared in pajamas with pillows and sang “Give Peace a Chance” on the anniversary of the “sleep-in” by John Lennon and Yoko Ono.
The Danish organizers have done an impressive job in managing the crowds but also maintaining an environmental ethos. Recycling bins are everywhere. All delegates get free public transportation and have access to free bicycles for commuting (the conference site is several miles from the city center but next to a metro stop). Climate-change related art and culture events dot the town, from concerts (the Back Street Boys) to 8 meter cubes representing the volume taken by a ton of carbon dioxide.
Of course the main event – almost hidden in the noise – are the negotiations themselves. A sense of optimism pervades the halls based on next week’s arrival of an expected 110+ heads of state. President Obama’s appearance alone generates great expectations, something we associate with American politics but which turns out to be equally true of people from most of the world. The first week is dominated by career negotiators and more mundane matters, refining texts that have been under negotiation for the two years since the Bali Action Plan was adopted, removing brackets and consolidating competing options. One trend that continues to evolve is the seeming disintegration of the G77 and China, the bloc of developing countries who have traditionally negotiated as one. At the November climate meetings in Barcelona, the African countries walked out, halting negotiations for almost a day. This time it’s the small island states demanding discussion of more aggressive goals and threatening to disrupt the process.
As of today (Thursday morning) it doesn’t seem possible it can all come together in a week’s time. Yet I left yesterday with a strongly positive hearing after sitting at a small briefing for international organizations by Yvo de Boer, the Convention Executive Secretary. As he told us, heads of state “don’t come together to commiserate, only to celebrate”. Am hoping he’s proven correct.
Thurs. Dec. 11: Observations from the Copenhagen Climate Negotiations (COP15) (by Alan Miller)
For an old climate hand – my experience in climate negotiations goes back before the Rio Conference to early “90s – I tend to think I’ve seen it all. The Copenhagen meetings have upped the ante in several ways. The sheer numbers are daunting, an estimated 20,000 registered delegates, observers, and media from over 150 countries. The logistics of entry every morning resemble a crowded airport as we all descend on the dozen or so security lines. Inside a small town awaits, with cafes (open faced sandwiches appealing), dozens of exhibits, colorful attire from traditional garbs of developing countries, and hundreds of NGOs and special interest organizations from every perspective – religious, gender, youth, indigenous peoples, and justice. Some groups are clearly here for the first time -- for example, a Chinese business organization – and are understandably overwhelmed and confused by the experience. As an American it’s great to see the U.S. with a strong presence including a small theater where the EPA Administrator and many other federal officials give presentations every afternoon.
One of the most enjoyable features of the conference is the presence of large numbers of energetic teenagers sponsored by Greenpeace and other organizations. Some wonder around in green paint and space alien attire asking random passers-by to “take me to your climate leader”. Others appeared in pajamas with pillows and sang “Give Peace a Chance” on the anniversary of the “sleep-in” by John Lennon and Yoko Ono.
The Danish organizers have done an impressive job in managing the crowds but also maintaining an environmental ethos. Recycling bins are everywhere. All delegates get free public transportation and have access to free bicycles for commuting (the conference site is several miles from the city center but next to a metro stop). Climate-change related art and culture events dot the town, from concerts (the Back Street Boys) to 8 meter cubes representing the volume taken by a ton of carbon dioxide.
Of course the main event – almost hidden in the noise – are the negotiations themselves. A sense of optimism pervades the halls based on next week’s arrival of an expected 110+ heads of state. President Obama’s appearance alone generates great expectations, something we associate with American politics but which turns out to be equally true of people from most of the world. The first week is dominated by career negotiators and more mundane matters, refining texts that have been under negotiation for the two years since the Bali Action Plan was adopted, removing brackets and consolidating competing options. One trend that continues to evolve is the seeming disintegration of the G77 and China, the bloc of developing countries who have traditionally negotiated as one. At the November climate meetings in Barcelona, the African countries walked out, halting negotiations for almost a day. This time it’s the small island states demanding discussion of more aggressive goals and threatening to disrupt the process.
As of today (Thursday morning) it doesn’t seem possible it can all come together in a week’s time. Yet I left yesterday with a strongly positive hearing after sitting at a small briefing for international organizations by Yvo de Boer, the Convention Executive Secretary. As he told us, heads of state “don’t come together to commiserate, only to celebrate”. Am hoping he’s proven correct.
Sunday, December 6, 2009
Jordan Trip, Stop the Beach Argument, Thai Decision, Bhopal Anniversary, India Climate Plan & Copenhagen
I arrived in Amman, Jordan early this morning to assist the ABA’s Rule of Law Initiative in the development of environmental law courses for Jordanian law schools. This afternoon I met with Jordan’s Minister of Environment Khaled Irani in his office at the Ministry of Environment. Environmental law is developing rapidly in Jordan as illustrated by the fact that the Ministry of Environment now is responsible for administering 19 laws, including many that initially were not considered environmental laws. However, penalties for environmental violations remain very low and often do not recoup the economic benefit of noncompliance. Following the meeting with Minister Irani, I went to the Palace of Justice where I met with Judge Abdullah Abu Ghanem, the Jordanian judge who is most interested in developing environmental law training programs for the judiciary. With his assistance, officials from U.S. EPA’s Environmental Appeals Board and Office of Administrative Law Judges will start a three-day environmental law training course here tomorrow for Jordanian judges.
On Monday November 30 my Environmental Law class debuted this year’s group of environmental law films. A total of 13 films were produced by the students, the most ever. On Wednesday December 2 the class concluded the semester by going on a field trip to the U.S. Supreme Court to watch the oral argument in a fascinating property rights case challenging Florida’s efforts to protect eroding coastline. The case of Stop the Beach Renourishment v. Florida Department of Environmental Conservation involves a challenge to a Florida Supreme Court decision upholding a Florida law designed to facilitate state efforts to prevent beach erosion. A tiny group of property owners are arguing that the Florida court committed a “judicial taking” by abruptly reinterpreting Florida common law to not require the property line of owners of beachfront property always to extend to the water. Under the law the state acquires ownership of new land created by the state-funded replenishment program seaward of the prior property. Because he owns Florida beachfront property, Justice Stevens recused himself from the case and did not participate in the oral argument, raising the possibility that the decision below could be affirmed by an equally divided U.S. Supreme Court.
On Wednesday the Supreme Court of Thailand largely upheld an injunction that had been issued in September to stop construction of $12 billion worth of petrochemical and power projects for failure to perform full-blown environmental impact assessments. The court ruled that work on 65 of 76 projects planned for the Map Ta Phut industrial park near Bangkok had to be suspended pending the completion of adequate environmental impact reports. The court based its decision on a provision added to the Thai constitution in 2007 that subjects industrial development projects to environmental and health studies.
Thursday marked the 25th anniversary of the deadly chemical leak at a Unon Carbide plant in Bhopal, India that quickly killed thousands of nearby residents while permanently maiming tens of thousands. Tragically, the site has not been cleaned up and many continue to be exposed to chemical contamination there. After lawsuits filed against Union Carbide in the U.S. were dismissed, the company settled with the government of India for only $470 million, leaving survivors of the dead with an average compensation payment of $2,200 per victim. See Suketu Mehta, A Cloud Still Hangs Over Bhopal, N.Y. Times, Dec. 3, 2009, at A33 (http://www.nytimes.com/2009/12/03/opinion/03mehta.html).
With the start of the Copenhagen conference approaching, the Australian Senate narrowly defeated a compromise plan to create a cap-and-trade program to control the country’s emissions of greenhouse gases (GHGs). India announced that while it would continue to oppose any binding limits on its GHG emissions, it would seek to reduce the carbon intensity of its economy by 20 to 25% by the year 2020 compared with 2005 levels. The Indian government said it would propose legislation to impose fuel efficiency standards on all vehicles by December 2011 while urging lower levels of government to adopt green building codes. On Tuesday December 1 the Financial Times reported that Chinese wind farm projects have been suspended from receiving Clean Development Mechanism (CDM) grants while an investigation is undertaken to determine if the projects will result in genuine reductions in carbon emissions. Kathrin Hille, Geoff Dyer & Fiona Harvey, UN Halts Funds to China Wind Farms, Financial Times, Dec. 1, 2009 (http://www.ft.com/cms/s/0/128a52de-deaf-11de-adff-00144feab49a.html.) China has received nearly half of all CDM credits issued worldwide to date.
While I will not be among the 15,000 people attending the Copenhagen conference, I have arranged for four friends who will be there to serve as guest bloggers. They should present a diverse set of perspectives on the events taking place there. The four are: environmental law professor Betsy Burleson from the University of South Dakota, my former student Huang Jing from Beijing who will be attending as part of the China Youth Action Network, Alan Miller, principal climate change specialist in the Environment Department of the International FInance Corporation (http://beta.worldbank.org/people/miller), and my former student Yvette Pena-Lopes who is Legislative Affairs Director of the Blue-Green Alliance.
On Monday November 30 my Environmental Law class debuted this year’s group of environmental law films. A total of 13 films were produced by the students, the most ever. On Wednesday December 2 the class concluded the semester by going on a field trip to the U.S. Supreme Court to watch the oral argument in a fascinating property rights case challenging Florida’s efforts to protect eroding coastline. The case of Stop the Beach Renourishment v. Florida Department of Environmental Conservation involves a challenge to a Florida Supreme Court decision upholding a Florida law designed to facilitate state efforts to prevent beach erosion. A tiny group of property owners are arguing that the Florida court committed a “judicial taking” by abruptly reinterpreting Florida common law to not require the property line of owners of beachfront property always to extend to the water. Under the law the state acquires ownership of new land created by the state-funded replenishment program seaward of the prior property. Because he owns Florida beachfront property, Justice Stevens recused himself from the case and did not participate in the oral argument, raising the possibility that the decision below could be affirmed by an equally divided U.S. Supreme Court.
On Wednesday the Supreme Court of Thailand largely upheld an injunction that had been issued in September to stop construction of $12 billion worth of petrochemical and power projects for failure to perform full-blown environmental impact assessments. The court ruled that work on 65 of 76 projects planned for the Map Ta Phut industrial park near Bangkok had to be suspended pending the completion of adequate environmental impact reports. The court based its decision on a provision added to the Thai constitution in 2007 that subjects industrial development projects to environmental and health studies.
Thursday marked the 25th anniversary of the deadly chemical leak at a Unon Carbide plant in Bhopal, India that quickly killed thousands of nearby residents while permanently maiming tens of thousands. Tragically, the site has not been cleaned up and many continue to be exposed to chemical contamination there. After lawsuits filed against Union Carbide in the U.S. were dismissed, the company settled with the government of India for only $470 million, leaving survivors of the dead with an average compensation payment of $2,200 per victim. See Suketu Mehta, A Cloud Still Hangs Over Bhopal, N.Y. Times, Dec. 3, 2009, at A33 (http://www.nytimes.com/2009/12/03/opinion/03mehta.html).
With the start of the Copenhagen conference approaching, the Australian Senate narrowly defeated a compromise plan to create a cap-and-trade program to control the country’s emissions of greenhouse gases (GHGs). India announced that while it would continue to oppose any binding limits on its GHG emissions, it would seek to reduce the carbon intensity of its economy by 20 to 25% by the year 2020 compared with 2005 levels. The Indian government said it would propose legislation to impose fuel efficiency standards on all vehicles by December 2011 while urging lower levels of government to adopt green building codes. On Tuesday December 1 the Financial Times reported that Chinese wind farm projects have been suspended from receiving Clean Development Mechanism (CDM) grants while an investigation is undertaken to determine if the projects will result in genuine reductions in carbon emissions. Kathrin Hille, Geoff Dyer & Fiona Harvey, UN Halts Funds to China Wind Farms, Financial Times, Dec. 1, 2009 (http://www.ft.com/cms/s/0/128a52de-deaf-11de-adff-00144feab49a.html.) China has received nearly half of all CDM credits issued worldwide to date.
While I will not be among the 15,000 people attending the Copenhagen conference, I have arranged for four friends who will be there to serve as guest bloggers. They should present a diverse set of perspectives on the events taking place there. The four are: environmental law professor Betsy Burleson from the University of South Dakota, my former student Huang Jing from Beijing who will be attending as part of the China Youth Action Network, Alan Miller, principal climate change specialist in the Environment Department of the International FInance Corporation (http://beta.worldbank.org/people/miller), and my former student Yvette Pena-Lopes who is Legislative Affairs Director of the Blue-Green Alliance.
