10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, March 29, 2009

Kiev, China Conference & International Environmental Moot Court

On Monday and Tuesday I participated in the 23rd Biennial Congress of the World Jurist Association in Kiev, Ukraine. The opening ceremonies on Monday were held in Ukraine House, a large conference hall in downtown Kiev. The participants included several officials of the government of Ukraine including Mykola Onishchuk, the Minister of Justice of Ukraine, and Vasyl Onopenko, chief justice of the Supreme Court of Ukraine. Minister Onishchuk gave a spirited speech about the importance of the rule of law. After the ceremonies, I spoke with some of the lawyers in the audience who observed that the legal system in Ukraine is still plagued by corruption even at the highest levels. They were pessimistic about the immediate prospects for reform.

On Tuesday morning I spoke on a panel about how climate change is affecting the development of environmental law around the world. Also on the panel were Alice Skipper, a dynamic young lawyer from Melbourne, Australia who spoke about how the recent bush fires in Australia have brought home the immediate consequences of global warming. Monica Grill from the ministry of foreign affairs of Argentina spoke about the role of forestry protection in efforts to combat climate change. Leslie LoBaugh from Fulbright & Jaworski’s Los Angeles office described California’s ambitious program to control greenhouse gas (GHG) emissions. I spoke about how climate change was influencing the development of global environmental law.

On Wednesday I flew back to the U.S. in time to teach my class at Maryland on Thursday morning (Harvard was on break this week). On Thursday afternoon I spoke at a conference at American University’s Washington College of Law. The conference theme was “Chinese Development and Environmental Challenges: As Goes China, So Goes the World.” My presentation (“Exporting Responsibility for Climate Change: China’s Pre-Copenhagen Gambit”) criticized the argument that China should not be responsible for GHG emissions caused by the production of exported products. I argued that this would be a logistical nightmare to implement, that it was directly contrary to the trend to require producers to take greater responsibility for the environmental impacts of their production decisions and that it violated the “polluter pays” principle that recognizes the importance of internalizing environmental externalities.

On Thursday night I flew to Tampa to meet my former students from Beijing who were the first Chinese students to participate in the finals of the International Environmental Moot Court. On Friday morning I watched the team of Huang Jing and Wang Wanlin from the China University of Political Science and Law (CUPL) defeat a team from Brazil in the second preliminary round of the competition, which was held at Stetson University College of Law. On Friday afternoon I watched the CUPL team defeat a team from India, which enabled them to advance to the quarterfinals of the competition on Saturday morning. In the quarterfinal round the CUPL team lost to a fabulous team from the Law Society of Ireland, the team that ultimately won the competition by beating the team from the University of California-Hastings in the final round. At the awards ceremony following the competition, the CUPL team was recognized for having written the second best applicant’s memorial in the competition. I am so proud of them and thrilled that they carried out the idea I brought with me when I went to China to teach last year -- that CUPL could become the first Chinese law school to enter the competition.

Teams from seventeen schools in ten countries won the right to participate in the international finals, including teams from Brazil, China, India, Indonesia, Ireland, Nepal, Nigeria, the Philippines, Ukraine, and the United States. Following the awards ceremony I took the CUPL students to the beach at Fort DeSoto Park where they were able to unwind and dip their feet into the wind-swept waters of the Gulf of Mexico. We then all had dinner together on the St. Petersburg pier that juts out into Tampa Bay. I was delighted to get to spend some time with my former students from China and I look forward to seeing them again when I return to China in early May.

Sunday, March 22, 2009

Visit to Chernobyl, China and Climate Change

RIght now I am in Kiev, Ukraine to speak at a global jurists conference. On Saturday I spent an amazing day visiting the Chernobyl area, site of the world’s worst nuclear accident that occurred on April 26, 1986. The accident spread radioactive contamination over large areas of Ukraine, Belarus, and Russia, killing 56 people directly (including 47 workers who helped contain the fire). A total of 336,000 people had to be evacuated from the contaminated areas including the 50,000 residents of Pripyat, a town in sight of the damaged reactor which instantly became a ghost town. The town is located in the Chernobyl Exclusion Zone, the 30 km radius around the damaged reactor where humans are allowed to venture only with special permission. The accident now is estimated to have caused $200 billion in damages.

You know it is no ordinary trip when the first order of business is to sign a release stating that you will not hold the tour company or the Ukranian state liable if you or your property suffer radiation contamination. There were 15 people in our group from six different countries - Australia, the U.K., Romania, Spain, Denmark, and six people from the U.S.  

