On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act, legislation to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212. The bill, which adopts a cap-and-trade program, is supposed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050. It reportedly was 1,021 pages long before a 300-page amendment was added to it at 3AM on the morning of the final vote. Many compromises were made in order to win passage of the bill, including distributing 85% of the emissions allowances for free to various groups, including electric utilities, and giving the Department of Agriculture, instead of EPA, responsibility for certifying emissions offsets. Listening to the debate on the House floor, with some opponents characterizing climate change as a scientific hoax and the bill as an effort to destroy the economy, I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments. A group of Nobel prize-winning economists forecast drastic economic consequences, but the Amendments have proven to be one of the most valuable investments the U.S. has ever made in reducing air pollution. A difficult fight awaits the climate legislation in the U.S. Senate where it will be necessary to win 60 votes to block a Republican filibuster. Australia also is having a hard time winning parliamentary approval for its cap-and-trade program to control GHG emissions.
This week EU environment ministers approved a sweeping plan to reduce emissions of sulfur dioxide and other industrial pollutants by nearly a third by the year 2020. It is estimated that the reductions, which will need to be approved by the European Parliament, will provide $38 billion in annual health benefits. The European Commission also announced this week that it will contribute 50 million euros to help China build a pilot carbon capture and storage facility.
Legislation that will impose short-term costs for long-term benefits is always a difficult political sell. This may explain why Congress sometimes has exempted existing sources from compliance with new pollution controls and why many environmental laws were adopted only after highly publicized environmental disasters. To address concerns that countries that do not act to control GHG emissions may gain a competitive advantage over U.S. industries, the bill allows for emission allowance rebates to industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.
On Monday the U.S. Supreme Court decided its final environmental case of the year, ruling 6-3 that a gold mine in Alaska could dump its tailings into a lake as “fill” material, rather than complying with an effluent standard that forbids similar gold mines from discharging tailings into surface waters. The decision means that the environment went 0 for 5 in the Supreme Court this Term, losing to the military, the timber industry, an electric utility, a railroad, and a mining company. The Supreme Court will conclude its current Term on Monday.
On Wednesday I took Harold Koh, former dean of Yale Law School who President Obama nominated to be the State Department’s Legal Adviser, to see the Washington Nationals play the Boston Red Sox at National Stadium in D.C. Harold is a passionate Red Sox fan and a friend of Larry Lucchino, President and CEO of the Red Sox. While we had planned to sit in my seats behind the Red Sox dugout, we ended up watching the game from visiting owners box with Lucchino and some of his other guests. Harold was in high spirits because that afternoon 65 Senators had voted cloture on the hold that had been put on floor consideration of his nomination. As a result a floor vote on his confirmation was held on Thursday afternoon and he was confirmed by a vote of 62-35.
On Thursday afternoon I said goodbye to Zhang Jingjing, one of China’s top public interest environmental lawyers who has been spending the last year in the U.S. as a Yale World Fellow. We met for tea at the Tea Cellar at the Park Hyatt Hotel. After returning to Beijing on Tuesday, Jingjing will become the China country director for the Public Interest Law Institute. On Thursday night I took Vermont Law School Professor Jason Czarnezki to the Nats/Red Sox game. Jason was in D.C. for the orientation program for Fulbright scholars going to China for the next academic year. Jason and his family will be living in Guangzhou while he teaches at Sun Yat-sen University School of Law.
I spent the weekend visiting my in-laws on the Eastern Shore of Maryland. Last night we went to dinner at a wonderful restaurant in the tiny town of Trappe (population 1,146). Shortly after we were seated I looked up and saw, coming back from the restroom, former Vice President Dick Cheney. He and his wife Lynne were dining a few tables away from us with former Defense Secretary Donald Rumsfeld. They both own homes in St. Michaels, Maryland, 19 miles away. They were accompanied by a security detail, which we learned observed from the kitchen the preparation of their food.
Sunday, June 28, 2009
Sunday, June 21, 2009
Vermont/China Project, EU Airports, Yankee Stadium & Iran
On Tuesday night I had dinner with Wang Canfa and Tseming Yang who were in Washington for meetings associated with Vermont Law School’s Partnership for Environmental Law in China. Steve Wolfson from EPA’s Office of International Affairs also joined us. On this trip Professor Wang, my former colleague from the China University of Political Science and Law in Beijing, brought his wife to the U.S. for the first time, though she did not join us for dinner.
