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, October 25, 2009

Global Law Conference & Madeline Albright Keynote, Climate Negotiations, Nigerian Oil Proposal & NAS Study

Last week was International Law Week at the University of Maryland. The week’s activities culminated in a conference on “Multilateralism and Global Law” sponsored by Maryland’s International & Comparative Law Program. On Thursday October 24, former U.S. Secretary of State Madeline Albright delivered the keynote address on “The Role of Law in World Affairs - 2009” to an audience of more than 300 people in Westminster Hall. Secretary Albright gave a terrific presentation reflecting on the significant changes that have occurred in the international law field as a result of globalization. Following her talk, Secretary Albright responded candidly to several questions about global diplomacy. When asked about the prospects for a new global agreement to control greenhouse gases (GHG) emissions at the Copenhagen Conference, she was not optimistic. She noted that she had always thought that the Kyoto Protocol came too late in the Clinton Administration in which she had served and she observed that the Copenhagen Conference may be occurring too early in the Obama Administration. After her address, the Secretary joined a small group of faculty and students for a dinner that I attended.

On Friday October 25 the conference continued with a panel on “Global Environmental Law.” I participated in the panel which also featured Professor Hari Osofsky from Washington and Lee University School of Law and Professor Jutta BrunĂ©e from the University of Toronto’s Faculty of Law. I explored why standards of liability for environmental harm have been one of the least well-developed areas of global environmental law. Hari spoke about how developments at different levels of government are influencing the development of global law and Jutta explored how different nations are interpreting the principle of “common but differentiated responsibilities”.

Professor Jeff Dunoff from Temple gave a terrific lunchtime presentation in which he contrasted three emerging approaches to global law - constitutionalism, global administrative law, and legal pluralism. Jacob Werksman, Director of the Institutions and Governance Program at the World Resources Institute, spoke on the concluding panel of the conference on “The Future of Global Legal Regulation.” Jake has been involved in advising the Danish government on the Copenhagen conference. He noted that in pre-Copenhagen negotiations the U.S. has been arguing that it is more important to have a “bottom-up” approach in which individual countries first develop their own legal mechanisms for controlling GHG emissions rather than pursuing the “top-down” model of the Kyoto Protocol where global commitments are made first and each country then must decide how to fulfill them. Papers prepared for the conference will be published in the Maryland Journal of International Law.

With the Copenhagen conference rapidly approaching, a flurry of pre-conference activity is occurring around the world. The Major Economies Forum (dubbed by environmentalists the “Major Emitters Forum because it included the world’s 17 largest economies) concluded in London with little consensus over levels of financial assistance to provide developing countries to help them reduce their GHG emissions. A conference in Beijing co-sponsored by the Brooking Institution and the China Institute of Strategy and Management on Wednesday and Thursday explored opportunities for greater collaboration by the two countries in developing low-carbon energy technologies.

Last week the Nigerian government proposed to give communities in the oil-rich Niger Delta a 10 percent stake in the national oil company’s holdings in joint ventures to develop oil in that area. The government is proposing to set up a trust fund that can distribute revenues directly to the communities to respond to long-standing complaints that they do not benefit from oil development that has caused substantial pollution in the Delta. The Nigerian government is trying to end civil unrest in the region that has generated attacks on oil facilities in the Delta, cutting production as much as 40 percent recently. Residents of the Delta live in abject poverty and suffer health problems exacerbated by their exposure to natural gas flares from oil production facilities. Only Russia flares more gas than Nigeria, which accounts for 10 percent of the world’s total, adding 40 million tons of GHG emissions to the global total. Many details of the government’s proposal remain to be worked out, but it was hailed as a promising breakthrough (“A Hope for Nigeria,” Financial Times, October 19, 2009) that might generate as much as $330 million annually for the communities.

Last Monday the National Academy of Sciences released an report on the “Hidden Costs of Energy: Unpriced Consequences of Energy Production and Use”. The report estimated that damages to human health from air pollution caused primarily by the burning of fossil fuels may run as high as $120 billion annually in the United States. The report, which was commissioned by Congress, does not include quantitative estimates of the damage caused by climate change or the effects of pollutants such as mercury, but it demonstrates the huge hidden costs of coal and oil use. A copy of the report is available online at: http://www.nap.edu/catalog.php?record_id=12794

Monday, October 19, 2009

Climate Negotiations, Comer & Kivalina decisions, U.S. Business Lobby, Nuclear Power & Chinese Professor

The latest round of pre-Copenhagen climate negotiations concluded a week ago in Bangkok with little progress. But this week there were signs that developing countries were showing some flexibility in the negotiations by dropping their insistence on mandated technology transfer. EU climate negotiators reported that their developing country counterparts are now embracing the concept of joint development of low carbon technologies rather than mandated technology transfer. FIona Harvey, Hopes for Deal on Climate Boosted, Financial Times, Oct. 16, 2009, at 3.

