NPC Climate Resolution, China Smelters, North Carolina Nuisance Suit & Kennedy Funeral

Last Tuesday the Standing Committee of China’s National People’s Congress began consideration of a draft resolution on climate change. The resolution recognizes that China’s environment and economy are threatened by climate change, it states that legislation to combat it is important, and it pledges to cooperate with international efforts to do so. “Top Legislature Considers Draft Resolution on Climate Change,” August 26, 2009, at http://www.npc.gov.cn/englishnpc/news/Events/2009-08/26/content_1515539.htm. However, the resolution does not propose anything more specific than greater enforcement of existing laws. Last week Xie Zhenhua, China’s climate change minister, met with Indian environment minister Jairam Ramesh and both criticized developed nations for portraying China and India as obstructing a post-Kyoto climate agreements. Kathrin Hille & Amy Kazmin, China and India Hit Back over Climate Change, Financial Times, Aug. 25, 2009, at 2.

Lead prices soared 12 percent last week to a yearly high of $2,149/ton due to the closure of some lead smelters in China, as discussed in last week’s blog. The Chinese government’s announcement that it would investigate whether other lead smelters in Henan, Hunan, and Guangxi provinces were poisoning children raised fears in international markets that other smelters would be shut down. China is the world’s largest producer of lead.

Earlier this month the Tennessee Valley Authority (TVA) filed its opening brief in its appeal of an important decision requiring TVA to abate emissions from coal-fired power plants in Tennessee and Alabama. In January a federal district judge in North Carolina ruled that emissions from three TVA plants in Tennessee and one in Alabama constituted a public nuisance, while rejecting North Carolina’s claim that other TVA plants, including plants in Kentucky, also were a nuisance. North Carolina v. Tennessee Valley Authority, 593 F.Supp.2d 812 (W.D.N.C. 2009). North Carolina filed the public nuisance action in January 2006 and two years later the Fourth Circuit upheld the district court’s rejection of TVA’s claim that it was immune from suit by a state. North Carolina ex rel. Copper v. Tennessee Valley Authority, 515 F.3d 344 (4th Cir. 2008). While the Supreme Court in 1981 held that the Clean Water Act preempted the federal common law of interstate nuisance, the Court held in 1987 that it did not preempt state common law nuisance actions so long as the common law of the source state is applied. Now that the Clean Air Act has its own comprehensive permit program, the same logic most likely applies to it. Thus, the district court applied the common law of Alabama and Tennessee in reaching its decision. On appeal TVA argues that North Carolina, as a “foreign quasi-sovereign” should not be able to bring an interstate nuisance action premised on the common law of a source state. TVA also argues that the plants cannot be a nuisance so long as they comply with their state-issued permits and it claims that the lawsuit constitutes an impermissible collateral attack on the permits and that the district court’s decision is preempted because it “obstructs and frustrates the methods and goals” of the Clean Air Act. This will be an important case to follow as it fleshes out whether the common law can continue to serve as a backstop when regulatory programs fail to prevent significant environmental harm.

On Saturday afternoon my wife and I (who live on Capitol Hill) walked over to the U.S. Capitol to watch the funeral procession of Senator Ted Kennedy stop at the steps of the U.S. Senate. A large crowd gathered on the Capitol grounds to watch the Kennedy family greet congressional staffers on the Senate steps. While waiting for the funeral procession, the crowd applauded when Senator Robert Byrd of West Virginia arrived. Senator Byrd, who is 91 years old and the longest serving Senator in U.S. history, sat in a wheelchair during the ceremonies. After the funeral procession arrived, the crowd sang “America and Beautiful” and Congressman Patrick Kennedy, one of Senator Kennedy’s sons, thanked everyone. A gallery of photos I took of the event is available online at: http://gallery.me.com/rperci/100489

On Saturday night I went to a dinner at Bruce Rich’s home where he showed spectacular photos of his trip to Iran last year. While they brought back lots of memories of my trip to Iran in 2001, Bruce visited many more parts of the country than I did. His photos can be viewed online at: http://gallery.me.com/brucemrich#100041

Shandong Delegation, Nicaraguan DBCP Litigation, "Energy Citizen" Rallies & Chinese Smelter Protests