We spent five hours in the exclusion zone, which is just a two-hour drive north from Kiev, Ukraine’s beautiful capital which has 6 million inhabitants.  Our first stop inside the exclusion zone was the town of Chernobyl, headquarters for the response efforts and the town for which the reactors were named. At the time of the accident, four nuclear reactors were operating at the site. The accident occurred in reactor #4. Two additional nuclear reactors (numbers 5 & 6) were in advanced stages of construction and only months from becoming operational at the time of the accident. These had to be abandoned. Reactors 1, 2 & 3 continued operations until the early 1990s with workers shuttled in and out each day by train from a town outside the exclusion zone. They now are shut down and being decommissioned by 4,000 workers who are allowed into the exclusion zone for 15 days each month.  

Our tour started at the Chernobyl information center with our guide describing the accident and its consequences. He showed us detailed maps of the path of radiation contamination and photos taken in the aftermath of the accident. We then left the town of Chernobyl and drove further into the exclusion zone, stopping first at a memorial to the firefighters who responded to the accident. We then drove to the reactor sites, passing through another checkpoint at the 10 km inner exclusion zone.  Just as the reactor buildings started to appear on the horizon we stopped at a site where a small villages had been buried.  After the accident the Soviets ordered that several small villages be destroyed and their contaminated structures buried in the ground. Flags now mark the locations where contaminated structures were buried. Subsequently it was discovered that burying contaminated material in the ground in unlined trenches was not a smart idea because it only accelerated radioactive contamination of the underground aquifer.  The guide also pointed out a large radar structure on the horizon that was the site of a secret Soviet facility to detect U.S. missile launches which had to be abandon in the aftermath of the Chernobyl accident.

Then we continued on to the reactors.  What first appears is a gigantic unfinished cement structure that I thought might be the damaged reactor. Instead it is an unfinished cooling tower for the reactors still under construction at the time of the accident.  Close by the unfinished cooling tower is the nearly finished reactor #5 surrounded by gigantic construction cranes abandoned in the wake of the accident.  

We then went to reactor #4, the site of the accident, which can be viewed from a memorial monument located 300 meters away.   From the outside it is hard to tell that at the bottom of the structure lies a festering mass of some of the most highly radioactive substances imaginable.  In the immediate aftermath of the accident a cement sarcophagus was constructed. With international aid, this has now been reinforced with a structure expected to contain the radiation for the next 100 years. Our guide used a geiger counter to show us that background levels of radiation were twice normal, though below what you get on an airline flight. However, he warned us not to venture any closer because radiation levels rise rapidly beyond the monument, which honors the response workers killed by the radiation they absorbed in fighting the fires. While we were observing reactor #4 another tour bus unloaded several tourists wearing breathing masks and a couple garbed in protective white suits.

We then spent a couple of hours exploring the town of Pripyat where 50,000 people had lived in the shadow of the Chernobyl reactors.  It became a ghost town immediately after the accident, despite initial Soviet promises that residents would be able to return within days.  The town seems frozen in time. When the accident occurred it was preparing for a May Day celebration when a new amusement park and restaurant were supposed to open. We walked through the crumbling remains of the town’s recreation center, a school, apartment buildings, a swimming pool, and a theater, all abandoned at the time of the accident.  Our guide deployed his geiger counter to warn us of radiation hot spots such as moss and chunks of asphalt that still emit as much as 10 times more radiation than their surroundings.  Walking among radiation hot spots and through rooms of broken glass with crumbling floor boards, I realized that U.S. authorities would never allow tourists to take such a tour. It was particularly surreal to see several fading posters, photos and emblems honoring Soviet leaders. Our Ukrainian guide, who had lived nearby (though upwind of the damaged reactor) at the time of the accident, repeatedly reminded us of why the accident and the initial Soviet attempts to cover it up became such a powerful indictment of the communist system.

After visiting Pripyat we returned to the Chernobyl information center and had a late lunch featuring borscht.  Before we could eat lunch we each had to go through radiation screeniing by placing our hands and feet on a machine that measures radioactivity.  After lunch we left the exclusion zone to return to Kiev. The guards at the edge of the exclusion zone guards made each of us go through another round of radiation screening and they also performed a radiation check on our vehicle. A web gallery of photos of my visit to Chernobyl is now available at: http://gallery.me.com/rperci/100427.