Sunday, November 29, 2009
Fox News Appearance, Australian Climate Legislation, U.S. & China Pre-Copenhagen Pledges & Remembering Tom Graff
On Monday November 23, I was quoted in an article in USA Today about climate change litigation in the wake of of the Fifth Circuit’s decision in the case of Comer v. Murphy Oil USA. After a widely-read conservative blogger attacked me on Tuesday for being quoted as saying that the litigation was “difficult”, I was invited to appear live on Fox Business News on Wednesday to discuss “green lawsuits”. I was interviewed from the Fox News studio in Washington by Stewart Varney, who was in New York. He apparently was not well-briefed on who I am because he accused me of being the inspiration for the lawsuits, which he claimed were mere “grandstanding” to undermine the political process. I noted that I was not involved in the litigation, but that throughout U.S. history citizens have turned to the courts when severe environmental problems emerged that were not being addressed by the regulatory system. He then bizarrely asserted that it was only my opinion that climate change had yet to be addressed by the regulatory system. Varney then argued that the U.S. should require unsuccessful plaintiffs to pay defendants’ attorneys fees (the English rule) in order to deter such “frivolous lawsuits” that clog the courts. I responded that more environmental lawsuits are brought by business interests seeking to reduce regulation than by environmentalists seeking to strengthen it and that our legal system is “the envy of the world,” as I well understand from my experience in China.
Watching the pre-Copenhagen debate it is striking how the climate change deniers have been trying to spin the purloined emails from the University of East Anglia and polls showing a decline in public support for cap-and-trade as somehow confirming that climate change does not exist. Actor Ben Stein, representing the deniers on CNN, claimed that they now represent the “truth lobby” rather than what James Carville called the “pollution lobby.” In light of the massive advertising campaign by opponents of GHG limits, a decline in public support for cap-and-trade is not surprising, but clear majorities in both political parties, and virtually all world leaders still acknowledge the importance of limiting GHG emissions.
Australia’s governing Labor party and the opposition Liberal party reached agreement this week on compromise legislation to cut GHG emissions by 25 percent from 2000 levels by the year 2020. The deal was accomplished through significant compromises, including exempting agriculture from GHG controls, nearly doubling the emissions allowances given for free to power companies, and increasing subsidies to industries (including the coal industry) perceived to be harmed by the legislation. While it remains unclear whether the legislation will win enactment right away (some Liberal senators are breaking with their party’s leadership and arguing that parliament should wait to see what happens in Copenhagen), the legislation includes a carbon tax commencing in 2011.
Both the U.S. and China revealed what they are willing to do to reduce their emissions of greenhouse gases (GHGs) prior to next week’s Copenhagen conference. In line with the Waxman/Markey bill that passed the House in June, President Obama announced on Wednesday that the U.S. would reduce its GHG emissions by 17 percent below 2005 levels by 2020. He also promised to attend part of the Copenhagen conference while on his way to Sweden to accept the Novel Peace Prize. China announced that Premier Wen Jiabao would attend the Copenhagen conference. While China did not pledge to reduce the absolute level of its GHG emissions, it announced that it would seek to reduce the “carbon intensity” of its economy (levels of CO2 emissions per unit of gross domestic product) by 40 to 45 percent by 2020. Both the U.S. and Chinese pledges were viewed by observers in glass-half-empty/glass-half-full terms. They represent progress in the sense that for the first time both nations - the two largest emitters of GHGs in the world - have made serious promises to the international community to start controlling their emissions. Yet they are disappointing to many environmentalists because they clearly are inadequate to achieve the global goal of containing global warming to no more than 2 degrees Celsius. People in the know in China report that the U.S. had proposed to the Chinese leadership that the two countries package their proposals together as part of a “G-2” effort to influence the Copenhagen negotiations, but that the Chinese insisted that any coordination should be done in the larger context of the G-20.
The growing partisan divide on climate change and other environmental issues makes one nostalgic for the days when groups like the Environmental Defense Fund (EDF), my former employer, were able to obtain high-level support from all parts of the ideological spectrum for aggressive environmental protection initiatives. EDF attorney Tom Graff, who died this month after a long battle with cancer, reveled in building diverse coalitions to support innovations in water management policy. Tom helped hire me to join EDF’s Berkeley office in 1981, though I never actually ended up there when the organization decided that it would be best for me to stay in D.C. due to the arrival of the Reagan administration. Even though his ideas often upset entrenched interests, Tom was someone who commanded enormous respect from everyone. He will be sorely missed by EDF, which has lost nearly all of its most experienced legal talent, and by the global environmental community.
Watching the pre-Copenhagen debate it is striking how the climate change deniers have been trying to spin the purloined emails from the University of East Anglia and polls showing a decline in public support for cap-and-trade as somehow confirming that climate change does not exist. Actor Ben Stein, representing the deniers on CNN, claimed that they now represent the “truth lobby” rather than what James Carville called the “pollution lobby.” In light of the massive advertising campaign by opponents of GHG limits, a decline in public support for cap-and-trade is not surprising, but clear majorities in both political parties, and virtually all world leaders still acknowledge the importance of limiting GHG emissions.
Australia’s governing Labor party and the opposition Liberal party reached agreement this week on compromise legislation to cut GHG emissions by 25 percent from 2000 levels by the year 2020. The deal was accomplished through significant compromises, including exempting agriculture from GHG controls, nearly doubling the emissions allowances given for free to power companies, and increasing subsidies to industries (including the coal industry) perceived to be harmed by the legislation. While it remains unclear whether the legislation will win enactment right away (some Liberal senators are breaking with their party’s leadership and arguing that parliament should wait to see what happens in Copenhagen), the legislation includes a carbon tax commencing in 2011.
Both the U.S. and China revealed what they are willing to do to reduce their emissions of greenhouse gases (GHGs) prior to next week’s Copenhagen conference. In line with the Waxman/Markey bill that passed the House in June, President Obama announced on Wednesday that the U.S. would reduce its GHG emissions by 17 percent below 2005 levels by 2020. He also promised to attend part of the Copenhagen conference while on his way to Sweden to accept the Novel Peace Prize. China announced that Premier Wen Jiabao would attend the Copenhagen conference. While China did not pledge to reduce the absolute level of its GHG emissions, it announced that it would seek to reduce the “carbon intensity” of its economy (levels of CO2 emissions per unit of gross domestic product) by 40 to 45 percent by 2020. Both the U.S. and Chinese pledges were viewed by observers in glass-half-empty/glass-half-full terms. They represent progress in the sense that for the first time both nations - the two largest emitters of GHGs in the world - have made serious promises to the international community to start controlling their emissions. Yet they are disappointing to many environmentalists because they clearly are inadequate to achieve the global goal of containing global warming to no more than 2 degrees Celsius. People in the know in China report that the U.S. had proposed to the Chinese leadership that the two countries package their proposals together as part of a “G-2” effort to influence the Copenhagen negotiations, but that the Chinese insisted that any coordination should be done in the larger context of the G-20.
The growing partisan divide on climate change and other environmental issues makes one nostalgic for the days when groups like the Environmental Defense Fund (EDF), my former employer, were able to obtain high-level support from all parts of the ideological spectrum for aggressive environmental protection initiatives. EDF attorney Tom Graff, who died this month after a long battle with cancer, reveled in building diverse coalitions to support innovations in water management policy. Tom helped hire me to join EDF’s Berkeley office in 1981, though I never actually ended up there when the organization decided that it would be best for me to stay in D.C. due to the arrival of the Reagan administration. Even though his ideas often upset entrenched interests, Tom was someone who commanded enormous respect from everyone. He will be sorely missed by EDF, which has lost nearly all of its most experienced legal talent, and by the global environmental community.
Tuesday, November 24, 2009
Houck Book, South Korea & Russia GHG Reductions, Jordan ABA Project & Visiting Chinese Delegation
On Monday morning November 16 I had breakfast with Professor Tseming Yang to discuss progress on our Global E On Monday morning November 16 I had breakfast with Professor Tseming Yang to discuss progress on our Global Environmental Law casebook. Tseming was in D.C. for the 100th anniversary of the Justice Department’s Environment and Natural Resources Division where he formerly worked. We are making good progress on the Global Environmental Law casebook with the complete manuscript due by April 1, 2010.
I am delighted that a new book that makes a major contribution to the growing literature on global environmental law has been published. The book is Tulane Professor Oliver Houck’s Taking Back Eden: Eight Environmental Cases that Changed the World. It is now available from Island Press. Professor Houck contacted me this week to compare notes on our parallel work on global environmental law. I mentioned to him that I had been one of the anonymous reviewers of his book manuscript for two different publishers to whom I enthusiastically recommended that the book be published. Professor Houck is a gifted writer and his book tells remarkable stories about courageous individuals who used law to tackle daunting environmental problems in several countries including the U.S., Russia, Japan, Chile, India and Greece. Information concerning how to order a copy of the book is available online at: http://www.islandpress.com/bookstore/details.php?prod_id=1918
Last week South Korea and Russia announced new plans to reduce their emissions of greenhouse gases (GHGs) prior to the start of next month’s Copenhagen Conference. On November 17 South Korea announced that it plans to reduce its emissions of greenhouse gases (GHGs) by 30 percent below uncontrolled levels by the year 2020, which will represent a 4 percent reduction over its 2005 emissions. At a summit between the EU and Russia in Stockholm Russian leaders offered to reduce their country’s GHG emissions by as much as 25 percent if other large countries agree to do the same.
At the end of next week I will be traveling to Jordan on a project for the American Bar Association’s Rule of Law Initiative. I will be assisting Jordanian law professors in the design of their environmental law curricula. In preparation for the trip to Jordan I met on Friday morning with lawyers from EPA’s Environmental Appeals Board who also will be in Jordan conducting an environmental law training course for Jordanian judges and law professors. On Sunday morning I had a conference call with the ABA staff in Jordan to discuss preparations for the trip.
On Saturday night I had a reunion with some of my former EDF colleagues at the home of NRDC scientist Linda Greer. She hosted a dinner party for a delegation of 14 visiting environmental professionals from China. The delegation included Chinese public health officials, scientists, lawyers and professors who are working to combat lead poisoning problems in China. As previously reported (see August & 30 postings) concern over lead poisoning has led to the temporary closure of some lead smelters in China. The group, which was led by Alex Wang from NRDC’s Beijing office, visited the St. Louis area and the Doe Run lead smelter in Herculaneum, Missouri as well as the excellent environmental law clinic at Washington University. They also came to Baltimore and visited the city health department to obtain information on how Baltimore has responded to lead poisoning problems.
I am delighted that a new book that makes a major contribution to the growing literature on global environmental law has been published. The book is Tulane Professor Oliver Houck’s Taking Back Eden: Eight Environmental Cases that Changed the World. It is now available from Island Press. Professor Houck contacted me this week to compare notes on our parallel work on global environmental law. I mentioned to him that I had been one of the anonymous reviewers of his book manuscript for two different publishers to whom I enthusiastically recommended that the book be published. Professor Houck is a gifted writer and his book tells remarkable stories about courageous individuals who used law to tackle daunting environmental problems in several countries including the U.S., Russia, Japan, Chile, India and Greece. Information concerning how to order a copy of the book is available online at: http://www.islandpress.com/bookstore/details.php?prod_id=1918
Last week South Korea and Russia announced new plans to reduce their emissions of greenhouse gases (GHGs) prior to the start of next month’s Copenhagen Conference. On November 17 South Korea announced that it plans to reduce its emissions of greenhouse gases (GHGs) by 30 percent below uncontrolled levels by the year 2020, which will represent a 4 percent reduction over its 2005 emissions. At a summit between the EU and Russia in Stockholm Russian leaders offered to reduce their country’s GHG emissions by as much as 25 percent if other large countries agree to do the same.
At the end of next week I will be traveling to Jordan on a project for the American Bar Association’s Rule of Law Initiative. I will be assisting Jordanian law professors in the design of their environmental law curricula. In preparation for the trip to Jordan I met on Friday morning with lawyers from EPA’s Environmental Appeals Board who also will be in Jordan conducting an environmental law training course for Jordanian judges and law professors. On Sunday morning I had a conference call with the ABA staff in Jordan to discuss preparations for the trip.
On Saturday night I had a reunion with some of my former EDF colleagues at the home of NRDC scientist Linda Greer. She hosted a dinner party for a delegation of 14 visiting environmental professionals from China. The delegation included Chinese public health officials, scientists, lawyers and professors who are working to combat lead poisoning problems in China. As previously reported (see August & 30 postings) concern over lead poisoning has led to the temporary closure of some lead smelters in China. The group, which was led by Alex Wang from NRDC’s Beijing office, visited the St. Louis area and the Doe Run lead smelter in Herculaneum, Missouri as well as the excellent environmental law clinic at Washington University. They also came to Baltimore and visited the city health department to obtain information on how Baltimore has responded to lead poisoning problems.