On Monday I gave a lecture on water law to a delegation of officials from China’s Shandong province who are in the U.S. for a four-month training course. The 2009 Shandong Public Administration Leadership Development Program is sponsored by the Chinese government and the University of Maryland’s Institute for Global Chinese Affairs in College Park. Two years ago I visited Shandong province when I gave guest lectures at Qingdao University in the beautiful coastal town of Qingdao, famous for its beer (known in the U.S. as Tsingtao) and as the site of the 2008 Olympic sailing competition. I devoted a considerable part of last Monday’s lecture to enforcement issues because they are now such an important concern in China.

On Wednesday the Wall Street Journal published an article following up on the April 2009 dismissal of lawsuits brought in Los Angeles Superior Court against the Dole Food Company for allegedly exposing Nicaraguan banana workers to the pesticide DBCP (1,2-Dibromo-3-Chloropropane). Steve Stecklow, Fraud by Trial Lawyers Taints Wave of Pesticide Lawsuits, Wall St. J., Aug. 19, 2009. DBCP was banned by EPA for use in the U.S. because of its reproductive toxicity. Yet its manufacturer Dow Chemical Co. continued to sell the pesticide to Dole for use in other countries, spawning lawsuits by foreign workers allegedly rendered sterile by exposure to it. Some of these initial lawsuits resulted in multi-million dollar settlements, including a case brought by Costa Rican plaintiffs (Dow Chemical v. Alfaro) that I discuss in my environmental law casebook. As discussed in the Wall Street Journal article, Los Angeles Superior Court judge Victoria Chaney dismissed the latest cases as tainted by pervasive fraud by lawyers and others in Nicaragua who recruited plaintiffs who had never worked on banana plantations, falsified lab reports, and sought to intimidate witnesses who helped expose the fraud.

Nicaraguan courts have awarded more than $2.1 billion in damages to plaintiffs, using Special Law 364 enacted in 2001 to make it easy for plaintiffs to recover in DBCP cases. As described by Judge Chaney, under this law “essentially anyone who obtains two required lab reports stating he is sterile and who claims to have been exposed to DBCP on a banana farm is entitled to damages; causation and liability are conclusively presumed”. Under special procedures prescribed by the law, the defendant must post a $15 million bond and “has just three days to answer the complaint, the parties have just eight days to present evidence, and the court has eight days to issue a judgment.” In light of Judge Chaney’s conclusions concerning pervasive fraud in Nicaragua, it is unlikely these judgments will be enforced by U.S. courts. However, Judge Chaney did specifically state that her conclusions only applied to cases involving Nicaraguan plaintiffs and that no evidence of fraud has been presented involving DBCP plaintiffs from any other country.

The first of the planned 21 “Energy Citizen” rallies organized by the American Petroleum Institute to mobilize energy industry opposition to legislation to control emissions of greenhouse gases (GHGs) was held in Houston last Tuesday. Grist magazine described it as a “glorified company picnic” with supporters of the legislation being barred from attending. http://www.grist.org/article/2009-08-19-houstons-energy-citizen-rally-was-just-a-glorified-company-picni/ On Friday Grist reported that 15 of the organizers of these rallies are registered as lobbyists for members of the American Petroleum Institute or state-level affiliates. http://www.grist.org/article/2009-08-21-energy-citizens-rallies-organized-by-industry-lobbyists/

Fierce protests by parents of lead poisoned children reportedly erupted around two large smelters in China last week. Last Monday angry villagers in Changqing in Shaanxi province reportedly tore down fences and attacked trucks associated with a lead and zinc smelter believed to be linked to high levels of lead found in 851 children living nearby. Lead is a potent neurotoxin associated with a host of developmental difficulties in children. In Wenping, a town in Hunan province, officials closed the Wugang Fine-Processed Manganese Smelting Factory and detained two of its owners after elevated levels of lead were detected in 1,354 children living nearby, nearly 70% of all children tested. The smelter reportedly opened in May 2008 without obtaining any environmental permits. The general manager of the plant is still being sought by police for causing “severe environmental contamination” while the head of the local Environmental Protection Bureau has admitted mistakes in not previously enforcing environmental standards. Cui Jia, Ministries Send Officials to Head Up Lead Poisoning Probe, China Daily, August 23, 2009.