Last Monday Li Dao, the top official responsible for climate change at China’s powerful National Development and Reform Commission, argued that the upcoming Copenhagen agreement should not require China to control that portion of its greenhouse gas (GHG) emissions that are generated by production of goods for export. This is the same argument I heard repeatedly last year while giving guest lectures in China emphasizing the need for China to control its GHG emissions (see Archive for the post from June 15, 2008). My response was that it was a dangerous argument for China to use because it invited other countries who have no other means to control Chinese emissions to use China’s failure to do so as an excuse for imposing tariffs or other trade barriers to Chinese products. During a lunch this week a former student who works on trade issues for labor unions confirmed the political saliency of this observation.

Tomorrow South Korea will meet the winner of today’s U.S./Japan game in the finals of the World Baseball Classic. South Korea defeated Venezuela yesterday in the semifinals in Los Angeles. Last Monday my daughter and I were in San Diego to watch a small, but spirited, audience see Cuba eliminate Mexico from the competition. Cuba was itself eliminated by Japan on Tuesday.

Sunday, March 15, 2009

Early Obama Report Card, Climate Change & World Baseball

This week I was contacted by an environmental reporter who wanted my assessment of how well President Obama was performing on environmental issues just seven weeks after his inauguration. I gave him high marks for mentioning the environment in his Inaugural Address (see January 23, 2009 entry) and for moving quickly to undo many of the Bush administration’s last-minute efforts to weaken environmental regulations. These efforts include canceling oil leases near national parks, reconsidering efforts to cut back on consultation under the Endangered Species Act, reconsidering EPA’s denial of a Clean Air Act waiver for California’s program to regulate emissions of greenhouse gases from motor vehicles.

I noted that President Obama so far had not suffered the kind of early stumble or unpleasant environmental surprise that afflicted the early days of the last three administrations. Shortly after taking office in 1989 President George H.W. Bush had to confront both controversy over Alar residues on apples and the Exxon/Valdez oil spill in Alaska. President Clinton stumbled early in 1993 by proposing to abolish the Council on Environmental Quality in order to fulfill a campaign pledge to cut the size of the White House staff by 20%. In early 2001 President George W. Bush quickly abandoned any effort to earn environmental credentials when he repudiated his campaign pledge to control emissions of carbon dioxide to combat climate change. This destroyed the credibility of new EPA Administrator Christie Todd Whitman who had just returned from assuring environmental ministers from other countries that the Bush administration would control CO2 emissions.

Given the global economic crisis, the fact that President Obama also is launching significant new environmental initiatives is a highly positive sign. These include EPA’s recent announcements that it will regulate coal ash as hazardous waste under the Resource Conservation and Recovery Act (RCRA) and EPA’s proposal this week of regulations to require comprehensive reporting of emissions of greenhouse gases under the Clean Air Act. The latter is designed to facilitate the administration’s cap-and-trade program for controlling GHG emissions. While there are somesigns of resistance in Congress to a cap-and-trade plan, the dire warning from scientists this week that climate change may have much more damaging consequences than previously thought is sobering. The fact that EPA has the authority to regulate GHG emissions under the Clean Air Act, thanks to the Supreme Court’s decision in Massachusetts v. EPA, certainly added a new dimension to the political dynamics of this issue.

My daughter Marita and I are in San Diego to attend Round 2 of the World Baseball Classic. After Round 1 was held last week in Tokyo, Toronto, San Juan and Mexico City, teams from eight countries remain in competition. Cuba, Japan, Korea, and Mexico are competing here in San Diego while the Netherlands (the surprise team who eliminated the heavily favored team from the Dominican Republic), Puerto Rico, the United States and Venezuela are competing in Miami. Teams from China, Taiwan, Italy, Australia, Panama, the Dominican Republic, Canada and South Africa were eliminated in the first round. Two teams each from the San Diego and Miami pools will advance to the semifinals and finals to be played at Dodger Stadium in Los Angeles next weekend. Today we saw a replay of the championship game from three years ago when Cuba played Japan. Defending champion Japan once again prevailed over Cuba, this time by a score of 6-0. While Cuba has some of the best hitters in world baseball, the key to Japan’s victory today was its spectacular pitching, including 6 innings of shutout pitching from Daisuke (“Dice K”) Matsuzaka, the Boston Red Sox star. The Japanese fans, among the most vociferous in baseball, greatly outnumbered the Cuban fans, which is not surprising given the extreme difficulty Cubans face in getting permission to travel outside of their country. A gallery of my photos from the game is available online at: http://gallery.me.com/rperci#100419. Tomorrow night we will attend a game between Cuba and the loser of tonight’s game between Korea and Mexico.