Sunday, November 15, 2009
Rethinking Copenhagen, Anti-Smoking Progress Stalls, Vieques Health Risks & Environmental Law Winetasting
Today at the Asian-Pacific Economic Cooperation summit in Singapore, President Obama agreed to a proposal by Lars Løkke Rasmussen, the prime minister of Denmark, to postpone seeking a new, legally-binding global treaty to reduce emissions of greenhouse gases (GHGs) at the Copenhagen climate conference next month. The decision reflects the reality that insufficient progress has been made in preliminary negotiating sessions, including one earlier this month in Barcelona, to prepare the way for a global consensus on a new treaty. Instead the participants in the Copenhagen summit will try to save face by announcing a “politically binding” consensus on GHG controls that will leave many difficult issues to be resolved in subsequent negotiations. Optimists are maintaining that this delay will enable the 192 nations participating in the negotiations to “get it right” rather than being pressured into hasty compromises at Copenhagen, which will be the 15th Conference of the Parties (COP-15) to the UN Framework Convention on Climate Change. The focus of efforts to negotiate a binding global agreement will now shift either to Mexico City, where COP-16 will be held in December 2010, or to an interim summit that may be scheduled for spring 2010.
Earlier in the week the International Energy Agency (IEA) had warned that carbon allowance prices must double from current levels in Europe by the year 2020 in order to facilitate a true transition to renewable energy alternatives. The IEA projected that allowance prices would have to reach $50 per ton by 2020 and $110/ton by 2030 in industrialized countries, and in developing countries $30/ton by 2020 and $50/on by 2030. On Friday Brazil pledged to cut its contribution to global warming and climate change by 36 percent below levels previously projected for 2020.
On Thursday the U.S. Centers for Disease Control announced that the steady decline in the percentage of U.S. adults who smoked had been slightly reversed in 2008. In the mid-1960s, 40% of U.S. adults smoked, a percentage that has been steadily declining since then and that CDC had hoped to reduce to 12% by the year 2010. However, in 2008, 20.6% of U.S. adults smoked, an increase from 19.8% in 2007. It is hoped that the April 2009 increase in the federal excise tax on cigarettes from 39 cents to $1.01 per pack coupled with eventual FDA regulations will help reverse this temporary setback. CDC noted that while states have received more than $200 billion in revenue from cigarette taxes and the 1998 Master Settlement Agreement since 2000, they spend less than 3% of this revenue on preventing tobacco use.
On Friday the Agency for Toxic Substances and Disease Registry (ATSDR) reported that it could no longer be confident that environmental contamination at the former Naval training ground on the island of Vieques, Puerto Rico posed no risk to human health. Residents of the island, who formerly protested the Navy’s use of it for target practice prior to it being declared a Superfund site in 2004, have been found by Puerto Rico’s Health Department to have elevated rates of cancer, hypertension and liver disease. Mireya Navarro, Navy’s Vieques Training May Be Tied to Health Risks, N.Y. Times, Nov. 14, 2009, at A14.
On Friday November 13, the University of Maryland Environmental Law Program held its 17th annual Environmental Law Winetasting. More than 150 faculty, alumni, and students attended the event, which featured more than 70 different wines from around the globe, including many from my wine cellar. Among the wines included in the tasting were a 1982 Chateau Mouton Rothschild, a 1978 Chateau Beaucastel Chateauneuf du Pape, a 1984 Chateau Martgaux, and a 1970 Graham’s vintage port. The Environmental Law Program began the annual winetasting event in 1992, coining the slogan “Wine - Nature’s Thanks for Preserving the Earth.” Participants blind tasted a “mystery wine,” which this year turned out to be a 2007 Gran Hazana garnacha from Spain.
Earlier in the week the International Energy Agency (IEA) had warned that carbon allowance prices must double from current levels in Europe by the year 2020 in order to facilitate a true transition to renewable energy alternatives. The IEA projected that allowance prices would have to reach $50 per ton by 2020 and $110/ton by 2030 in industrialized countries, and in developing countries $30/ton by 2020 and $50/on by 2030. On Friday Brazil pledged to cut its contribution to global warming and climate change by 36 percent below levels previously projected for 2020.
On Thursday the U.S. Centers for Disease Control announced that the steady decline in the percentage of U.S. adults who smoked had been slightly reversed in 2008. In the mid-1960s, 40% of U.S. adults smoked, a percentage that has been steadily declining since then and that CDC had hoped to reduce to 12% by the year 2010. However, in 2008, 20.6% of U.S. adults smoked, an increase from 19.8% in 2007. It is hoped that the April 2009 increase in the federal excise tax on cigarettes from 39 cents to $1.01 per pack coupled with eventual FDA regulations will help reverse this temporary setback. CDC noted that while states have received more than $200 billion in revenue from cigarette taxes and the 1998 Master Settlement Agreement since 2000, they spend less than 3% of this revenue on preventing tobacco use.
On Friday the Agency for Toxic Substances and Disease Registry (ATSDR) reported that it could no longer be confident that environmental contamination at the former Naval training ground on the island of Vieques, Puerto Rico posed no risk to human health. Residents of the island, who formerly protested the Navy’s use of it for target practice prior to it being declared a Superfund site in 2004, have been found by Puerto Rico’s Health Department to have elevated rates of cancer, hypertension and liver disease. Mireya Navarro, Navy’s Vieques Training May Be Tied to Health Risks, N.Y. Times, Nov. 14, 2009, at A14.
On Friday November 13, the University of Maryland Environmental Law Program held its 17th annual Environmental Law Winetasting. More than 150 faculty, alumni, and students attended the event, which featured more than 70 different wines from around the globe, including many from my wine cellar. Among the wines included in the tasting were a 1982 Chateau Mouton Rothschild, a 1978 Chateau Beaucastel Chateauneuf du Pape, a 1984 Chateau Martgaux, and a 1970 Graham’s vintage port. The Environmental Law Program began the annual winetasting event in 1992, coining the slogan “Wine - Nature’s Thanks for Preserving the Earth.” Participants blind tasted a “mystery wine,” which this year turned out to be a 2007 Gran Hazana garnacha from Spain.
Thursday, November 12, 2009
IUCN Wuhan Colloquium, CLAPV 10th Anniversary Conference, Ma Jun & China's Richest Man
On Sunday night I returned from China after speaking at conferences in Shanghai, Wuhan and Beijing. On Sunday November 1 I flew from Shanghai to Wuhan to attend the seventh annual Colloquium of the IUCN Academy of Environmental Law. My original flight to Wuhan on Sunday morning had been canceled, but I was able to get on a flight leaving just an hour later which enabled me to escape the sudden snowstorm that hit Beijing later in the day. As a result of the snowstorm my friend Zhang Jingjing, from the Public Interest Law Institute (PILI) was unable to make it to Wuhan in time for what was to be our joint presentation at a plenary session of the IUCN Colloquium on Monday morning. I gave our presentation on “Towards Global Liability Standards for Environmental Harm” by myself. The presentation explored why, despite the rapid advance of global environmental law, little progress has been made in establishing global standards holding polluters liable to victims of environmental harm.
The IUCN Colloquium was attended by nearly 200 environmental law professors from all corners of the world. The opening sessions on Monday were held at Wuhan University, the host of this year’s colloquium. On Tuesday, Wednesday and Thursday, the remaining colloquium sessions were held at the East Lake Hotel, an impressive and historic set of buildings located on the shore of China’s largest urban lake. The hotel contained lots of photos of Chairman Mao from when he lived in the hotel in the late 1950s. With presentations from more than 150 participants, the colloquium provided a wonderful snapshot of developments in environmental law in many different countries. Among the presentations that I found to be particularly interesting were those on the development of environmental courts in China and other countries, NRDC’s work creating a Pollution Information Transparency Index for China, and a discussion of Singapore’s successful effort to limit motor vehicle congestion through electronic congestion charges and vehicle permit auctions. Abstracts and papers presented at the Colloquium will be available online in the near future at the Academy’s website located at: http://www.iucnael.org. The Colloquium gave me an opportunity to catch up with many of the Chinese professors I have come to know from my work there and the chance to meet many new professors from different countries who have now joined the Academy.
The Colloquium also featured a tree-planting ceremony and tribute to the late Professor Han Depei, who had pioneered the teaching of Environmental Law in China. Professor Han, who taught at Wuhan University, died last spring at the age of 99. On Wednesday afternoon participants in the Colloquium went on a field trip to the Wuhan Steel Beihu Outfall Wastewater Recycling Project.
On Thursday afternoon November 5 I flew from Wuhan to Beijing to participate in the tenth anniversary celebration of the founding of the Center for Legal Assistance to Pollution Victims (CLAPV). CLAPV is a public interest environmental group in Beijing that operates a hotline fielding complaints about environmental problems from all over China. It also serves as an environmental law clinic for the China University of Political Science and Law (CUPL) where I taught as a Fulbright scholar while on sabbatical last year. On Friday morning I visited CUPL for a reunion with some of my former students. I met the team that is preparing to come to the U.S. for the International Environmental Moot Court Competition in March 2010. We had lunch together and then I made a quick sightseeing trip around Beijing, visiting the new Qianmen Street development south of Tiananmen Square, as well as the Apple Computer Store in the Sanlitun district.
On Saturday morning I participated in the opening ceremonies for the conference celebrating the tenth anniversary of CLAPV. Nearly 200 lawyers, government officials, and professors took part in the conference. A Beijing TV personality moderated the opening ceremonies which featured a 20-minute documentary film about CLAPV’s work and tributes to CLAPV’s founder Wang Canfa from government officials, university colleagues and former clients. One of the former clients, a farmer whose orchard had been damaged by pollution, presented Zhang Jingjing with fresh organic produce from his farm. On Saturday afternoon I attended conference sessions focusing on obstacles facing public interest litigation and the development of environmental courts in China. On Sunday morning I made a presentation to the conference on “Public Interest Litigation to Redress Global Environmental Harm,” which focused on efforts to make it easier to prove causal injury in environmental tort litigation. The topic is of particular interest in China because China’s Code of Civil Procedure has a burden-shifting provision that requires polluters to disprove that they caused harm when pollution-related injury is demonstrated.
One of the highlights of my trip was meeting Ma Jun, director of the Institute of Public and Environmental Affairs. We had lunch on Sunday and he surprised me by bringing a copy of the fourth edition of my environmental law casebook, which he asked me to sign. He explained that the book’s discussion of using information disclosure as a strategy for promoting improved environmental performance had helped inspire him to develop his website which reports information on pollution by companies throughout China. Ma Jun had just returned from a speaking to a group of businesses in Japan about how to green their supply chain. He agreed to speak to the group of environmental law students from Maryland that I will be bringing back to China during their spring break in March 2010.
An album of photos from my trip to China can be viewed online at http://gallery.me.com/rperci#100575. While I was in China, the China Daily reported on the Forbes’ China list of China’s 400 wealthiest individuals. Topping this year’s list is electric car magnate Wang Chuanfu whose wealth quintupled last year to $5.8 billion due to the skyrocketing value of his company BYD, which is about to launch a line of electric cars in China and the U.S. So Al Gore is not the only astute entrepreneur who is doing well by doing what is good for the environment.
The IUCN Colloquium was attended by nearly 200 environmental law professors from all corners of the world. The opening sessions on Monday were held at Wuhan University, the host of this year’s colloquium. On Tuesday, Wednesday and Thursday, the remaining colloquium sessions were held at the East Lake Hotel, an impressive and historic set of buildings located on the shore of China’s largest urban lake. The hotel contained lots of photos of Chairman Mao from when he lived in the hotel in the late 1950s. With presentations from more than 150 participants, the colloquium provided a wonderful snapshot of developments in environmental law in many different countries. Among the presentations that I found to be particularly interesting were those on the development of environmental courts in China and other countries, NRDC’s work creating a Pollution Information Transparency Index for China, and a discussion of Singapore’s successful effort to limit motor vehicle congestion through electronic congestion charges and vehicle permit auctions. Abstracts and papers presented at the Colloquium will be available online in the near future at the Academy’s website located at: http://www.iucnael.org. The Colloquium gave me an opportunity to catch up with many of the Chinese professors I have come to know from my work there and the chance to meet many new professors from different countries who have now joined the Academy.
The Colloquium also featured a tree-planting ceremony and tribute to the late Professor Han Depei, who had pioneered the teaching of Environmental Law in China. Professor Han, who taught at Wuhan University, died last spring at the age of 99. On Wednesday afternoon participants in the Colloquium went on a field trip to the Wuhan Steel Beihu Outfall Wastewater Recycling Project.
On Thursday afternoon November 5 I flew from Wuhan to Beijing to participate in the tenth anniversary celebration of the founding of the Center for Legal Assistance to Pollution Victims (CLAPV). CLAPV is a public interest environmental group in Beijing that operates a hotline fielding complaints about environmental problems from all over China. It also serves as an environmental law clinic for the China University of Political Science and Law (CUPL) where I taught as a Fulbright scholar while on sabbatical last year. On Friday morning I visited CUPL for a reunion with some of my former students. I met the team that is preparing to come to the U.S. for the International Environmental Moot Court Competition in March 2010. We had lunch together and then I made a quick sightseeing trip around Beijing, visiting the new Qianmen Street development south of Tiananmen Square, as well as the Apple Computer Store in the Sanlitun district.