I am currently in Miami, Florida. My family and I flew to Miami on Friday to take our son to start his freshman year of college. While our son is now settled in his dorm room, the rest of us were supposed to be back in D.C. by now. However, our return flight was abruptly canceled this afternoon and we are unable to get another flight until late tomorrow. Fortunately I don’t have to start teaching at Maryland until a week from tomorrow and I only had to reschedule one meeting to accommodate an extra day in Miami.

New Casebook Edition and Supplement Published; Climate Debate Heats Up in Bonn, Canberra & Washington; India's Forest Initiative

On Tuesday and Wednesday of this week, Aspen Publishers released a new edition of my environmental law casebook along with its 2009-2010 statutory and case supplement. The casebook, first published in 1992, remains the most widely-used environmental law text in U.S. law schools, according to Aspen, which also publishes the runner-up. This is the sixth edition of Environmental Regulation: Law, Science and Policy. Between 1992 and 2000 the casebook was on a four-year revision cycle (with new editions appearing in 1996 and 2000), but since 2000 we have prepared new editions every three years (in 2003, 2006 and 2009) because of the rapid pace of developments in the field.

When my coauthors and I began work on the first edition in 1988, we all were teaching environmental law in law schools: Chris Schroeder at Duke, Alan Miller at Widener, and Jim Leape at Utah. Jim is now the Director General of WWF International; Alan is the GEF and Climate Change Coordinator for the International Finance Corporation; and Chris is awaiting Senate confirmation to be assistant attorney general for the Office of Legal Policy in the Justice Department. I remain the only coauthor currently teaching Environmental Law - in fact after this fall I will have taught it for four consecutive semesters for the first time ever (at China University of Political Science and Law, Maryland, Harvard, and again at Maryland), but Chris and Alan continue to make substantial contributions to the revisions.

One big change from the early days of casebook revisions is that the publisher has greatly reduced its lead time for publication. Thus, due to careful advance planning we were able to incorporate fully in the new edition of the casebook and the supplement an important Supreme Court decision (the Coeur Alaska case) issued on June 22, 2009, something I have not seen another casebook or publisher able to accomplish.

This week another important meeting was held in Bonn, Germany to help formulate a post-Kyoto regime for controlling global emissions of greenhouse gases (GHGs) prior to the Copenhagen conference in December. Little progress was made as developing countries continued to reject any effort to include them in GHG controls. India reiterated its adamant opposition to such controls, while Su Wei from China’s National Development and Reform Commission announced for the first time that his country expects its GHG emissions to peak in the year 2050.

Meanwhile on Thursday the Australian Senate rejected a cap-and-trade program to control GHG emissions proposed by the Labor government of Prime Minister Kevin Rudd. The legislation previously had been approved by the Australian House of Representatives. The Green party, which opposed the legislation as not stringent enough, joined the opposition Liberal/National coalition, who argued that no action should be taken until after the Copenhagen conference, in voting to defeat it. However, public opinion polls show that most Australians favor the program, and the Labor government vowed to resubmit it to Parliament later this year. If it is again defeated, the Prime Minister can call an election that he appears likely to win, which may strengthen his hand politically.

Greenpeace, which opposes the U.S. House-passed cap-and-trade legislation as too weak, released an embarrassing secret memo from the American Petroleum Institute (API). In the memo API proposed organizing a series of “town hall” meetings where present and former energy industry employees could be recruited to angrily denounce the Obama administration’s cap-and-trade legislation. The proposal was patterned on the strategy being used by opponents of the Obama administration’s health care reform legislation. One problem with the idea is that API’s members are not unified in their opposition to cap-and-trade and some reportedly objected to the proposal, which may explain why the memo was leaked. Shell, BP America and Conoco Phillips are members of the U.S. Climate Action Partnership, which supports cap-and-trade. Jim Pickard & Kate Mackenzie, Secret Memo Reveals Oil Industry Plan for Anti-Emissions Law Rallies, Financial Times, Aug. 15-16, 2009, at A1.