Last week a group of 11 companies who own 31 airports in the European Union signed an agreement pledging to make their airports “carbon neutral.” The agreement was announced at the Airports Council International Europe annual conference in Manchester, England. It covers airports with one-quarter of air traffic in Europe. Beginning in 2012, airlines in the EU will be subject to controls on their greenhouse gas (GHG) emissions, but airports, which account for 5% of the EU’s GHG emissions are not covered by these controls.
On Wednesday I traveled to New York City to visit the new Yankee Stadium where my Washington Nationals were playing the New York Yankees. On Wednesday night my daughter and I watched the Nats beat the Yanks 3-2 in an exciting game decided on the very last pitch. On Thursday we had tickets for an afternoon game, but rainstorms delayed its start for five and one-half hours so we had to be on the train back to D.C. before the game, which the Nats won 3-0, started. Due to their series victory, the Nats continue to be the only team in major league baseball with an all-time winning record against the Yankees. The new Yankee Stadium, which we had considerable time to explore during the Thursday rain delay, is quite impressive. It is much larger than the old stadium across the street and the concourses and seating are much more comfortable. The field is almost an exact replica of the old stadium’s field. One strange rule that made us miss the Nats’ batting practice on Wednesday night is that fans are not allowed to bring large purses into the stadium. My daughter had to check hers at a sportings good store across the street.
This week my thoughts have been focused on the political situation in Iran, a country that I visited in May 2001 to participate in a week-long environmental workshop at the University of Tehran. My visit was made possible by the Search for Common Ground, an NGO that focuses on reducing inteernational conflict. At the time the Iranian foreign ministry was controlled by President Mohammad Khatami, a moderate who had been the surprise victor in the 1997 election. While he was re-elected in 2001, his government’s efforts to increase political and social freedoms were consistently obstructed by the conservative Council of Guardians, a group of mullahs who controlled the police and the judiciary and who dictated what candidates could run for office.
When I visited Iran, I was surprised to discover a robust civil society that included more than 230 environmental NGOs. These groups were chafing under the restrictions imposed by the theocratic government that had virtually ignored the country’s burgeoning environmental problems. I met the founder of the first environmental NGO in Iran, the Women’s Society Against Pollution. The group was founded in the early 1970s by a librarian who became interested in environmental law when she discovered that there was no established way to categorize the first book on environmental law that her library received, which forced her to spend time reading the book.
Another striking feature of Iran when I visited in 2001 was that more than half the country’s population had been born after the Islamic Revolution in 1979. These young and generally well-educated Iranians were chafing at the government’s efforts to severely restrict women’s dress, the ability of men and women to meet in private, access to satellite TV, and a national prohibition on alcohol. Many people argued that the government’s efforts to impose religiously-motivated, strict social mores had only fostered corruption and cynicism toward the rule of law. When spiteful neighbors reported mixed-sex parties or alcohol use, the police often used these reports to shake down neighbors for bribes.
I was tremendously impressed by the environmental scientists and lawyers I met in Iran. Yet the one consistent message I received from all Iranians was that anything the U.S. did to try to influence Iranian politics inevitably would backfire and be used by the Islamic hard-liners as an excuse to demonize the West. Thus, I am impressed so far with President Obama’s nuanced response to Iranian protests of what appears to be a stolen election. My own quiet way of supporting some of the terrific environmental professors I met in Iran is to serve as the only U.S. member of the editorial board of the University of Tehran’s International Journal of Environmental Research, an English-language quarterly publication of articles that focus largely on new developments in environmental science and engineering.
Last week a group of 11 companies who own 31 airports in the European Union signed an agreement pledging to make their airports “carbon neutral.” The agreement was announced at the Airports Council International Europe annual conference in Manchester, England. It covers airports with one-quarter of air traffic in Europe. Beginning in 2012, airlines in the EU will be subject to controls on their greenhouse gas (GHG) emissions, but airports, which account for 5% of the EU’s GHG emissions are not covered by these controls.