On Saturday morning I participated in the opening ceremonies for the conference celebrating the tenth anniversary of CLAPV. Nearly 200 lawyers, government officials, and professors took part in the conference. A Beijing TV personality moderated the opening ceremonies which featured a 20-minute documentary film about CLAPV’s work and tributes to CLAPV’s founder Wang Canfa from government officials, university colleagues and former clients. One of the former clients, a farmer whose orchard had been damaged by pollution, presented Zhang Jingjing with fresh organic produce from his farm. On Saturday afternoon I attended conference sessions focusing on obstacles facing public interest litigation and the development of environmental courts in China. On Sunday morning I made a presentation to the conference on “Public Interest Litigation to Redress Global Environmental Harm,” which focused on efforts to make it easier to prove causal injury in environmental tort litigation. The topic is of particular interest in China because China’s Code of Civil Procedure has a burden-shifting provision that requires polluters to disprove that they caused harm when pollution-related injury is demonstrated.
One of the highlights of my trip was meeting Ma Jun, director of the Institute of Public and Environmental Affairs. We had lunch on Sunday and he surprised me by bringing a copy of the fourth edition of my environmental law casebook, which he asked me to sign. He explained that the book’s discussion of using information disclosure as a strategy for promoting improved environmental performance had helped inspire him to develop his website which reports information on pollution by companies throughout China. Ma Jun had just returned from a speaking to a group of businesses in Japan about how to green their supply chain. He agreed to speak to the group of environmental law students from Maryland that I will be bringing back to China during their spring break in March 2010.
An album of photos from my trip to China can be viewed online at http://gallery.me.com/rperci#100575. While I was in China, the China Daily reported on the Forbes’ China list of China’s 400 wealthiest individuals. Topping this year’s list is electric car magnate Wang Chuanfu whose wealth quintupled last year to $5.8 billion due to the skyrocketing value of his company BYD, which is about to launch a line of electric cars in China and the U.S. So Al Gore is not the only astute entrepreneur who is doing well by doing what is good for the environment.
Sunday, November 8, 2009
China Trip, Shanghai Roundtable & South African Justice (Belated Nov. 1 Post)
I've just returned from a week and a half in China where I spoke at conferences in Shanghai, Wuhan and Beijing and gave a guest lecture to students in Shanghai. Because I was behind the "great firewall" I was unable to post on this site last week, though I was able to post on my parallel site at: www.globalenvironmentallaw.com. The following is the November 1 posting that I am belatedly posting here. I will shortly post an update on activities during the past week.
On Wednesday morning I flew to China where I will be speaking at three conferences over the course of 11 days. Shortly after arriving in Shanghai on Thursday afternoon I met with Jim Curtis and May Wang from the Maryland China Center to help organize a reception for the Maryland law students I will be bringing to China in March 2010. The Center, which was established by the state of Maryland, hosted a similar reception for the group of Maryland faculty, students, and alums who visited me in China in March 2008 when I was teaching in Beijing as a Fulbright scholar. I was delighted to discover that the Maryland Center can provide a much wider range of services than I previously had anticipated.
On Thursday evening I gave a guest lecture at the East China Normal University in Shanghai. The class on “Law and Society” was part of New York University’s “NYU in Shanghai” program. Most of the students in the class were NYU undergraduates, though there were a few students from other universities as well. I gave a broad historical outline of how environmental law had developed in the U.S. and China and I discussed how climate change was helping to drive the development of global environmental law.
On Friday I met Professor Linda Malone from William and Mary at the Shangri-La Hotel in Pudong. We took a taxi together for the long trip out into the suburbs for a conference on “US NEPA, Environmental Federalism, Climate Change and New Developments in Environmental Law and Policy.” The conference was co-sponsored by Shanghai Jiao Tong University (SJTU) and Pace University’s Center for Environmental Legal Studies. It was designed to bring legal scholars from the U.S., China and Australia together with Chinese environmental officials to compare notes on new developments in environmental law. The U.S. presentations focused on explaining how the process of environmental impact assessment is conducted under our National Environmental Policy Act (NEPA) and efforts to control U.S. emissions of greenhouse gases (GHGs).
I made a presentation on “Climate Change and Environmental Federalism in the Aftermath of Massachusetts v. EPA.” Former congressman Dick Ottinger from Pace discussed the Waxman-Market bill that passed the U.S. House in June and Professor Rob Fowler from the University of South Australia explored efforts in South Australia to encourage environmentally sustainable development. Yang Chaofei, director of the Policy and Law Department of China’s Ministry of Environmental Protection (MEP) and Bie Tao, general counsel of MEP spoke about China’s efforts to control pollution. SJTU Professor Wang Xi presented a detailed comparison of U.S. and Chinese environmental law. We had a lively discussion concerning differences in the legislative process between China and the U.S. with private industry having much more influence in our Congress. I raised the question whether this might actually contribute to U.S. environmental laws being easier to enforce because the regulated community must take them more seriously.
Justice Johann van der Westhuizen of the Constitutional Court of South Africa visited the University of Maryland School of Law as a Distinguished Visitor this week. On Monday he spoke at a luncheon at the school where he discussed the work of his Court and the importance of maintaining respect for the rule of law. I asked him about his Court’s decision in the Mazibuko right to water case where the court overturned a lower court decision that had increased free water allotments to communities to 50 liters per day. Justice van der Westhuizen stated that the was surprised by the harsh reaction to the decision by NGOs around the world. He explained that the court did not want to micromanage the implementation of economic and social rights in the South African Constitution. He expressed the view that the government was in the best position to determine the reasonableness of water allotments in compliance with Article 27 of the Constitution. This article obliges the state to take reasonable measures, within available resources, to give everyone access to sufficient water.
On Saturday I spent the day with my friends Dan Guttman and Zhenzhi (“Zee Zee”) Zhong. Dan has been teaching in China for more than five years now since initially coming here as a Fulbright Scholar. Zee Zee helps run Shanghai Roots & Shoots. After visiting the Roots & Shoots office we went to the top of the spectacular Shanghai World Financial Center (SWFC), which has the world’s tallest observation deck. It provided a truly spectacular view of Shanghai. We then visited the Tai Kang Lu arts district, followed by drinks at the spectacular Vu Bar at the Park Hyatt and a fabulous Japanese dinner at Kagen Teppanyaki. As to the question whether they celebrate Halloween in Shanghai, the answer is definitely “Yes”. Lots of shops had Halloween displays and the attendants at the SWFC were dressed in witches’ costumes with Harry Potter music playing throughout. I am now about the fly to Wuhan for the annual colloquium of the IUCN Academy of Environmental Law.
On Wednesday morning I flew to China where I will be speaking at three conferences over the course of 11 days. Shortly after arriving in Shanghai on Thursday afternoon I met with Jim Curtis and May Wang from the Maryland China Center to help organize a reception for the Maryland law students I will be bringing to China in March 2010. The Center, which was established by the state of Maryland, hosted a similar reception for the group of Maryland faculty, students, and alums who visited me in China in March 2008 when I was teaching in Beijing as a Fulbright scholar. I was delighted to discover that the Maryland Center can provide a much wider range of services than I previously had anticipated.
On Thursday evening I gave a guest lecture at the East China Normal University in Shanghai. The class on “Law and Society” was part of New York University’s “NYU in Shanghai” program. Most of the students in the class were NYU undergraduates, though there were a few students from other universities as well. I gave a broad historical outline of how environmental law had developed in the U.S. and China and I discussed how climate change was helping to drive the development of global environmental law.
On Friday I met Professor Linda Malone from William and Mary at the Shangri-La Hotel in Pudong. We took a taxi together for the long trip out into the suburbs for a conference on “US NEPA, Environmental Federalism, Climate Change and New Developments in Environmental Law and Policy.” The conference was co-sponsored by Shanghai Jiao Tong University (SJTU) and Pace University’s Center for Environmental Legal Studies. It was designed to bring legal scholars from the U.S., China and Australia together with Chinese environmental officials to compare notes on new developments in environmental law. The U.S. presentations focused on explaining how the process of environmental impact assessment is conducted under our National Environmental Policy Act (NEPA) and efforts to control U.S. emissions of greenhouse gases (GHGs).
I made a presentation on “Climate Change and Environmental Federalism in the Aftermath of Massachusetts v. EPA.” Former congressman Dick Ottinger from Pace discussed the Waxman-Market bill that passed the U.S. House in June and Professor Rob Fowler from the University of South Australia explored efforts in South Australia to encourage environmentally sustainable development. Yang Chaofei, director of the Policy and Law Department of China’s Ministry of Environmental Protection (MEP) and Bie Tao, general counsel of MEP spoke about China’s efforts to control pollution. SJTU Professor Wang Xi presented a detailed comparison of U.S. and Chinese environmental law. We had a lively discussion concerning differences in the legislative process between China and the U.S. with private industry having much more influence in our Congress. I raised the question whether this might actually contribute to U.S. environmental laws being easier to enforce because the regulated community must take them more seriously.
Justice Johann van der Westhuizen of the Constitutional Court of South Africa visited the University of Maryland School of Law as a Distinguished Visitor this week. On Monday he spoke at a luncheon at the school where he discussed the work of his Court and the importance of maintaining respect for the rule of law. I asked him about his Court’s decision in the Mazibuko right to water case where the court overturned a lower court decision that had increased free water allotments to communities to 50 liters per day. Justice van der Westhuizen stated that the was surprised by the harsh reaction to the decision by NGOs around the world. He explained that the court did not want to micromanage the implementation of economic and social rights in the South African Constitution. He expressed the view that the government was in the best position to determine the reasonableness of water allotments in compliance with Article 27 of the Constitution. This article obliges the state to take reasonable measures, within available resources, to give everyone access to sufficient water.
On Saturday I spent the day with my friends Dan Guttman and Zhenzhi (“Zee Zee”) Zhong. Dan has been teaching in China for more than five years now since initially coming here as a Fulbright Scholar. Zee Zee helps run Shanghai Roots & Shoots. After visiting the Roots & Shoots office we went to the top of the spectacular Shanghai World Financial Center (SWFC), which has the world’s tallest observation deck. It provided a truly spectacular view of Shanghai. We then visited the Tai Kang Lu arts district, followed by drinks at the spectacular Vu Bar at the Park Hyatt and a fabulous Japanese dinner at Kagen Teppanyaki. As to the question whether they celebrate Halloween in Shanghai, the answer is definitely “Yes”. Lots of shops had Halloween displays and the attendants at the SWFC were dressed in witches’ costumes with Harry Potter music playing throughout. I am now about the fly to Wuhan for the annual colloquium of the IUCN Academy of Environmental Law.
Sunday, October 25, 2009
Global Law Conference & Madeline Albright Keynote, Climate Negotiations, Nigerian Oil Proposal & NAS Study
Last week was International Law Week at the University of Maryland. The week’s activities culminated in a conference on “Multilateralism and Global Law” sponsored by Maryland’s International & Comparative Law Program. On Thursday October 24, former U.S. Secretary of State Madeline Albright delivered the keynote address on “The Role of Law in World Affairs - 2009” to an audience of more than 300 people in Westminster Hall. Secretary Albright gave a terrific presentation reflecting on the significant changes that have occurred in the international law field as a result of globalization. Following her talk, Secretary Albright responded candidly to several questions about global diplomacy. When asked about the prospects for a new global agreement to control greenhouse gases (GHG) emissions at the Copenhagen Conference, she was not optimistic. She noted that she had always thought that the Kyoto Protocol came too late in the Clinton Administration in which she had served and she observed that the Copenhagen Conference may be occurring too early in the Obama Administration. After her address, the Secretary joined a small group of faculty and students for a dinner that I attended.
On Friday October 25 the conference continued with a panel on “Global Environmental Law.” I participated in the panel which also featured Professor Hari Osofsky from Washington and Lee University School of Law and Professor Jutta Brunée from the University of Toronto’s Faculty of Law. I explored why standards of liability for environmental harm have been one of the least well-developed areas of global environmental law. Hari spoke about how developments at different levels of government are influencing the development of global law and Jutta explored how different nations are interpreting the principle of “common but differentiated responsibilities”.
Professor Jeff Dunoff from Temple gave a terrific lunchtime presentation in which he contrasted three emerging approaches to global law - constitutionalism, global administrative law, and legal pluralism. Jacob Werksman, Director of the Institutions and Governance Program at the World Resources Institute, spoke on the concluding panel of the conference on “The Future of Global Legal Regulation.” Jake has been involved in advising the Danish government on the Copenhagen conference. He noted that in pre-Copenhagen negotiations the U.S. has been arguing that it is more important to have a “bottom-up” approach in which individual countries first develop their own legal mechanisms for controlling GHG emissions rather than pursuing the “top-down” model of the Kyoto Protocol where global commitments are made first and each country then must decide how to fulfill them. Papers prepared for the conference will be published in the Maryland Journal of International Law.