Two new court decisions surfaced this week on common law nuisance actions brought due to harm caused by climate change. In Comer v. Murphy Oil USA, the U.S. Court of Appeals for the Fifth Circuit held that a district court had erred when it dismissed on political question grounds a lawsuit alleging that greenhouse gas (GHG) emissions by oil and chemical companies had added to the ferocity of Hurricane Katrina. The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw,com

A federal district judge in San Francisco has reached a contrary result in a lawsuit by an arctic village seeking damages from oil companies for harmed caused by climate change. In Native Village of Kivalina v. ExxonMobil Corporation, Judge Saundra Armstrong held that while the international dimensions of climate change did not render the case nonjusticiable, the absence of judicially discoverable and manageable standards for holding defendants liable for damages did make it a nonjusticiable political question. The judge also held that the plaintiffs lacked standing in light of the attentuated causal change they alleged between the defendants’ conduct and their injuries. Plaintiffs have vowed to appeal this case to the Ninth Circuit which may well reverse in light of the rejection of the political question grounds by the Second (Connecticut v. American Electric Power) and Fifth (Comer v. Murphy Oil USA) Circuits. A copy of the decision is available on my parallel blog at www.globalenvironmentallaw.com

Debate over cap-and-trade legislation in the U.S. Senate is causing a split within the business community. On Friday Washington Post business reporter Steven Pearlstein wrote a devastating column attacking the campaign the U.S. Chamber of Commerce is waging against the legislation as not representing the true views of the Chamber’s members who are far less than the 3 million it claims. See Steven Pearlstein, U.S. Chamber of Commerce Reaping the WHirlwind, Washington Post, Oct. 16, 2009, at A16.

Support for cap-and-trade legislation is reportedly growing with indications that some Republican Senators may support the legislation if it includes additional subsidies to revive the U.S. nuclear power industry. The German government also reportedly is reconsidering its decision to phase out nuclear power. Last week the U.S. Nuclear Regulatory Commission (NRC) rejected the design of the new AP1000 reactor due to concerns about the adequacy of the containment vessel, which may increase public confidence in the NRC’s efforts to ensure the safety of new reactors.

On Friday I had lunch in Washington D.C. with Professor Wei Guihong, the deputy dean of the Department of Law at the Beijing Forestry University. I first met Professor Wei two and a half years ago when she participated in the Globalizing Clinical Education conference held at the University of Maryland School of Law. She has been spending the last year in the United States researching public interest law at Georgetown University, working primarily with Professor Philip Schrag. Professor Wei had just returned from a conference in Portland, Oregon. She will return to Beijing at the end of the month and she is interested in promoting the use of conservation easements in China. She also is interested in biodiversity and forestry protection law.

Monday, October 12, 2009

Venezuela Trip & Maryland Conference

Early this morning I returned to D.C. after a whirlwind weekend trip to Venezuela. I took my son Richard, who was born in Paraguay, to see the Paraguayan national soccer team play its penultimate World Cup Soccer qualifier against Venezuela. Richard is a freshman at Florida International University in Miami and we planned this trip several weeks ago, thinking it would be a critical game for the Paraguayan team. However, because Paraguay upset Argentina last month it already had qualified to play in the World Cup, which will be held this summer in South Africa. Thus, the game meant much more to Venezuela, the only country in South American that has never appeared in the World Cup.

On Thursday I flew to Miami and picked up my son and we flew to Caracas on Friday morning. We spent Friday night visiting with my friend Xu Kezhu, whose husband is the Chinese consul to Venezuela. Professor Xu was the deputy director of the Center for Legal Assistance to Pollution Victims (CLAPV) in Beijing until she moved to Venezuela in January to join her husband. I last saw her in December where she took me to see the world famous Venezuelan Youth Symphony perform at the National Center for Performing Arts (“the Egg”) in Beijing. On Friday night Professor Xu and her husband took Richard and I to see a Chinese shadow puppet troupe, the Folkloric Arts Company of Shaanxi, perform at the Teatro Municipal in Caracas. After their terrific performance, we went backstage and met the performers who gave us an opportunity to try manipulating their shadow puppets. We then fought a horrendous traffic jam in downtown Caracas before meeting Professor Xu’s son who joined us for dinner at a local Chinese restaurant. It was really great to see Professor Xu and to meet her family. She told me that she plans to return to public interest environmental law practice in China when her husband’s posting is completed in a few years.