On Wednesday I traveled to New York City to visit the new Yankee Stadium where my Washington Nationals were playing the New York Yankees. On Wednesday night my daughter and I watched the Nats beat the Yanks 3-2 in an exciting game decided on the very last pitch. On Thursday we had tickets for an afternoon game, but rainstorms delayed its start for five and one-half hours so we had to be on the train back to D.C. before the game, which the Nats won 3-0, started. Due to their series victory, the Nats continue to be the only team in major league baseball with an all-time winning record against the Yankees. The new Yankee Stadium, which we had considerable time to explore during the Thursday rain delay, is quite impressive. It is much larger than the old stadium across the street and the concourses and seating are much more comfortable. The field is almost an exact replica of the old stadium’s field. One strange rule that made us miss the Nats’ batting practice on Wednesday night is that fans are not allowed to bring large purses into the stadium. My daughter had to check hers at a sportings good store across the street.
This week my thoughts have been focused on the political situation in Iran, a country that I visited in May 2001 to participate in a week-long environmental workshop at the University of Tehran. My visit was made possible by the Search for Common Ground, an NGO that focuses on reducing inteernational conflict. At the time the Iranian foreign ministry was controlled by President Mohammad Khatami, a moderate who had been the surprise victor in the 1997 election. While he was re-elected in 2001, his government’s efforts to increase political and social freedoms were consistently obstructed by the conservative Council of Guardians, a group of mullahs who controlled the police and the judiciary and who dictated what candidates could run for office.
When I visited Iran, I was surprised to discover a robust civil society that included more than 230 environmental NGOs. These groups were chafing under the restrictions imposed by the theocratic government that had virtually ignored the country’s burgeoning environmental problems. I met the founder of the first environmental NGO in Iran, the Women’s Society Against Pollution. The group was founded in the early 1970s by a librarian who became interested in environmental law when she discovered that there was no established way to categorize the first book on environmental law that her library received, which forced her to spend time reading the book.
Another striking feature of Iran when I visited in 2001 was that more than half the country’s population had been born after the Islamic Revolution in 1979. These young and generally well-educated Iranians were chafing at the government’s efforts to severely restrict women’s dress, the ability of men and women to meet in private, access to satellite TV, and a national prohibition on alcohol. Many people argued that the government’s efforts to impose religiously-motivated, strict social mores had only fostered corruption and cynicism toward the rule of law. When spiteful neighbors reported mixed-sex parties or alcohol use, the police often used these reports to shake down neighbors for bribes.
I was tremendously impressed by the environmental scientists and lawyers I met in Iran. Yet the one consistent message I received from all Iranians was that anything the U.S. did to try to influence Iranian politics inevitably would backfire and be used by the Islamic hard-liners as an excuse to demonize the West. Thus, I am impressed so far with President Obama’s nuanced response to Iranian protests of what appears to be a stolen election. My own quiet way of supporting some of the terrific environmental professors I met in Iran is to serve as the only U.S. member of the editorial board of the University of Tehran’s International Journal of Environmental Research, an English-language quarterly publication of articles that focus largely on new developments in environmental science and engineering.
Monday, June 15, 2009
Climate Talks, Peruvian Protests,Sara-wiwa Settlement & Tobacco Law
Last week the latest round of global negotiations to draft an agreement on a post-Kyoto greenhouse gas (GHG) control regime for signing at the Copenhagen conference in December concluded in Bonn. Little progress was reported, though the meeting concluded with the parties expressing cautious optimism. Further information is available at: http://unfccc.int/meetings/sb30/items/4842.php. The Japanese government proposed to cut its country’s emissions of GHG by 8% below 1990 by the year 2020, disappointing many environmentalists and other governments, including the Chinese who continue to resist any specific commitment to reduce their emissions. I have posted a description of my views concerning the Chinese position on the blog “Concurring Opinions,” where I am serving as a guest blogger this month (June 13th post on http://www.concurringopinions.com/). The next informal negotiating session will be held in Bonn beginning on August 10.
