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