While India continues to oppose any global agreement to control its GHG emissions, Jairam Ramesh, its minister of state for environment and forests, stated this week that he understands the threat climate change poses to India’s water supply, which is heavily dependent on the monsoon season. This week he announced the establishment of a $2.5 billion fund for the regeneration and management of India’s forests, which absorb 11 percent of India’s GHG emissions (at 1994 levels). Ketaki Gokhale, India Starts $2.5 Billion Forest Fund, Wall St. J., August 14, 2009.

India/China Dialogue, Chinese Lawsuit, Chile FOIA,Climate Change Testimony & Cash for Clunkers

This week India’s environment minister Jairam Ramesh revealed that his country is cooperating with China in a joint effort to study the melting of glaciers in the Himalayas, a critical water resource threatened by global warming. Ramesh is visiting China this month to coordinate opposition to efforts to include developing countries in global limits on greenhouse gas (GHG) emissions at the Copenhagen conference in December. He describes the two countries as a potential “countervailing power” against efforts to extend GHG emissions controls beyond the developed world. James Lamont, New Delhi and Beijing Work to Save Glaciers of Himalayas, Financial Times, Aug. 3, 2009, at 3.

While it is rarely news in the U.S. when a trial court agrees to hear a case, in China if it is a public interest lawsuit it often makes news because courts there so rarely agree to hear them. On July 31 a member of the All-China Environmental Federation announced that a court in Qingzhen, China agreed to hear a lawsuit the group filed against a local government agency to challenge the sale of land to a drink and ice cream processing facility near a scenic lake. While reports of this decision claimed that “China Accepts 1st Environmental Lawsuit Against Government” (see http://www.google.com/hostednews/ap/article/ALeqM5i_In50yqHnCKiougCwRvgdHmkW2wD99PA7R81) in fact there have been other instances where public interest groups in China were able to sue local governments, and some of these suits have been successful. However, this is certainly a welcome development. The case is expected to be heard in the Chinese court in September.

Due in part to the Aarhus Convention, new freedom of information laws have been adopted in many countries. They are now starting to be used to publicize information that can be embarrassing to governments. Recently the environmental group Oceana, using Chile’s new freedom of information act, obtained data from the Chilean government showing that salmon farmers in Chile used far more antibiotics than their counterparts in Norway, Chile’s chief competitor. The antibiotics have been used to combat diseases that have been harming the Chilean fish. Alexei Barrionuevo, Chile’s Antibiotics Use on Salmon Farms Dwarfs That of a Top Rival’s, N.Y. Times, July 27, 2009.

On Thursday the U.S. Senate voted to confirm Sonya Sotomayor as an associate justice of the U.S. Supreme Court by a vote of 61-38. While the Senate floor debate on her nomination was being completed, the Senate Environment and Public Works Committee held a hearing on climate change where it heard testimony from federal officials, the Environmental Defense Fund (EDF) and a midwestern electric utility. Officials from the Federal Energy Regulatory Commission, the Department of Energy and the Department of Interior discussed how their agencies are trying to facilitate renewable energy and carbon capture technology. EDF argued that the costs of complying with a cap-and-trade program will be even lower than previously estimated because the cap will create incentives for technological innovation. The organization’s testimony noted that air pollution control regulations consistently have been far less costly than initially predicted with the 1990 Clean Air Act amendments costing only 21% of predicted costs and three other programs ranging from 7 to 32% of predicted costs. The testimony is available online at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=cdecc040-802a-23ad-4421-dd97594eaafb.

On Thursday night the U.S. Senate, by a vote of 60-37, joined the House in approving legislation extending the “cash for clunkers” program that provides incentives for U.S. auto owners to junk their old cars and purchase more fuel efficient models. Some opponents of the extension argued that it was inefficient to scrap the old vehicles and proposed allowing them to be donated to charities. Of course, this would have undermined the environmental benefits of getting the older cars of the road, as Germany has discovered. Investigators have determined that many of the vehicles supposed to have been junked in Germany’s cash-for-clunkers program actually have ended up in Eastern Europe and Africa because the German program only requires dealers to deliver the old vehicles to junkyards and not to destroy them. Carter Dougherty, Driving Out of Germany to Pollute Another Day, N.Y. Times, Aug. 8, 2009, p. A4. The proposed amendment was rejected in the Senate and the legislation was signed by President Obama on Friday.