During the last two months indigenous groups in Peru have been protesting government plans for development of the Amazon region. More than 30 people were killed the week before last as the Peruvian government sought to quell protesters who had blocked a road and an airport. Last Wednesday the Peruvian Congress suspended a law that made it easier to cut down trees in the Amazon rainforest, but the protest intensified on Thursday as the indigenous groups held a National Protest Day in at least a dozen Peruvian cities. The leadership of the government-dominated Congress suspended for three months seven indigenous members of Congress who had been supporting the protests and an indigneous community radio station reportedly has been shut down.
Last week Royal Dutch Shell agreed to pay $15.5 million to settle the Alien Tort Statute lawsuit brought against it for involvement with the Nigerian military in the 1995 execution of environmental activist Ken Saro-wiwa. The settlement was reached just as the trial was about to commence after thirteen years of litigation. I spoke with one of the lawyers who had worked on the case and she expressed considerable excitement about the settlement. Shell maintains that it had no involvement in the execution of Sara-wiwa and eight other Ogoni leaders who had been protesting oil pollution in the Niger Delta. It describes the settlement as a “humanitarian gesture.”
On Friday the U.S. Congress enacted landmark legislation to give the Food and Drug Administration the authority to regulate tobacco products. The law is a response to the U.S. Supreme Court’s 5-4 decision nine years ago rejecting the agency’s conclusion that it could regulate such products because they are “drug delivery devices” to hook smokers on nicotine. This decision contrasted sharply with the Court’s normal deference to agency interpretations of ambiguous statutory provisions. The new law is not without its critics because several compromises were made to win broad support for the legislation, including from some tobacco companies. The FDA will not be allowed to raise the age at which it is legal to smoke (foreclosing the option of declaring a new generation off limits to the tobacco industry by raising the legal age for smoking by one year every year). It cannot ban nicotine entirely or remove menthol flavoring from cigarettes. But in general the legislation is a huge step toward regulating products that kill 400,000 people in the U.S. every year. An interesting news story would be to explore why the political fates of the tobacco and gun lobbies (two of the three members of the “Mod Squad” -- for “merchants of death” -- in Christopher Buckley’s marvelously funny novel “Thank You for Smoking”) have diverged so dramatically in recent years.
On Thursday I took Zhang Jingjing, one of China’s top public interest environmental lawyers, to see the Washington Nationals in a rare comeback win at home. While eating dinner on Capital Hill after the game, we ran into Senator (and 2004 Presidential candidate) John Kerry who spoke with us and posed for a picture with Jingjing. Jingjing, who has been in the U.S. as a Yale World Fellow this year, told Senator Kerry that she attended his recent hearing on climate change and that she understands how important it is that China control its GHG emissions.
During the last two months indigenous groups in Peru have been protesting government plans for development of the Amazon region. More than 30 people were killed the week before last as the Peruvian government sought to quell protesters who had blocked a road and an airport. Last Wednesday the Peruvian Congress suspended a law that made it easier to cut down trees in the Amazon rainforest, but the protest intensified on Thursday as the indigenous groups held a National Protest Day in at least a dozen Peruvian cities. The leadership of the government-dominated Congress suspended for three months seven indigenous members of Congress who had been supporting the protests and an indigneous community radio station reportedly has been shut down.
Last week Royal Dutch Shell agreed to pay $15.5 million to settle the Alien Tort Statute lawsuit brought against it for involvement with the Nigerian military in the 1995 execution of environmental activist Ken Saro-wiwa. The settlement was reached just as the trial was about to commence after thirteen years of litigation. I spoke with one of the lawyers who had worked on the case and she expressed considerable excitement about the settlement. Shell maintains that it had no involvement in the execution of Sara-wiwa and eight other Ogoni leaders who had been protesting oil pollution in the Niger Delta. It describes the settlement as a “humanitarian gesture.”
On Friday the U.S. Congress enacted landmark legislation to give the Food and Drug Administration the authority to regulate tobacco products. The law is a response to the U.S. Supreme Court’s 5-4 decision nine years ago rejecting the agency’s conclusion that it could regulate such products because they are “drug delivery devices” to hook smokers on nicotine. This decision contrasted sharply with the Court’s normal deference to agency interpretations of ambiguous statutory provisions. The new law is not without its critics because several compromises were made to win broad support for the legislation, including from some tobacco companies. The FDA will not be allowed to raise the age at which it is legal to smoke (foreclosing the option of declaring a new generation off limits to the tobacco industry by raising the legal age for smoking by one year every year). It cannot ban nicotine entirely or remove menthol flavoring from cigarettes. But in general the legislation is a huge step toward regulating products that kill 400,000 people in the U.S. every year. An interesting news story would be to explore why the political fates of the tobacco and gun lobbies (two of the three members of the “Mod Squad” -- for “merchants of death” -- in Christopher Buckley’s marvelously funny novel “Thank You for Smoking”) have diverged so dramatically in recent years.