With the Copenhagen conference rapidly approaching, a flurry of pre-conference activity is occurring around the world. The Major Economies Forum (dubbed by environmentalists the “Major Emitters Forum because it included the world’s 17 largest economies) concluded in London with little consensus over levels of financial assistance to provide developing countries to help them reduce their GHG emissions. A conference in Beijing co-sponsored by the Brooking Institution and the China Institute of Strategy and Management on Wednesday and Thursday explored opportunities for greater collaboration by the two countries in developing low-carbon energy technologies.
Last week the Nigerian government proposed to give communities in the oil-rich Niger Delta a 10 percent stake in the national oil company’s holdings in joint ventures to develop oil in that area. The government is proposing to set up a trust fund that can distribute revenues directly to the communities to respond to long-standing complaints that they do not benefit from oil development that has caused substantial pollution in the Delta. The Nigerian government is trying to end civil unrest in the region that has generated attacks on oil facilities in the Delta, cutting production as much as 40 percent recently. Residents of the Delta live in abject poverty and suffer health problems exacerbated by their exposure to natural gas flares from oil production facilities. Only Russia flares more gas than Nigeria, which accounts for 10 percent of the world’s total, adding 40 million tons of GHG emissions to the global total. Many details of the government’s proposal remain to be worked out, but it was hailed as a promising breakthrough (“A Hope for Nigeria,” Financial Times, October 19, 2009) that might generate as much as $330 million annually for the communities.
Last Monday the National Academy of Sciences released an report on the “Hidden Costs of Energy: Unpriced Consequences of Energy Production and Use”. The report estimated that damages to human health from air pollution caused primarily by the burning of fossil fuels may run as high as $120 billion annually in the United States. The report, which was commissioned by Congress, does not include quantitative estimates of the damage caused by climate change or the effects of pollutants such as mercury, but it demonstrates the huge hidden costs of coal and oil use. A copy of the report is available online at: http://www.nap.edu/catalog.php?record_id=12794
On Friday October 25 the conference continued with a panel on “Global Environmental Law.” I participated in the panel which also featured Professor Hari Osofsky from Washington and Lee University School of Law and Professor Jutta Brunée from the University of Toronto’s Faculty of Law. I explored why standards of liability for environmental harm have been one of the least well-developed areas of global environmental law. Hari spoke about how developments at different levels of government are influencing the development of global law and Jutta explored how different nations are interpreting the principle of “common but differentiated responsibilities”.
Professor Jeff Dunoff from Temple gave a terrific lunchtime presentation in which he contrasted three emerging approaches to global law - constitutionalism, global administrative law, and legal pluralism. Jacob Werksman, Director of the Institutions and Governance Program at the World Resources Institute, spoke on the concluding panel of the conference on “The Future of Global Legal Regulation.” Jake has been involved in advising the Danish government on the Copenhagen conference. He noted that in pre-Copenhagen negotiations the U.S. has been arguing that it is more important to have a “bottom-up” approach in which individual countries first develop their own legal mechanisms for controlling GHG emissions rather than pursuing the “top-down” model of the Kyoto Protocol where global commitments are made first and each country then must decide how to fulfill them. Papers prepared for the conference will be published in the Maryland Journal of International Law.
With the Copenhagen conference rapidly approaching, a flurry of pre-conference activity is occurring around the world. The Major Economies Forum (dubbed by environmentalists the “Major Emitters Forum because it included the world’s 17 largest economies) concluded in London with little consensus over levels of financial assistance to provide developing countries to help them reduce their GHG emissions. A conference in Beijing co-sponsored by the Brooking Institution and the China Institute of Strategy and Management on Wednesday and Thursday explored opportunities for greater collaboration by the two countries in developing low-carbon energy technologies.
Last week the Nigerian government proposed to give communities in the oil-rich Niger Delta a 10 percent stake in the national oil company’s holdings in joint ventures to develop oil in that area. The government is proposing to set up a trust fund that can distribute revenues directly to the communities to respond to long-standing complaints that they do not benefit from oil development that has caused substantial pollution in the Delta. The Nigerian government is trying to end civil unrest in the region that has generated attacks on oil facilities in the Delta, cutting production as much as 40 percent recently. Residents of the Delta live in abject poverty and suffer health problems exacerbated by their exposure to natural gas flares from oil production facilities. Only Russia flares more gas than Nigeria, which accounts for 10 percent of the world’s total, adding 40 million tons of GHG emissions to the global total. Many details of the government’s proposal remain to be worked out, but it was hailed as a promising breakthrough (“A Hope for Nigeria,” Financial Times, October 19, 2009) that might generate as much as $330 million annually for the communities.
Last Monday the National Academy of Sciences released an report on the “Hidden Costs of Energy: Unpriced Consequences of Energy Production and Use”. The report estimated that damages to human health from air pollution caused primarily by the burning of fossil fuels may run as high as $120 billion annually in the United States. The report, which was commissioned by Congress, does not include quantitative estimates of the damage caused by climate change or the effects of pollutants such as mercury, but it demonstrates the huge hidden costs of coal and oil use. A copy of the report is available online at: http://www.nap.edu/catalog.php?record_id=12794
Monday, October 19, 2009
Climate Negotiations, Comer & Kivalina decisions, U.S. Business Lobby, Nuclear Power & Chinese Professor
The latest round of pre-Copenhagen climate negotiations concluded a week ago in Bangkok with little progress. But this week there were signs that developing countries were showing some flexibility in the negotiations by dropping their insistence on mandated technology transfer. EU climate negotiators reported that their developing country counterparts are now embracing the concept of joint development of low carbon technologies rather than mandated technology transfer. FIona Harvey, Hopes for Deal on Climate Boosted, Financial Times, Oct. 16, 2009, at 3.
Two new court decisions surfaced this week on common law nuisance actions brought due to harm caused by climate change. In Comer v. Murphy Oil USA, the U.S. Court of Appeals for the Fifth Circuit held that a district court had erred when it dismissed on political question grounds a lawsuit alleging that greenhouse gas (GHG) emissions by oil and chemical companies had added to the ferocity of Hurricane Katrina. The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw,com
A federal district judge in San Francisco has reached a contrary result in a lawsuit by an arctic village seeking damages from oil companies for harmed caused by climate change. In Native Village of Kivalina v. ExxonMobil Corporation, Judge Saundra Armstrong held that while the international dimensions of climate change did not render the case nonjusticiable, the absence of judicially discoverable and manageable standards for holding defendants liable for damages did make it a nonjusticiable political question. The judge also held that the plaintiffs lacked standing in light of the attentuated causal change they alleged between the defendants’ conduct and their injuries. Plaintiffs have vowed to appeal this case to the Ninth Circuit which may well reverse in light of the rejection of the political question grounds by the Second (Connecticut v. American Electric Power) and Fifth (Comer v. Murphy Oil USA) Circuits. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw.com
Debate over cap-and-trade legislation in the U.S. Senate is causing a split within the business community. On Friday Washington Post business reporter Steven Pearlstein wrote a devastating column attacking the campaign the U.S. Chamber of Commerce is waging against the legislation as not representing the true views of the Chamber’s members who are far less than the 3 million it claims. See Steven Pearlstein, U.S. Chamber of Commerce Reaping the WHirlwind, Washington Post, Oct. 16, 2009, at A16.
Support for cap-and-trade legislation is reportedly growing with indications that some Republican Senators may support the legislation if it includes additional subsidies to revive the U.S. nuclear power industry. The German government also reportedly is reconsidering its decision to phase out nuclear power. Last week the U.S. Nuclear Regulatory Commission (NRC) rejected the design of the new AP1000 reactor due to concerns about the adequacy of the containment vessel, which may increase public confidence in the NRC’s efforts to ensure the safety of new reactors.
On Friday I had lunch in Washington D.C. with Professor Wei Guihong, the deputy dean of the Department of Law at the Beijing Forestry University. I first met Professor Wei two and a half years ago when she participated in the Globalizing Clinical Education conference held at the University of Maryland School of Law. She has been spending the last year in the United States researching public interest law at Georgetown University, working primarily with Professor Philip Schrag. Professor Wei had just returned from a conference in Portland, Oregon. She will return to Beijing at the end of the month and she is interested in promoting the use of conservation easements in China. She also is interested in biodiversity and forestry protection law.
Two new court decisions surfaced this week on common law nuisance actions brought due to harm caused by climate change. In Comer v. Murphy Oil USA, the U.S. Court of Appeals for the Fifth Circuit held that a district court had erred when it dismissed on political question grounds a lawsuit alleging that greenhouse gas (GHG) emissions by oil and chemical companies had added to the ferocity of Hurricane Katrina. The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw,com
A federal district judge in San Francisco has reached a contrary result in a lawsuit by an arctic village seeking damages from oil companies for harmed caused by climate change. In Native Village of Kivalina v. ExxonMobil Corporation, Judge Saundra Armstrong held that while the international dimensions of climate change did not render the case nonjusticiable, the absence of judicially discoverable and manageable standards for holding defendants liable for damages did make it a nonjusticiable political question. The judge also held that the plaintiffs lacked standing in light of the attentuated causal change they alleged between the defendants’ conduct and their injuries. Plaintiffs have vowed to appeal this case to the Ninth Circuit which may well reverse in light of the rejection of the political question grounds by the Second (Connecticut v. American Electric Power) and Fifth (Comer v. Murphy Oil USA) Circuits. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw.com
Debate over cap-and-trade legislation in the U.S. Senate is causing a split within the business community. On Friday Washington Post business reporter Steven Pearlstein wrote a devastating column attacking the campaign the U.S. Chamber of Commerce is waging against the legislation as not representing the true views of the Chamber’s members who are far less than the 3 million it claims. See Steven Pearlstein, U.S. Chamber of Commerce Reaping the WHirlwind, Washington Post, Oct. 16, 2009, at A16.
Support for cap-and-trade legislation is reportedly growing with indications that some Republican Senators may support the legislation if it includes additional subsidies to revive the U.S. nuclear power industry. The German government also reportedly is reconsidering its decision to phase out nuclear power. Last week the U.S. Nuclear Regulatory Commission (NRC) rejected the design of the new AP1000 reactor due to concerns about the adequacy of the containment vessel, which may increase public confidence in the NRC’s efforts to ensure the safety of new reactors.
On Friday I had lunch in Washington D.C. with Professor Wei Guihong, the deputy dean of the Department of Law at the Beijing Forestry University. I first met Professor Wei two and a half years ago when she participated in the Globalizing Clinical Education conference held at the University of Maryland School of Law. She has been spending the last year in the United States researching public interest law at Georgetown University, working primarily with Professor Philip Schrag. Professor Wei had just returned from a conference in Portland, Oregon. She will return to Beijing at the end of the month and she is interested in promoting the use of conservation easements in China. She also is interested in biodiversity and forestry protection law.
Monday, October 12, 2009
Venezuela Trip & Maryland Conference
Early this morning I returned to D.C. after a whirlwind weekend trip to Venezuela. I took my son Richard, who was born in Paraguay, to see the Paraguayan national soccer team play its penultimate World Cup Soccer qualifier against Venezuela. Richard is a freshman at Florida International University in Miami and we planned this trip several weeks ago, thinking it would be a critical game for the Paraguayan team. However, because Paraguay upset Argentina last month it already had qualified to play in the World Cup, which will be held this summer in South Africa. Thus, the game meant much more to Venezuela, the only country in South American that has never appeared in the World Cup.
On Thursday I flew to Miami and picked up my son and we flew to Caracas on Friday morning. We spent Friday night visiting with my friend Xu Kezhu, whose husband is the Chinese consul to Venezuela. Professor Xu was the deputy director of the Center for Legal Assistance to Pollution Victims (CLAPV) in Beijing until she moved to Venezuela in January to join her husband. I last saw her in December where she took me to see the world famous Venezuelan Youth Symphony perform at the National Center for Performing Arts (“the Egg”) in Beijing. On Friday night Professor Xu and her husband took Richard and I to see a Chinese shadow puppet troupe, the Folkloric Arts Company of Shaanxi, perform at the Teatro Municipal in Caracas. After their terrific performance, we went backstage and met the performers who gave us an opportunity to try manipulating their shadow puppets. We then fought a horrendous traffic jam in downtown Caracas before meeting Professor Xu’s son who joined us for dinner at a local Chinese restaurant. It was really great to see Professor Xu and to meet her family. She told me that she plans to return to public interest environmental law practice in China when her husband’s posting is completed in a few years.