On Tuesday I went with Bob Irvin, Vice-President for Conservation Programs at Defenders of Wildlife, to see the Washington Nationals play the Florida Marlins. Coming into the game Florida was 8-0 against the Nats and the Marlins led by 4-0 in the 8th inning of a game in which the Nats had only managed two hits. But the Nats then scored 6 runs in the 8th for a dramatic 6-4 victory. Bob is going on the law teaching market this fall and will be a great asset to any school seeking to beef up its environmental law program.

U.S./China Dialogue, Guangzhou Refinery Stopped, India & Climate Change, Food Safety Legislation

On Monday top officials from China and the U.S. met in Washington for the latest round in the continuing Strategic and Economic Dialogue between the two countries. Press reports indicate that the meetings were quite cordial with the U.S. emphasizing the importance of responding to climate change rather than repeating old arguments about currency manipulation. In reporting on the meetings the Washington Post on Wednesday noted that the two countries are the world’s largest emitters of greenhouse gases (GHGs), but it erroneously stated that neither country had adopted the Kyoto Protocol. China has ratified the Kyoto Protocol and is one of the 187 countries that have accepted it, though the Protocol requires only developed countries (and not China) to limit their emissions during the period it covers (2008-2012). I noted this error in an email to one of the Post reporters who contributed to the article. He thanked me for pointing this out and on Saturday the Post published a correction.

Chinese environmentalists won a significant victory when the Chinese government announced that a $5 billion refinery and petrochemical plant planned by Sinopec and the Kuwait Petroleum Corporation will not be built in southern Guangzhou. Plans to locate the facility there had generated vociferous public opposition. The area, less than 40 miles from Hong Kong, is already heavily polluted. After 14 members of the provincial congress had opposed the facility, environmental officials used information in the environmental impact assessment to question the project’s impact on air pollution. Wang Yang, the provincial party secretary, stated that the decision “reflects how [the province of] Guangdong values environmental protection, the ecology and the opinions of our citizens.” Tom Mitchell, China Bows to Pressure on Refinery, FInancial Times, July 31, 2009.

Indian environmental officials continued to take a hard line refusing to accept any limits on their country’s emissions of GHGs, even as they prepared to unveil new renewable energy targets. The Indian government is expected next month to announce a $19 billion program to expand the use of solar power to 20 gigawatss by the year 2020. However, on Friday India’s environment minister Jairam Ramesh stated that it will be at least ten years before India is willing to accept even limited targets for its GHG emissions. Ramesh stated that the “hypocrisy” of the U.S. and the EU’s failure to meet its own Kyoto obligations will make it easier for India to resist making emission control commitments at the Copenhagen conference in December.

On Thursday the U.S. House of Representatives passed the Food Safety Enhancement Act of 2009 by a vote of 283-142. The bill, which still must pass the Senate to become law, increases the power of the Food and Drug Administration (FDA) to prevent contamination of the food supply and to respond to incidents of contamination. The legislation would require more frequent inspection of food processing and storage facilities, give the FDA the power to order recalls of tainted food, and direct the FDA to create a tracking system to make it easier to determine the sources of contamination.

On Friday I had a farewell lunch with two Chinese law students who have been studying in Maryland this year. Qiu Dan (Joanna) is a student from the Central University of Finance and Economics (CUFE) in Beijing. She has been studying at Maryland this spring as part of our exchange program with CUFE. This summer she has been working as a research assistant for me, providing invaluable help in research aspects of Chinese law. The other students is Siwei, a graduate of Qingdao University who has spent the last year taking courses at Johns Hopkins University prior to starting an LL.M. program next fall at McGeorge School of Law. I first met Siwei in October 2007 when I visited Qingdao to give some guest lectures. While in college Siwei assisted lawyers investigating cases, including a case that resulted in compensation for a land seizure. Both Joanna and Siwei will be returning to China next week. Joanna will finish her final year at CUFE and Siwei will visit relatives before returning to the U.S. in the fall to start at McGeorge.