On Thursday I took Zhang Jingjing, one of China’s top public interest environmental lawyers, to see the Washington Nationals in a rare comeback win at home. While eating dinner on Capital Hill after the game, we ran into Senator (and 2004 Presidential candidate) John Kerry who spoke with us and posed for a picture with Jingjing. Jingjing, who has been in the U.S. as a Yale World Fellow this year, told Senator Kerry that she attended his recent hearing on climate change and that she understands how important it is that China control its GHG emissions.
Sunday, June 7, 2009
May 35th Commemoration in China, U.S. BPA Lobby & Climate Talks
I returned to the U.S. on Saturday after two weeks teaching a course in Comparative Environmental Justice at the University of British Columbia in Vancouver. Most of my spare time in Vancouver was spent finishing the new 6th edition of my Environmental Law casebook, which will be published in August.
Thursday was the 20th anniversary of the Tiananmen Square massacre in China in 1989 when the communist government brutally murdered more than 100 students demonstrating for democracy in Tiananmen Square in Beijing. The Chinese authorities went to great lengths to stop any events marking the anniversary, censoring the internet even more extensively than normal and flooding Tiananmen Square with plainclothes police who harassed anyone trying to do interviews or news reports. I watched a CNN International report where the newsman was surrounded by plainclothes thugs opening large umbrellas to try to prevent his cameras from catching any view of the square in the background. The reporter kept dodging and weaving and the plainclothes cops kept tracking his every step, making for a comical display of how paranoid the Chinese authorities are about any mention of the anniversary. A Financial Times reporter reported being pushed and cursed at by plainclothes officers near the square when he tried to talk to a U.S. student spending the summer in Beijing.
News report said that because the words “June 4” were being censored on the internet, students started referring to the anniversary as “May 35th”. I had heard that since organized protests were prohibited, many people in Beijing were planning to wear white on Thursday as a silent way of marking the occasion. When you ask people in Beijing what their recollections are of the event, even students who are too young to remember it will tell you what their parents recall (e.g., “my parents said they made sandwiches and sent them to the students”). I even have met a few Chinese who had been among the student protesters in the square.
In Hong Kong there was a large public candlelight vigil to commemorate the anniversary with more than 100,000 people demonstrating. While Hong Kong is part of the P.R.C. following the end of the British rule in 1997, it enjoys considerably more freedom of speech and freedom of the press. The New York Times reported that for the first time ever the official Chinese media had a mention of the events of 1989 in a story extolling how much more peaceful the area was today. The Wall Street Journal featured an op-ed by a reporter who had been at the square when the massacre occured. She concluded that “[t]he real sign of modernity will come when China opens up its political system enough so that the country’s leaders no longer fear June 4 but treat the Tiananmen uprising with the honor it deserves.” Claudia Rosett, What I Saw at Tiananmen,” Wall St. J., June 4, 2009, at A15.
In lecturing about the development of global environmental law, I often refer to Canada’s chemical testing program and how it has contributed to the growing movement to ban bisphenol-A, a chemical widely used to harden plastics. After test data showed that the chemical may be particularly risky to children, Canada announced last year that it would ban its use in children’s products and Walmart announced that it would no longer carry children’s products that contained the chemical. Last Sunday the Washington Post revealed documents from an industry strategy meeting where lawyers for U.S. chemical producers discussed how to keep the chemical on the market in the U.S. Lyndsey Layton, Industry Lobbyists Devised Strategy to Protect Use of BPA, Wash. Post, May 31, 2009. The strategies mentioned included a $500,000 public relations campaign where their 'holy grail' spokesperson would be a 'pregnant young mother who would be willing to speak around the country about the benefits of BPA’." Also mentioned were “using fear tactics [e.g., Do you want to have access to baby food anymore?’).”