Two weeks ago it was announced that the Venezuela/Paraguay soccer game would be played in Puerto Ordaz, Venezuela, nearly 400 miles southeast of Caracas. As a result on Saturday we had to leave Caracas at 6AM to embark on a 9-hour trip to Puerto Ordaz. When we stopped for gas I was astonished to discover how cheap it is due to nationalization of the oil companies and heavy government subsidies. A liter of 91 octane gasoline costs .079 bolivares, the equivalent of less than .30 bolivares per gallon or less than 14 cents in US currency at the official exchange rate of 2.14 bolivares per dollar (or less than 6 cents at the black market rate of more than 5 bolivares per dollar). High octane (95) premium gasoline cost .009 bolivares per liter or less than 16 cents per gallon (official exchange rate, 6.5 cents at the black market rate). While Venezuelans seem proud that their gasoline costs less than water, it results in their country being the refuge of gas guzzlers that generate considerable pollution and enormous traffic jams in Caracas. No one will be crazy enough to buy a hybrid vehicle when you can fill your tank up for less than a dollar. With everyone invested in a culture of astonishingly cheap gasoline, eliminating the subsidies would be an enormous political challenge.
After hours of traversing southeastern Venezuela, crossing the Orinoco River we finally arriving in Puerto Ordaz, a town near the Guyana border. We proceeded directly to Cachamay Stadium where we arrived two hours before gametime. Every seat already was occupied by more than 40,000 wildly cheering Venezuelan fans. My son wisely opted to buy a Venezuelan hat so as not to attract unwanted attention as one of the very few Paraguayan fans present (he declared that the hat would be a present for a classmate from Venezuela after he returned to Miami). He did find a Paraguay jersey that he purchased, but he wisely returned it to the car rather than wearing it into the stadium. Paraguay played brilliantly, but the game was scoreless at halftime. In the second half Paraguay scored two goals and their goalie blocked a Venezuelan penalty kick, sending local supporters of the “vinotinto” (the charming nickname for the Venezuelan team because they wear burgundy jerseys the color of red wine) streaming for the exits. A few came back when Venezuela scored a late goal, but the game ended with a 2-1 Paraguay victory, putting the Paraguayan Guarani in a tie for first place in the South American group. After staying overnight in Puerto Ordaz, we left at 4AM on Sunday to return to Caracas in time for our flight back to the U.S. Photos of our trip are available online at: http://gallery.me.com/rperci#100567
Prior to leaving for Venezuela on Thursday, I attend the opening of a terrific conference on “Regulatory Dsyfunction” that our Environmental Law Program co-sponsored with the Center for Progressive Reform. The conference was organized by my colleague Rena Steinzor, president of the Center for Progressive Reform, which has done a fabulous job of promoting the public interest in regulatory issues. The conference included representatives of EPA, OSHA and the Consumer Products Safety Commission (CPSC), who discussed the problems confronting each of their agencies, prominent academics and environmental activists. Because I had to teach a class and catch a plane, I was only able to attend a brief part of the conference. While the discussions were off the record, what struck me was the extent to which international issues have affected each agency. OSHA has wrestled with how to harmonize hazard communication requirements with international standards. The CPSC is dealing with a host of issues raised by imports of hazardous consumer products. EPA is considering TSCA reform against the backdrop of the EU’s path-breaking REACH program that will generate far more test data on chemicals than EPA currently has. Globalization is clearly having a profound effect on regulatory policy.
On Thursday I flew to Miami and picked up my son and we flew to Caracas on Friday morning. We spent Friday night visiting with my friend Xu Kezhu, whose husband is the Chinese consul to Venezuela. Professor Xu was the deputy director of the Center for Legal Assistance to Pollution Victims (CLAPV) in Beijing until she moved to Venezuela in January to join her husband. I last saw her in December where she took me to see the world famous Venezuelan Youth Symphony perform at the National Center for Performing Arts (“the Egg”) in Beijing. On Friday night Professor Xu and her husband took Richard and I to see a Chinese shadow puppet troupe, the Folkloric Arts Company of Shaanxi, perform at the Teatro Municipal in Caracas. After their terrific performance, we went backstage and met the performers who gave us an opportunity to try manipulating their shadow puppets. We then fought a horrendous traffic jam in downtown Caracas before meeting Professor Xu’s son who joined us for dinner at a local Chinese restaurant. It was really great to see Professor Xu and to meet her family. She told me that she plans to return to public interest environmental law practice in China when her husband’s posting is completed in a few years.
Two weeks ago it was announced that the Venezuela/Paraguay soccer game would be played in Puerto Ordaz, Venezuela, nearly 400 miles southeast of Caracas. As a result on Saturday we had to leave Caracas at 6AM to embark on a 9-hour trip to Puerto Ordaz. When we stopped for gas I was astonished to discover how cheap it is due to nationalization of the oil companies and heavy government subsidies. A liter of 91 octane gasoline costs .079 bolivares, the equivalent of less than .30 bolivares per gallon or less than 14 cents in US currency at the official exchange rate of 2.14 bolivares per dollar (or less than 6 cents at the black market rate of more than 5 bolivares per dollar). High octane (95) premium gasoline cost .009 bolivares per liter or less than 16 cents per gallon (official exchange rate, 6.5 cents at the black market rate). While Venezuelans seem proud that their gasoline costs less than water, it results in their country being the refuge of gas guzzlers that generate considerable pollution and enormous traffic jams in Caracas. No one will be crazy enough to buy a hybrid vehicle when you can fill your tank up for less than a dollar. With everyone invested in a culture of astonishingly cheap gasoline, eliminating the subsidies would be an enormous political challenge.
After hours of traversing southeastern Venezuela, crossing the Orinoco River we finally arriving in Puerto Ordaz, a town near the Guyana border. We proceeded directly to Cachamay Stadium where we arrived two hours before gametime. Every seat already was occupied by more than 40,000 wildly cheering Venezuelan fans. My son wisely opted to buy a Venezuelan hat so as not to attract unwanted attention as one of the very few Paraguayan fans present (he declared that the hat would be a present for a classmate from Venezuela after he returned to Miami). He did find a Paraguay jersey that he purchased, but he wisely returned it to the car rather than wearing it into the stadium. Paraguay played brilliantly, but the game was scoreless at halftime. In the second half Paraguay scored two goals and their goalie blocked a Venezuelan penalty kick, sending local supporters of the “vinotinto” (the charming nickname for the Venezuelan team because they wear burgundy jerseys the color of red wine) streaming for the exits. A few came back when Venezuela scored a late goal, but the game ended with a 2-1 Paraguay victory, putting the Paraguayan Guarani in a tie for first place in the South American group. After staying overnight in Puerto Ordaz, we left at 4AM on Sunday to return to Caracas in time for our flight back to the U.S. Photos of our trip are available online at: http://gallery.me.com/rperci#100567
Prior to leaving for Venezuela on Thursday, I attend the opening of a terrific conference on “Regulatory Dsyfunction” that our Environmental Law Program co-sponsored with the Center for Progressive Reform. The conference was organized by my colleague Rena Steinzor, president of the Center for Progressive Reform, which has done a fabulous job of promoting the public interest in regulatory issues. The conference included representatives of EPA, OSHA and the Consumer Products Safety Commission (CPSC), who discussed the problems confronting each of their agencies, prominent academics and environmental activists. Because I had to teach a class and catch a plane, I was only able to attend a brief part of the conference. While the discussions were off the record, what struck me was the extent to which international issues have affected each agency. OSHA has wrestled with how to harmonize hazard communication requirements with international standards. The CPSC is dealing with a host of issues raised by imports of hazardous consumer products. EPA is considering TSCA reform against the backdrop of the EU’s path-breaking REACH program that will generate far more test data on chemicals than EPA currently has. Globalization is clearly having a profound effect on regulatory policy.
Sunday, October 4, 2009
Justice & Global Economy Program, Chinese Scholar, Senate GHG Bill and EPA GHG Regulations
On Saturday afternoon I participated in a program on “Justice and the Global Economy” to mark the inauguration of Maryland’s new law dean Phoebe Haddon. More than 500 people attended the program which was held at the spectacular new student center on our campus in downtown Baltimore. The audience included prominent members of the Maryland legal and governmental communities and many of Dean Haddon’s former colleagues from Temple University.
The program featured talks by Dean Haddon, Congressman Elijah Cummings, and a keynote address by U.S. Trade Representative Ron Kirk. Kirk explained why global trade is important to the U.S. economy, noting that 95 percent of all the world’s consumers live outside of the U.S. Prior to his address I made a presentation on environmental justice and the global economy as part of a panel with Hogan & Hartson partner Louis Lebowitz and my colleague Shruti Rana. I noted that environmental groups split over trade liberalization with some believing it would encourage production to move to countries with lax environmental standards, generating pressure to relax domestic environmental regulation. Other environmentalists believed that free trade agreements created an opportunity to establish new institutions to highlight lax enforcement of environmental standards in other countries. While trade liberalization has produced mixed results to date, I argued that it would be crucial to achieve consensus at Copenhagen on a new global regime of controls on greenhouse gas (GHG) emissions that satisfies the legitimate concerns of developing countries without sparking renewed protectionism.
On Wednesday Professor Zhang Shijun from Shandong University arrived at Maryland to begin a year serving as a visiting environmental law scholar. Just hours after arriving in Maryland, Professor Zhang and I attended a reception for visiting faculty which gave him an opportunity to introduce himself to my colleagues. On Wednesday afternoon he attended my Environmental Law class and on Wednesday evening my assistant Suzann Langrall hosted a wonderful dinner for him at her home near campus. Suzann is helping to organize a trip to China that we will be taking with our environmental law students and alums during spring break next March. On Tuesday we hosted an informational session for people interested in the trip where we showed photos and video from the previous Maryland law trip to China in March 2008.
On Wednesday Senators Barbara Boxer and John Kerry, chairs of the Senate Environment and Foreign Relations committees respectively, unveiled draft legislation to be considered in the Senate this fall that would cap and reduce GHG emissions. They proposed GHG reductions somewhat more ambitious than those approved by the House of Representatives in June. Their proposal has many details that remained to be specified, including how emissions allowances would be distributed. On the same day EPA Administrator Lisa Jackson announced that she had approved a notice of proposed regulations to regulate under the Clean Air Act GHG emissions from sources that emit more than 25,000 tons per year. The proposed regulations, which are available online at: http://www.epa.gov/nsr/documents/GHGTailoringProposal.pdf, are likely to put more pressure on Congress to approve its own program to control GHG emissions. However, later in the week Obama climate and energy czar Carol Browner expressed the view that it was unlikely that there will be sufficient time for Congress to agree on new GHG control legislation prior to the Copenhagen conference in December.
Today marked the end of the Major League Baseball regular season, except for a one-day playoff that will be held in Minnesota on Tuesday between the Twins and the Detroit Tigers. The team I root for, the Washington Nationals, became the first team in baseball history to both start a season with seven straight losses and to end it with seven straight wins. On Saturday morning I was delighted to attend our law school’s annual 1L softball tournament where more than 200 students from each of the ten first year small sections competed. Congratulations to Professor Deborah Hellman’s Section G, which won the tournament.
The program featured talks by Dean Haddon, Congressman Elijah Cummings, and a keynote address by U.S. Trade Representative Ron Kirk. Kirk explained why global trade is important to the U.S. economy, noting that 95 percent of all the world’s consumers live outside of the U.S. Prior to his address I made a presentation on environmental justice and the global economy as part of a panel with Hogan & Hartson partner Louis Lebowitz and my colleague Shruti Rana. I noted that environmental groups split over trade liberalization with some believing it would encourage production to move to countries with lax environmental standards, generating pressure to relax domestic environmental regulation. Other environmentalists believed that free trade agreements created an opportunity to establish new institutions to highlight lax enforcement of environmental standards in other countries. While trade liberalization has produced mixed results to date, I argued that it would be crucial to achieve consensus at Copenhagen on a new global regime of controls on greenhouse gas (GHG) emissions that satisfies the legitimate concerns of developing countries without sparking renewed protectionism.
On Wednesday Professor Zhang Shijun from Shandong University arrived at Maryland to begin a year serving as a visiting environmental law scholar. Just hours after arriving in Maryland, Professor Zhang and I attended a reception for visiting faculty which gave him an opportunity to introduce himself to my colleagues. On Wednesday afternoon he attended my Environmental Law class and on Wednesday evening my assistant Suzann Langrall hosted a wonderful dinner for him at her home near campus. Suzann is helping to organize a trip to China that we will be taking with our environmental law students and alums during spring break next March. On Tuesday we hosted an informational session for people interested in the trip where we showed photos and video from the previous Maryland law trip to China in March 2008.