This morning we had brunch with Lesley McAllister, an environmental law professor from UC San Diego, and her husband Andrew. It was wonderful to get to see them. Prior to meeting while in graduate school in Berkeley, they both had worked as Peace Corps volunteers in South America, Lesley in Brazil and Andrew in Bolivia. Andrew works on alternative energy issues in California. Lesley, who has written a great book about environmental enforcement in Brazil, will be teaching a short course on comparative environmental law at the Sorbonne in Paris in December.

On Thursday afternoon our family dog Maggie, a vizsla, died suddenly. She apparently suffered a massive stroke and died peacefully in my wife’s arms less than an hour after collapsing. Maggie had been a vital of our family for all twelve years of her life, the usual life expectancy for a vizsla, and we dearly miss her.

Sunday, March 8, 2009

"Golden Tree" Awards, Two Supreme Court Decisions

It snowed this week in Baltimore hard enough to result in the cancellation of Monday’s classes. When I arrived in Boston on Tuesday it looked like New England had received considerably more snow than Maryland, but they are more just to dealing with it up north. On Thursday Maryland’s Environmental Law Program hosted our sixth annual Environmental Law Film Festival. For the past six years students in my Environmental Law class have participated in optional class projects to make short documentary films. Each year the students form small groups to make 6-10 minute films about environmental issues of their choosing. During the fall semester 2008, the students produced more films than ever before - a total of eight films.

Several of the student films highlighted important local environmental issues. "Gunpowder Riverkeeper" by Talley Kovacs and Brooke O'Hanley explored the concerns of local fly fisherman about the environmental consequences of opening a large rock quarry in the watershed of a popular local trout stream. The film won the "Golden Tree" for "Best Cinematography" for its lush video footage of the Gunpowder River basin. "Arsenic and Old Dirt," which won "Golden Tree" awards for "Best Picture" and "Most Educational" film, examined how local authorities are responding to the discovery of arsenic contamination at Swann Park in Baltimore. The film, which was produced by Katy Jackman, Rene Parks, and Rebecca Seitz, featured interviews with residents living near the park, which has been closed to the public while extensive remediation of the contamination is conducted. In "The News," which won the "Golden Tree" for "Best Acting," Joey Chen and Rama Taib posed as network news anchors reporting on environmental issues. The film also featured Carter Beach, assisted by John Archibald, interviewing Shari T. Wilson, Secretary of the Maryland Department of the Environment (MDE), who discussed MDE's priorities.

"Sustainable Harvest," by Natalie Bowman, Lisetta Silvestri, Kim Stefanski, and Lynn McChrystal, visited the Baltimore Farmer's Market. The student filmmakers interviewed farmers about the environmental benefits of producing and consuming locally grown organic produce. The film won "Golden Trees" for "Best Interviews" and "Best Sound." The film "Marvesta Shrimp," produced by Eva Carbot, Aminah Famili, Jesse Iliff, Emily Lipps, Megan Mueller, and Limor Weizmann, focused on efforts by Eastern Shore entrepreneurs to develop more environmentally benign shrimp farming practices. "Urban Legends of the Inner Harbor" asked experts whether it is true that if you fall in Baltimore's Inner Harbor you had better seek immediate medical attention. Andrew Keir, Eric Hergenroeder, Chris Montague-Breakwell, Danielle Einik & Patrick Smith, produced the film.
Some films addressed national environmental concerns. "There Doesn't Have to be Blood" by Jordan Vardon discussed efforts to increase U.S. energy independence by developing renewable energy alternatives to oil. Jordan reports that he has placed his film, which won the "Golden Tree" for "Best Narration," on You Tube where it has acquired "a cult following among friends." The film "GreenCo" by Kim Myers and Scott Yager took a satirical look at efforts by companies to "greenwash" their products through advertising touting their environmental conciousness. The film won "Golden Trees" for "Best Use of Humor" and "Best Use of Animation and Special Effects." It featured a spoof on the GEICO "caveman" ad campaign and a hilarious animated exchange between a Prius and a Hummer debating their respective virtues.

The "Golden Trees" were awarded based on the results of voting by judges who this year included Professors Taunya Banks, Kathleen Dachille, and Kathy Vaughns, as well as Laura Mrozek, Rita Turner, and Megan McDonald. At the awards ceremony each student received a copy of a DVD with copies of all the student films.