Last Monday another round of preparatory talks for the all-important Copenhagen COP-15 climate conference in December convened in Bonn. Updates are available at: http://unfccc.int/meetings/sb30/items/4842.php. All eyes are on the Chinese delegation, which has been calling on developing countries to slash their emissions of greenhouse gases (GHGs) by 40% by the year 2020 and to contribute between 0.5% and 1.0% of their annual GDP to a fund to compensate developing countries. Fiona Harvey, Climate Focus Turns to Beijing, Financial Times, June 2, 2009.
Thursday was the 20th anniversary of the Tiananmen Square massacre in China in 1989 when the communist government brutally murdered more than 100 students demonstrating for democracy in Tiananmen Square in Beijing. The Chinese authorities went to great lengths to stop any events marking the anniversary, censoring the internet even more extensively than normal and flooding Tiananmen Square with plainclothes police who harassed anyone trying to do interviews or news reports. I watched a CNN International report where the newsman was surrounded by plainclothes thugs opening large umbrellas to try to prevent his cameras from catching any view of the square in the background. The reporter kept dodging and weaving and the plainclothes cops kept tracking his every step, making for a comical display of how paranoid the Chinese authorities are about any mention of the anniversary. A Financial Times reporter reported being pushed and cursed at by plainclothes officers near the square when he tried to talk to a U.S. student spending the summer in Beijing.
News report said that because the words “June 4” were being censored on the internet, students started referring to the anniversary as “May 35th”. I had heard that since organized protests were prohibited, many people in Beijing were planning to wear white on Thursday as a silent way of marking the occasion. When you ask people in Beijing what their recollections are of the event, even students who are too young to remember it will tell you what their parents recall (e.g., “my parents said they made sandwiches and sent them to the students”). I even have met a few Chinese who had been among the student protesters in the square.
In Hong Kong there was a large public candlelight vigil to commemorate the anniversary with more than 100,000 people demonstrating. While Hong Kong is part of the P.R.C. following the end of the British rule in 1997, it enjoys considerably more freedom of speech and freedom of the press. The New York Times reported that for the first time ever the official Chinese media had a mention of the events of 1989 in a story extolling how much more peaceful the area was today. The Wall Street Journal featured an op-ed by a reporter who had been at the square when the massacre occured. She concluded that “[t]he real sign of modernity will come when China opens up its political system enough so that the country’s leaders no longer fear June 4 but treat the Tiananmen uprising with the honor it deserves.” Claudia Rosett, What I Saw at Tiananmen,” Wall St. J., June 4, 2009, at A15.
In lecturing about the development of global environmental law, I often refer to Canada’s chemical testing program and how it has contributed to the growing movement to ban bisphenol-A, a chemical widely used to harden plastics. After test data showed that the chemical may be particularly risky to children, Canada announced last year that it would ban its use in children’s products and Walmart announced that it would no longer carry children’s products that contained the chemical. Last Sunday the Washington Post revealed documents from an industry strategy meeting where lawyers for U.S. chemical producers discussed how to keep the chemical on the market in the U.S. Lyndsey Layton, Industry Lobbyists Devised Strategy to Protect Use of BPA, Wash. Post, May 31, 2009. The strategies mentioned included a $500,000 public relations campaign where their 'holy grail' spokesperson would be a 'pregnant young mother who would be willing to speak around the country about the benefits of BPA’." Also mentioned were “using fear tactics [e.g., Do you want to have access to baby food anymore?’).”
Last Monday another round of preparatory talks for the all-important Copenhagen COP-15 climate conference in December convened in Bonn. Updates are available at: http://unfccc.int/meetings/sb30/items/4842.php. All eyes are on the Chinese delegation, which has been calling on developing countries to slash their emissions of greenhouse gases (GHGs) by 40% by the year 2020 and to contribute between 0.5% and 1.0% of their annual GDP to a fund to compensate developing countries. Fiona Harvey, Climate Focus Turns to Beijing, Financial Times, June 2, 2009.