On Wednesday Senators Barbara Boxer and John Kerry, chairs of the Senate Environment and Foreign Relations committees respectively, unveiled draft legislation to be considered in the Senate this fall that would cap and reduce GHG emissions. They proposed GHG reductions somewhat more ambitious than those approved by the House of Representatives in June. Their proposal has many details that remained to be specified, including how emissions allowances would be distributed. On the same day EPA Administrator Lisa Jackson announced that she had approved a notice of proposed regulations to regulate under the Clean Air Act GHG emissions from sources that emit more than 25,000 tons per year. The proposed regulations, which are available online at: http://www.epa.gov/nsr/documents/GHGTailoringProposal.pdf, are likely to put more pressure on Congress to approve its own program to control GHG emissions. However, later in the week Obama climate and energy czar Carol Browner expressed the view that it was unlikely that there will be sufficient time for Congress to agree on new GHG control legislation prior to the Copenhagen conference in December.
Today marked the end of the Major League Baseball regular season, except for a one-day playoff that will be held in Minnesota on Tuesday between the Twins and the Detroit Tigers. The team I root for, the Washington Nationals, became the first team in baseball history to both start a season with seven straight losses and to end it with seven straight wins. On Saturday morning I was delighted to attend our law school’s annual 1L softball tournament where more than 200 students from each of the ten first year small sections competed. Congratulations to Professor Deborah Hellman’s Section G, which won the tournament.
Sunday, September 27, 2009
AEP Decision, UN Climate Summit, G-20 Meeting, Chevron Ecuador Arbitration Claim & ABA SEER Conference
On Monday the U.S. Court of Appeals for the Second Circuit finally released its decision in Connecticut v. American Electric Power, a case that had been argued in June 2006. The court by a vote of 2-0 reversed a district court’s decision that had dismissed a common law nuisance action by states and land trusts against six utilties operating powerplants who contribute 10 percent of U.S. greenhouse gas (GHG) emissions. The court held that the claim that the utilities had caused a public nuisance by contributing to global warming and climate change did not raise a nonjusticiable political question and was not preempted by the federal Clean Air Act. The third judge who had been on the panel was Sonya Sotomayor, now a Justice of the U.S. Supreme Court. I had previously noted that her elevation to the court could require the case to be reargued if the other two judges did not agree. While the decision was 137 pages long, given the agreement on the outcome by the other two judges (one appointed by President George H.W. Bush and the other by President George W. Bush), it is hard to see why it took them so long to decide the case, which raises the interesting question whether Judge Sotomayor agreed with them. One certainly can understand why she would not have wanted the decision to come out before her confirmation, regardless of which way she would have voted, because it would make climate change a flashpoint issue at her confirmation hearings.
The court’s holding that the case did not raise a nonjusticiable political question was widely expected because the district court’s decision seemed to use this doctrine as an excuse to avoid deciding a difficult case. By holding also that the Clean Air Act does not preempt the federal common law of nuisance for GHG emissions by stationary sources because EPA has not regulated them yet, the decision is likely to increase pressure on both EPA and Congress to act to do so.
The United Nations General Assembly held a Climate Summit on Tuesday September 22. Nearly 100 world leaders attended the Summit whose objective was “to mobilize the political will and vision needed to reach an ambitious agreed outcome based on science at the UN climate talks in Copenhagen.” While there was broad agreement on the importance of the Copenhagen negotiations, there were no significant breakthroughs in terms of new commitments to reduce GHG emissions or to provide financial assistance to help developing countries do so. President Obama and Chinese President Hu Jintao joined other leaders in summarizing the many things their countries are doing to reduce the growth of GHG emissions with Hu pledging to reduce the carbon intensity of Chinese economic growth, but not committing to any limits on total Chinese emissions. EU leaders expressed frustration with the failure of the U.S. Senate to act more quickly on cap-and-trade legislation that has passed the House.
On Thursday and Friday leaders of the G-20 countries met in Pittsburgh. While the revelation of the secret Iranian nuclear facility stole much of the show, the leaders did consider a U.S. proposal to phase out subsidies for fossil fuel use. It is estimated that elimination of such subsidies, which are estimated to cost the largest developing countries such as China, India, Russia, South Africa and Iran $310 billion per year, could reduce GHG emissions by 10 to 12 percent. While some of these subsidies are viewed as politically necessary to help the poor meet their energy needs, Indonesia is being held up as a model for replacing the subsidies with direct cash payments to the poor to eliminate their tilt toward fossil fuel use. The final conference communiqué, which can be viewed at http://www.pittsburghsummit.gov/mediacenter/129639.htm calls for further investigation of this initiative and a report at the next G-20 summit.
On Wednesday September 23, the Chevron Corporation announced that it had filed an international arbitration claim against the government of Ecuador in the Permanent Court of Arbitration in the Hague. Chevron bases its claim on what it calls the Ecuadoran government’s “exploitation” of the lawsuit filed by residents of the Oriente region f or environmental damage caused by oil drilling. Chevron is asking the tribunal to enforce its 1998 cleanup agreement with Petroecuador and a bilateral U.S.-Ecuador investment treaty. While Chevron’s move was widely expected, most observers thought it would not occur until after the litigation against the company was concluded in the Ecuadoran courts. Chevron, which initially fought to remove the case from the U.S. courts, now claims that it has no choice because “Ecuador’s judicial system is incapable of functioning independently of political influence.” Ecuadoran attorney general Diego Garcia rejected Chevron’s effort to impugn the integrity of the Ecuadoran judiciary and noted that the plaintiffs in the lawsuit before the Ecuadoran court are not parties to the arbitration proceeding Chevron has initiated in the Hague.
On Friday I moderated a panel on “Climate Change and Other Hot Clean Air Act Issues” at the American Bar Association’s annual fall conference of the Section on Environment, Energy and Resources (SEER) Law. Former EPA general counsel Roger Martella introduced me and I then introduced the panel consisting of former EPA Deputy Administrator Bob Sussman, Bill Becker (president of the National Association of Clean Air Agencies), Environmental Defense Fund General Counsel Jim Tripp and ExxonMobil environmental counsel Clara Poffenberger. Rather than having lengthy presentations from each panelist, we used a roundtable format where I raised a set of issues and asked each panelist to respond. Bob Sussman, who is now a senior policy adviser to EPA Administrator Lisa Jackson, gave EPA’s position, then Bill explained the views of state regulators, while Jim represented the environmental community and Clara reflected the views of an oil company that has been one of the leading skeptics on climate change issues. It made for a lively discussion as we did three rounds focusing on EPA’s actions to regulate GHG emissions, the cap-and-trade legislation in Congress, and EPA’s efforts to control mercury emissions, interstate air pollution and ground level ozone. The panelists then responded to written questions submitted by the audience.
The court’s holding that the case did not raise a nonjusticiable political question was widely expected because the district court’s decision seemed to use this doctrine as an excuse to avoid deciding a difficult case. By holding also that the Clean Air Act does not preempt the federal common law of nuisance for GHG emissions by stationary sources because EPA has not regulated them yet, the decision is likely to increase pressure on both EPA and Congress to act to do so.
The United Nations General Assembly held a Climate Summit on Tuesday September 22. Nearly 100 world leaders attended the Summit whose objective was “to mobilize the political will and vision needed to reach an ambitious agreed outcome based on science at the UN climate talks in Copenhagen.” While there was broad agreement on the importance of the Copenhagen negotiations, there were no significant breakthroughs in terms of new commitments to reduce GHG emissions or to provide financial assistance to help developing countries do so. President Obama and Chinese President Hu Jintao joined other leaders in summarizing the many things their countries are doing to reduce the growth of GHG emissions with Hu pledging to reduce the carbon intensity of Chinese economic growth, but not committing to any limits on total Chinese emissions. EU leaders expressed frustration with the failure of the U.S. Senate to act more quickly on cap-and-trade legislation that has passed the House.
On Thursday and Friday leaders of the G-20 countries met in Pittsburgh. While the revelation of the secret Iranian nuclear facility stole much of the show, the leaders did consider a U.S. proposal to phase out subsidies for fossil fuel use. It is estimated that elimination of such subsidies, which are estimated to cost the largest developing countries such as China, India, Russia, South Africa and Iran $310 billion per year, could reduce GHG emissions by 10 to 12 percent. While some of these subsidies are viewed as politically necessary to help the poor meet their energy needs, Indonesia is being held up as a model for replacing the subsidies with direct cash payments to the poor to eliminate their tilt toward fossil fuel use. The final conference communiqué, which can be viewed at http://www.pittsburghsummit.gov/mediacenter/129639.htm calls for further investigation of this initiative and a report at the next G-20 summit.
On Wednesday September 23, the Chevron Corporation announced that it had filed an international arbitration claim against the government of Ecuador in the Permanent Court of Arbitration in the Hague. Chevron bases its claim on what it calls the Ecuadoran government’s “exploitation” of the lawsuit filed by residents of the Oriente region f or environmental damage caused by oil drilling. Chevron is asking the tribunal to enforce its 1998 cleanup agreement with Petroecuador and a bilateral U.S.-Ecuador investment treaty. While Chevron’s move was widely expected, most observers thought it would not occur until after the litigation against the company was concluded in the Ecuadoran courts. Chevron, which initially fought to remove the case from the U.S. courts, now claims that it has no choice because “Ecuador’s judicial system is incapable of functioning independently of political influence.” Ecuadoran attorney general Diego Garcia rejected Chevron’s effort to impugn the integrity of the Ecuadoran judiciary and noted that the plaintiffs in the lawsuit before the Ecuadoran court are not parties to the arbitration proceeding Chevron has initiated in the Hague.
On Friday I moderated a panel on “Climate Change and Other Hot Clean Air Act Issues” at the American Bar Association’s annual fall conference of the Section on Environment, Energy and Resources (SEER) Law. Former EPA general counsel Roger Martella introduced me and I then introduced the panel consisting of former EPA Deputy Administrator Bob Sussman, Bill Becker (president of the National Association of Clean Air Agencies), Environmental Defense Fund General Counsel Jim Tripp and ExxonMobil environmental counsel Clara Poffenberger. Rather than having lengthy presentations from each panelist, we used a roundtable format where I raised a set of issues and asked each panelist to respond. Bob Sussman, who is now a senior policy adviser to EPA Administrator Lisa Jackson, gave EPA’s position, then Bill explained the views of state regulators, while Jim represented the environmental community and Clara reflected the views of an oil company that has been one of the leading skeptics on climate change issues. It made for a lively discussion as we did three rounds focusing on EPA’s actions to regulate GHG emissions, the cap-and-trade legislation in Congress, and EPA’s efforts to control mercury emissions, interstate air pollution and ground level ozone. The panelists then responded to written questions submitted by the audience.
Sunday, September 20, 2009
Climate Summit, Trafigura Settlement & Environmental Education in Tibet
Last week the Sixty-Fourth Session of the United Nations General Assembly convened in New York. On Tuesday September 22nd UN Secretary General Ban Ki-moon is convening a Summit on Climate Change. According to the UN “[t]he objective of the Summit is to create a broader political vision of the urgency for action, and to mobilize the political will needed to reach an agreed outcome at the United Nations Climate Change Conference in Copenhagen this December.” Leaders of the major countries of the world also will meet in Pittsburgh this week for the latest G-20 conference where climate issues will be part of the discussions.
With the December Copenhagen conference rapidly approaching, concerns are being voiced that it may already be too late to reach any truly comprehensive global agreement at Copenhagen on post-Kyoto GHG emissions controls. As climate legislation continues to be subject to delays in the Senate, many people also are becoming pessimistic about the prospects for climate legislation being adopted in Congress this year. I had lunch on Friday in Washington with one of the key participants in the Congressional debate over climate legislation who predicted that if things do not change substantially no legislation will be adopted this year. The protracted debate over health care reform certainly has sapped some of the energy that otherwise would have been devoted to passing climate legislation. Negotiations on both domestic legislation and a new international agreement have been difficult, but this is not unexpected given the difficulty of mobilizing collective action to address problems of such vast temporal and geographic scope as climate change.
Despite growing gloom and doom, one optimistic note is that the U.S. already is making substantial progress in reducing its GHG emissions. In an article in today’s Washington Post, Lester Brown, president of the Earth Policy Institute who normally is not a big optimist on environmental matters, notes that the U.S. already has reduced its carbon emissions by 9 percent over the last two years and that it is poised to make even further cuts due to the rapid growth of alternative energy sources and improvements in U.S. energy efficiency. Lester R. Brown, On Energy We’re Finally Walking the Walk, Washington Post, Sept. 20, 2009 (http://www.washingtonpost.com/wp-dyn/content/article/2009/09/18/AR2009091801143.html). While much of this reduction is due to the economic downturn, it may persist if trends toward improving energy efficiency and investments in renewable energy sources are sustained. Of course, that will depend in part on the future price of oil and whether regulations are adopted that effectively put a price on carbon emissions. Earlier this month Credit Suisse Securities noted that wholesale demand for electricity in the U.S. declined a whopping 15.3 percent in the second quarter of 2009 compared to 2008. Credit Suisse is predicting that 2009 overall will feature a 2.8 percent decline in electricity demand in the U.S., the largest drop since World War II.