This week the U.S. Supreme Court decided two cases with important implications for regulatory policy. On Tuesday the Court ruled 5-4 in Summers v. Earth Island Institute that environmental groups lacked standing to challenge a U.S. Forest Service regulation dispensing with public notice of planned timber “salvage” sales on parcels of public land of less than 250 acres. The decision reinvigorates Justice Scalia’s campaign to keep environmental plaintiffs out of court. This crusade that had been severely damaged in 2007 in Massachusetts v. EPA when Justice Kennedy joined the four Summers dissenters to uphold the standing of states to sue EPA for failing to regulate emissions of greenhouse gases that contribute to climate change. In his majority opinion Justice Scalia never mentions Massachusetts v EPA. In his two-paragraph concurrence, Justice Kennedy makes no effort to explain his vote in Massachusetts v. EPA, stressing only that once the Summers plaintiffs had settled a portion of their lawsuit involving the only specific parcel offered for sale they no longer could demonstrate sufficient injury in fact to establish standing. While the decision will make it harder for environmental groups to challenge decisions on public land management, the Obama administration could always decide to rescind the regulation and resume public notice and appeal procedures.

On Wednesday the Supreme Court voted 6-3 to reject the Bush administration’s efforts to preempt state tort liability for drugs approved by the Food and Drug Administration. This represents a severe blow to the former Bush administration’s efforts to preempt state products liability lawsuits. Preemption would have created a perverse incentive for companies to lobby the FDA even harder to have risky drugs approved because they no longer would have to be concerned about potential tort liability if the drugs proved not to be as safe as the companies had represented them to be.

Sunday, March 1, 2009

Supreme Court Field Trips, Cap-and-Trade Budget Plan

This week I visited the U.S. Supreme Court on Monday and Tuesday with students from my classes at Maryland. On Monday my Constitutional Law class went to the Court to watch the oral argument in United States v. Navajo Nation, a case involving whether the Navajo nation can recover damages against the federal government for mismanagement of royalty payments on coal leases on tribal lands. The case is the latest effort by the Navajo to recover damages for a sweetheart deal for Peabody Coal approved by Interior Secretary Donald Hodel during the Reagan administration. Six years ago the Supreme Court ruled that the Indian Mineral Leasing Act did not provide a damages remedy for this alleged breach of trust. In the current case the Court will decide whether other sources of law, such as federal common law and the Surface Mining Control and Reclamation Act provide such a remedy. The oral argument was not one of the most exciting. Most of the Justices’ questions asked only for factual clarifications and acting Solicitor General Ed Kneedler sat down after only 21 minutes of his opening argument. Nevertheless, as is usually the case, all the Justices except for Justice Thomas ultimately participated in the questioning.

On Tuesday my Global Environmental Law seminar went to the Court to watch the oral argument in Burlington Northern & Santa Fe Railway Co. v. U.S. It represents the Court’s first opportunity to confront the strict, joint and several liability scheme for recovering cleanup costs for releases of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA created the “Superfund” program for cleaning up abandoned dumpsites. The case involves the question of who will pay for the cleanup of a contaminated site owned by a chemical company and a railroad after the chemical company became insolvent. There are two major issues in the case: (1) whether the district court erred in apportioning liability, which left the U.S. government, instead of the solvent railroad, responsible for most of the cleanup costs and (2) whether Shell Oil, which supplied the chemicals that contaminated the property, can be held liable as a company that “arranged for disposal” of them.

As a long-time observer of CERCLA, I was somewhat distressed by the Justices’ apparent lack of knowledge concerning how the statute is supposed to operate. While the concept of holding Shell Oil liable as an “arranger” seems perfectly reasonable under existing caselaw, Justice Breyer argued that it would be tantamount to holding companies that supply computer print cartridges liable if a consumer disposes of them improperly. Yet the prior caselaw seems to have drawn a reasonable distinction between the sale of a useful product that later results in the release of a hazardous substance (where there is no “arranger” liability) and situations where a chemical supplier knows that its chemicals are being spilled during delivery and fails to control the spillage even though it can (where there is “arranger” liability). Surprisingly, counsel for Burlington Northern argued for a new liability test that her client surely would fail (whether it had saved money due to the spillage) and concluded her rebuttal with a highly exaggerated portrait of the typical extent of CERCLA liability.

Each day after the oral argument, several of my students came to my home on Capitol Hill for a buffet lunch. During lunch we discussed the argument. I told war stories about my experiences as a law clerk for Justice White and discussed how the Court has changed in the nearly three decades since I clerked there.

This week the Obama administration unveiled its proposed federal budget. It proposes that Congress adopt a cap-and-trade program for controlling emissions of greenhouse gases (GHGs) and that permits to emit GHGs be auctioned off. This is projected to generate a total of $237 billion in revenue for the federal government by the year 2012 and $645 billion by 2019. The Wall Street Journal editorial board swiftly denounced the proposal as a disguised “carbon tax,” even though most economists seem to believe that a carbon tax is preferable to the kind of cap-and-trade program the administration is proposing.