Monday, June 1, 2009
Alien Tort Claims, China & Climate Change, Vancouver Party
Two events last week placed the activities of multinational oil companies back in the global environmental spotlight. Wednesday was the scheduled start of a trial in federal district court in New York of a lawsuit alleging that Royal Dutch Shell collaborated with the Nigerian military to execute environmental activist Ken Saro-wiwa in 1995. The lawsuit is being brought under the Alien Tort Statute (ATS), enacted by the first U.S. Congress in 1789 to enable foreigners to recover for harm caused to them by U.S. citizens. Wednesday also was the day on which the annual meeting of shareholders of the Chevron Corporation was held and environmental protesters were expected. When it took over Texaco eight years ago, Chevron acquired a long-standing lawsuit against Texaco by residents of the Oriente region of Ecuador. These plaintiffs claim that Texaco’s oil development activities in Ecuador during the 1970s and 1980s created an environmental disaster that persists today and they were expected to protest at Chevron’s annual meeting.
Litigation under the Alien Tort Statute is almost impossible for environmental plaintiffs to win because the Supreme Court set the bar so high when it decided Sosa v. Alvarez-Machain in 2004. The Court held that the Alien Tort Statute can only be used to seek redress for actions that violate “specific, universal, and obligatory” norms recognized as part of the “law of nations” at the time the law was enacted. Both the Second Circuit (in Flores v. Southern Peru Copper Corp. in 2003) and the Fifth Circuit (in Beanal v. Freeport-McMoran in 1999) have held that allegations of severe environmental harm were not enough to give rise to liability under the statute. However, plaintiffs who claimed that the Unocal Corporation had collaborated with the Burmese military’s activities of forced labor, murder, and rape in connection with construction of an oil pipeline won a favorable settlement following an en banc oral argument in the Ninth Circuit (Doe v. Unocal Corp.) that did not go well for the company.
Ironically, the litigation against Texaco began as a claim under the Alien Tort Statute, but the company insisted that the litigation should not be heard by the U.S. courts. As a result, it was dismissed by the Second Circuit on the condition that Texaco agree to let the case be heard by an Ecuadoran court. After years of trial, the court in Ecuador may rule before the end of the year and Chevron is facing potentially $27 billion in cleanup costs. Chevron’s defense is that everything it did in Ecuador was legal and that it spent $40 million on environmental cleanup and was released from further liability by the government of Ecuador in 1992 when Texaco left the country. The plaintiffs claim that this settlement with an over-friendly government does not absolve Texaco of responsibility for the harm their activities caused to individuals. I previously predicted that as foreign courts become more aggressive in handling claims for environmental harm, companies will abandon their former strategy of seeking dismissals on forum non conveniens grounds of lawsuits brought against them in U.S. courts by foreigners. In hindsight Texaco would have been better off litigating the merits of the claims in U.S. courts than appearing before what appears to be an increasingly hostile court in Ecuador.
The start of the Saro-wiwa v. Shell trial has now been delayed until this week. Last December Chevron won a high profile ATS case when a jury in San Francisco ruled in Bowoto v. Chevron Corp. that it was not responsible for human rights abuses when the Nigerian military suppressed an environmental protest against its drilling practices. But win or lose, these cases expose to the glare of international publicity environmental practices that fall short of the standards oil companies use when operating in developed countries. Plaintiffs are making full use of the internet to communicate their point of view. See www.shellguilty.com and www.truecostofchevron.com.
This week House Speaker Nancy Pelosi traveled to China to engage Chinese officials on why it is important that they agree to control their emissions of greenhouse gases (GHG) at the upcoming global Copenhagen conference in December. This is a similar mission to the one that I was on last month when the State Department arranged for me to give two weeks of lectures on environmental law in six Chinese cities. Amusingly, an editorial in this morning’s Wall Street Journal piously declares that “what Beijing actually wants is for developed nations to hobble their own economies with a cap-and-tax regime that would send jobs and billions of dollars a year in transfer payments to China the way Kyoto has.” “Pelosi’s Chinese Climate Change,” Wall St. J., June 1, 2009. After hearing a similar argument in reverse from many Chinese during my trip last month, I realize that this is how the “tragedy of the global commons” occurs when each side accuses the other of wanting to be the free rider. To date, the U.S. is the only developed country that has taken a pass on Kyoto. Hopefully, when the Copenhagen conference takes place in December both the U.S. and China will be global environmental leaders on this issue.