This week the British oil trading firm Trafigura abruptly offered to settle a $160 million class action brought in London on behalf of 31,000 residents of the Ivory Coast allegedly harmed by the company’s dumping of hundreds of tons of toxic waste in Abidjan in August 2006. The company previously had been forced to clean up the waste at a cost of $200 million, but thousands of residents of Abidjan claimed that exposure to the waste had caused severe health problems and even some deaths. The case against Trafigura had been scheduled to go to trial in Britain on October 6. Trafigura had blamed the waste dumping on an “independent contractor” and had aggressively threatened to bring libel actions against media outlets who published reports favorable to the claimants. Last Wednesday the Guardian newspaper revealed emails allegedly showing efforts by Trafigura to cover up its involvement in the waste dumping. Trafigura then announced that it had reached a nearly $50 million settlement with attorneys for the plaintiffs. While attorneys for the plaintiffs expressed approval of the settlement, Greenpeace argued that the company still should be prosecuted for manslaughter for deaths caused by the waste dumping.
On Friday afternoon I had drinks with Tashi Rabgey, director of the University of Virginia’s Center for Tibetan Studies. Tashi, a former Rhodes Scholar who is the daughter of a Tibetan monk, is interested in partnering with educational institutions in China to develop environmental education programs in Tibet. I promised to discuss her ideas with Chinese environmental law professors during my trip to China at the end of next month. This week I received confirmation that the paper I am co-authoring with Zhang Jingjing, China country director for the Public Interest Law Initiative, has been accepted for presentation at the IUCN Academy of Environmental Law’s annual colloquium in Wuhan the first week in November.
With the December Copenhagen conference rapidly approaching, concerns are being voiced that it may already be too late to reach any truly comprehensive global agreement at Copenhagen on post-Kyoto GHG emissions controls. As climate legislation continues to be subject to delays in the Senate, many people also are becoming pessimistic about the prospects for climate legislation being adopted in Congress this year. I had lunch on Friday in Washington with one of the key participants in the Congressional debate over climate legislation who predicted that if things do not change substantially no legislation will be adopted this year. The protracted debate over health care reform certainly has sapped some of the energy that otherwise would have been devoted to passing climate legislation. Negotiations on both domestic legislation and a new international agreement have been difficult, but this is not unexpected given the difficulty of mobilizing collective action to address problems of such vast temporal and geographic scope as climate change.
Despite growing gloom and doom, one optimistic note is that the U.S. already is making substantial progress in reducing its GHG emissions. In an article in today’s Washington Post, Lester Brown, president of the Earth Policy Institute who normally is not a big optimist on environmental matters, notes that the U.S. already has reduced its carbon emissions by 9 percent over the last two years and that it is poised to make even further cuts due to the rapid growth of alternative energy sources and improvements in U.S. energy efficiency. Lester R. Brown, On Energy We’re Finally Walking the Walk, Washington Post, Sept. 20, 2009 (http://www.washingtonpost.com/wp-dyn/content/article/2009/09/18/AR2009091801143.html). While much of this reduction is due to the economic downturn, it may persist if trends toward improving energy efficiency and investments in renewable energy sources are sustained. Of course, that will depend in part on the future price of oil and whether regulations are adopted that effectively put a price on carbon emissions. Earlier this month Credit Suisse Securities noted that wholesale demand for electricity in the U.S. declined a whopping 15.3 percent in the second quarter of 2009 compared to 2008. Credit Suisse is predicting that 2009 overall will feature a 2.8 percent decline in electricity demand in the U.S., the largest drop since World War II.
This week the British oil trading firm Trafigura abruptly offered to settle a $160 million class action brought in London on behalf of 31,000 residents of the Ivory Coast allegedly harmed by the company’s dumping of hundreds of tons of toxic waste in Abidjan in August 2006. The company previously had been forced to clean up the waste at a cost of $200 million, but thousands of residents of Abidjan claimed that exposure to the waste had caused severe health problems and even some deaths. The case against Trafigura had been scheduled to go to trial in Britain on October 6. Trafigura had blamed the waste dumping on an “independent contractor” and had aggressively threatened to bring libel actions against media outlets who published reports favorable to the claimants. Last Wednesday the Guardian newspaper revealed emails allegedly showing efforts by Trafigura to cover up its involvement in the waste dumping. Trafigura then announced that it had reached a nearly $50 million settlement with attorneys for the plaintiffs. While attorneys for the plaintiffs expressed approval of the settlement, Greenpeace argued that the company still should be prosecuted for manslaughter for deaths caused by the waste dumping.
On Friday afternoon I had drinks with Tashi Rabgey, director of the University of Virginia’s Center for Tibetan Studies. Tashi, a former Rhodes Scholar who is the daughter of a Tibetan monk, is interested in partnering with educational institutions in China to develop environmental education programs in Tibet. I promised to discuss her ideas with Chinese environmental law professors during my trip to China at the end of next month. This week I received confirmation that the paper I am co-authoring with Zhang Jingjing, China country director for the Public Interest Law Initiative, has been accepted for presentation at the IUCN Academy of Environmental Law’s annual colloquium in Wuhan the first week in November.
Sunday, September 13, 2009
French Carbon Tax, EU Climate Assistance Plan, Global Lead Prices, NY Sea Level Rise
On Thursday French President Nicolas Sarkozy announced that France will impose a carbon tax effective on January 1, 2010. The tax will initially be set at a level of €17 (approximately $25) per ton for emissions of CO2 from the burning of fossil fuels. For each gallon of gasoline the tax would amount to approximately 26 cents in U.S. dollars. In announcing plans for the carbon tax, Sarkozy argued that “We cannot keep on taxing labor, taxing capital and ignore taxes on pollution.” The tax still must be approved by the French Parliament, but this is not considered to be a difficult hurdle. With the tax France will join the ranks of Finland and Sweden who introduced taxes on greenhouse gas (GHG) emissions in the 1990s. French environmentalists reportedly were dismayed that the tax was not higher. A report commissioned by the French government had recommended a carbon tax of €32 per ton that would increase by 5 percent per year until it reached €100 in the year 2030. The lower level of the tax is believed to be a response to consumer opposition to the tax, though Sarkozy announced that rebates would be provided to offset the impact on lower income groups. Sarkozy coupled the announcement of plans for the tax with a call on the European Union to impose carbon taxes on imports from countries who do not agree to reduce GHG emissions.
This week the European Union (EU) unveiled a plan to provide €15 billion per year in assistance to developing countries to help them reduce their GHG emissions. Joshua Chaffin & Ed Crooks, EU Sets out €11 Billion Climate Change Aid Plan, FInancial Times, September 9, 2009. The EU estimates that developing countries will need €100 billion per year to reduce their GHG emissions, but China’s estimates just for its own costs are more than four times larger than that. Particularly controversial was a suggestion that climate change aid from the EU may be paid for by reducing other aid that developed countries otherwise would provided to the developing world.
After soaring in response to China’s temporary shutdown of several large lead smelters, the price of lead plunged 12 percent last week on global markets. Lead closed at $2,115/ton after hitting $2,511/ton on Tuesday, an increase of 151 percent this year. It is estimated that the Chinese shutdowns will keep only approximately 60,000 tons of lead off global markets, less than 2 percent of total Chinese production. Total Chinese production of lead is expected to be 3.14 million tons in 2009.
For a fascinating report on the options New York City is considering to respond to sea level rise, see Robert Lee Holtz, New York City Braces for Risk of Higher Seas, Wall Street Journal, Sept. 11, 2009, at A15. Reviewing forecasts from various international research teams, the report notes that the city could be subject to faster sea level rise than in other parts of the world due to water density and ocean currents. Researchers are debating whether New York should consider constructing storm surge barriers to protect its low-lying port, financial district, subways and power grid.
No need to read the following paragraphs unless you follow the Washington Nationals. I am currently in Miami where I have been visiting my son who is in college here and also watching the Nats take two out of three from the Florida Marlins. On Friday I watched the Nats win their first game of the season at Landshark Stadium, a crushing blow to Marlins hopes of gaining on the Phillies for the division lead. There were probably less than a dozen Nats fans here, but we were treated politely by the Marlins fans. On Sunday my son and I had one odd encounter with a Marlins intern who offered us a free Marlins jersey if we gave him one of the Nats hats we were wearing. We refused - apparently they wanted to do a between innings stunt where they tore up a Nats cap, but none were available for sale at Landshark (my son was wearing his own custom designed Nats hat that says “D.C. Chillin’” on the back).
As the Marlins await the opening of their new stadium in 2012, Landshark Stadium (the stadium’s name has changed several times over the years - now it is named for a niche beer) is even less appealing than RFK was in the final years the Nats played there In a true Miami twist, they passed out bingo cards on Friday night and put bingo numbers up on the scoreboard between innings. Unlike the wholesome Nat Pack, the Marlins Mermaids look like a Las Vegas production number even doing bumps and grinds during the singing of “Take Me Out to the Ballgame.” Despite their diminished fan base, the Marlins have their own version of the Redskins‘ Hoggettes (the Manatees - see http://florida.marlins.mlb.com/fla/fan_forum/manatees.jsp) . It was exciting to see Ian Desmond continue his torrid Nats debut with 5 hits in his first five at bats here (I had to take a photo of the scoreboard when it displayed his batting average of .778) and to see Justin Maxwell and Pete Orr get their first home runs of the year. I must be good luck for the Nats because they have won both road series I attended (in Yankee Stadium and here) despite having a horrendous 21-50 road record overall.
This week the European Union (EU) unveiled a plan to provide €15 billion per year in assistance to developing countries to help them reduce their GHG emissions. Joshua Chaffin & Ed Crooks, EU Sets out €11 Billion Climate Change Aid Plan, FInancial Times, September 9, 2009. The EU estimates that developing countries will need €100 billion per year to reduce their GHG emissions, but China’s estimates just for its own costs are more than four times larger than that. Particularly controversial was a suggestion that climate change aid from the EU may be paid for by reducing other aid that developed countries otherwise would provided to the developing world.
After soaring in response to China’s temporary shutdown of several large lead smelters, the price of lead plunged 12 percent last week on global markets. Lead closed at $2,115/ton after hitting $2,511/ton on Tuesday, an increase of 151 percent this year. It is estimated that the Chinese shutdowns will keep only approximately 60,000 tons of lead off global markets, less than 2 percent of total Chinese production. Total Chinese production of lead is expected to be 3.14 million tons in 2009.
For a fascinating report on the options New York City is considering to respond to sea level rise, see Robert Lee Holtz, New York City Braces for Risk of Higher Seas, Wall Street Journal, Sept. 11, 2009, at A15. Reviewing forecasts from various international research teams, the report notes that the city could be subject to faster sea level rise than in other parts of the world due to water density and ocean currents. Researchers are debating whether New York should consider constructing storm surge barriers to protect its low-lying port, financial district, subways and power grid.
No need to read the following paragraphs unless you follow the Washington Nationals. I am currently in Miami where I have been visiting my son who is in college here and also watching the Nats take two out of three from the Florida Marlins. On Friday I watched the Nats win their first game of the season at Landshark Stadium, a crushing blow to Marlins hopes of gaining on the Phillies for the division lead. There were probably less than a dozen Nats fans here, but we were treated politely by the Marlins fans. On Sunday my son and I had one odd encounter with a Marlins intern who offered us a free Marlins jersey if we gave him one of the Nats hats we were wearing. We refused - apparently they wanted to do a between innings stunt where they tore up a Nats cap, but none were available for sale at Landshark (my son was wearing his own custom designed Nats hat that says “D.C. Chillin’” on the back).
As the Marlins await the opening of their new stadium in 2012, Landshark Stadium (the stadium’s name has changed several times over the years - now it is named for a niche beer) is even less appealing than RFK was in the final years the Nats played there In a true Miami twist, they passed out bingo cards on Friday night and put bingo numbers up on the scoreboard between innings. Unlike the wholesome Nat Pack, the Marlins Mermaids look like a Las Vegas production number even doing bumps and grinds during the singing of “Take Me Out to the Ballgame.” Despite their diminished fan base, the Marlins have their own version of the Redskins‘ Hoggettes (the Manatees - see http://florida.marlins.mlb.com/fla/fan_forum/manatees.jsp) . It was exciting to see Ian Desmond continue his torrid Nats debut with 5 hits in his first five at bats here (I had to take a photo of the scoreboard when it displayed his batting average of .778) and to see Justin Maxwell and Pete Orr get their first home runs of the year. I must be good luck for the Nats because they have won both road series I attended (in Yankee Stadium and here) despite having a horrendous 21-50 road record overall.
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