On Friday night I hosted the students in the Southwestern University School of Law Vancouver summer program for a wine and cheese party at my apartment in the Yaletown neighborhood of downtown Vancouver. The party coincided with Game 6 of the NBA playoff semifinals and the students, most of whom are from Los Angeles, were delighted to watch their Lakers eliminate the Denver Nuggets and advance to the Championship round.
Litigation under the Alien Tort Statute is almost impossible for environmental plaintiffs to win because the Supreme Court set the bar so high when it decided Sosa v. Alvarez-Machain in 2004. The Court held that the Alien Tort Statute can only be used to seek redress for actions that violate “specific, universal, and obligatory” norms recognized as part of the “law of nations” at the time the law was enacted. Both the Second Circuit (in Flores v. Southern Peru Copper Corp. in 2003) and the Fifth Circuit (in Beanal v. Freeport-McMoran in 1999) have held that allegations of severe environmental harm were not enough to give rise to liability under the statute. However, plaintiffs who claimed that the Unocal Corporation had collaborated with the Burmese military’s activities of forced labor, murder, and rape in connection with construction of an oil pipeline won a favorable settlement following an en banc oral argument in the Ninth Circuit (Doe v. Unocal Corp.) that did not go well for the company.
Ironically, the litigation against Texaco began as a claim under the Alien Tort Statute, but the company insisted that the litigation should not be heard by the U.S. courts. As a result, it was dismissed by the Second Circuit on the condition that Texaco agree to let the case be heard by an Ecuadoran court. After years of trial, the court in Ecuador may rule before the end of the year and Chevron is facing potentially $27 billion in cleanup costs. Chevron’s defense is that everything it did in Ecuador was legal and that it spent $40 million on environmental cleanup and was released from further liability by the government of Ecuador in 1992 when Texaco left the country. The plaintiffs claim that this settlement with an over-friendly government does not absolve Texaco of responsibility for the harm their activities caused to individuals. I previously predicted that as foreign courts become more aggressive in handling claims for environmental harm, companies will abandon their former strategy of seeking dismissals on forum non conveniens grounds of lawsuits brought against them in U.S. courts by foreigners. In hindsight Texaco would have been better off litigating the merits of the claims in U.S. courts than appearing before what appears to be an increasingly hostile court in Ecuador.
The start of the Saro-wiwa v. Shell trial has now been delayed until this week. Last December Chevron won a high profile ATS case when a jury in San Francisco ruled in Bowoto v. Chevron Corp. that it was not responsible for human rights abuses when the Nigerian military suppressed an environmental protest against its drilling practices. But win or lose, these cases expose to the glare of international publicity environmental practices that fall short of the standards oil companies use when operating in developed countries. Plaintiffs are making full use of the internet to communicate their point of view. See www.shellguilty.com and www.truecostofchevron.com.
This week House Speaker Nancy Pelosi traveled to China to engage Chinese officials on why it is important that they agree to control their emissions of greenhouse gases (GHG) at the upcoming global Copenhagen conference in December. This is a similar mission to the one that I was on last month when the State Department arranged for me to give two weeks of lectures on environmental law in six Chinese cities. Amusingly, an editorial in this morning’s Wall Street Journal piously declares that “what Beijing actually wants is for developed nations to hobble their own economies with a cap-and-tax regime that would send jobs and billions of dollars a year in transfer payments to China the way Kyoto has.” “Pelosi’s Chinese Climate Change,” Wall St. J., June 1, 2009. After hearing a similar argument in reverse from many Chinese during my trip last month, I realize that this is how the “tragedy of the global commons” occurs when each side accuses the other of wanting to be the free rider. To date, the U.S. is the only developed country that has taken a pass on Kyoto. Hopefully, when the Copenhagen conference takes place in December both the U.S. and China will be global environmental leaders on this issue.
On Friday night I hosted the students in the Southwestern University School of Law Vancouver summer program for a wine and cheese party at my apartment in the Yaletown neighborhood of downtown Vancouver. The party coincided with Game 6 of the NBA playoff semifinals and the students, most of whom are from Los Angeles, were delighted to watch their Lakers eliminate the Denver Nuggets and advance to the Championship round.
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