Two weeks ago it was announced that the Venezuela/Paraguay soccer game would be played in Puerto Ordaz, Venezuela, nearly 400 miles southeast of Caracas. As a result on Saturday we had to leave Caracas at 6AM to embark on a 9-hour trip to Puerto Ordaz. When we stopped for gas I was astonished to discover how cheap it is due to nationalization of the oil companies and heavy government subsidies. A liter of 91 octane gasoline costs .079 bolivares, the equivalent of less than .30 bolivares per gallon or less than 14 cents in US currency at the official exchange rate of 2.14 bolivares per dollar (or less than 6 cents at the black market rate of more than 5 bolivares per dollar). High octane (95) premium gasoline cost .009 bolivares per liter or less than 16 cents per gallon (official exchange rate, 6.5 cents at the black market rate). While Venezuelans seem proud that their gasoline costs less than water, it results in their country being the refuge of gas guzzlers that generate considerable pollution and enormous traffic jams in Caracas. No one will be crazy enough to buy a hybrid vehicle when you can fill your tank up for less than a dollar. With everyone invested in a culture of astonishingly cheap gasoline, eliminating the subsidies would be an enormous political challenge.

After hours of traversing southeastern Venezuela, crossing the Orinoco River we finally arriving in Puerto Ordaz, a town near the Guyana border. We proceeded directly to Cachamay Stadium where we arrived two hours before gametime. Every seat already was occupied by more than 40,000 wildly cheering Venezuelan fans. My son wisely opted to buy a Venezuelan hat so as not to attract unwanted attention as one of the very few Paraguayan fans present (he declared that the hat would be a present for a classmate from Venezuela after he returned to Miami). He did find a Paraguay jersey that he purchased, but he wisely returned it to the car rather than wearing it into the stadium. Paraguay played brilliantly, but the game was scoreless at halftime. In the second half Paraguay scored two goals and their goalie blocked a Venezuelan penalty kick, sending local supporters of the “vinotinto” (the charming nickname for the Venezuelan team because they wear burgundy jerseys the color of red wine) streaming for the exits. A few came back when Venezuela scored a late goal, but the game ended with a 2-1 Paraguay victory, putting the Paraguayan Guarani in a tie for first place in the South American group. After staying overnight in Puerto Ordaz, we left at 4AM on Sunday to return to Caracas in time for our flight back to the U.S. Photos of our trip are available online at: http://gallery.me.com/rperci#100567

Prior to leaving for Venezuela on Thursday, I attend the opening of a terrific conference on “Regulatory Dsyfunction” that our Environmental Law Program co-sponsored with the Center for Progressive Reform. The conference was organized by my colleague Rena Steinzor, president of the Center for Progressive Reform, which has done a fabulous job of promoting the public interest in regulatory issues. The conference included representatives of EPA, OSHA and the Consumer Products Safety Commission (CPSC), who discussed the problems confronting each of their agencies, prominent academics and environmental activists. Because I had to teach a class and catch a plane, I was only able to attend a brief part of the conference. While the discussions were off the record, what struck me was the extent to which international issues have affected each agency. OSHA has wrestled with how to harmonize hazard communication requirements with international standards. The CPSC is dealing with a host of issues raised by imports of hazardous consumer products. EPA is considering TSCA reform against the backdrop of the EU’s path-breaking REACH program that will generate far more test data on chemicals than EPA currently has. Globalization is clearly having a profound effect on regulatory policy.

Sunday, October 4, 2009

Justice & Global Economy Program, Chinese Scholar, Senate GHG Bill and EPA GHG Regulations

On Saturday afternoon I participated in a program on “Justice and the Global Economy” to mark the inauguration of Maryland’s new law dean Phoebe Haddon. More than 500 people attended the program which was held at the spectacular new student center on our campus in downtown Baltimore. The audience included prominent members of the Maryland legal and governmental communities and many of Dean Haddon’s former colleagues from Temple University.

The program featured talks by Dean Haddon, Congressman Elijah Cummings, and a keynote address by U.S. Trade Representative Ron Kirk. Kirk explained why global trade is important to the U.S. economy, noting that 95 percent of all the world’s consumers live outside of the U.S. Prior to his address I made a presentation on environmental justice and the global economy as part of a panel with Hogan & Hartson partner Louis Lebowitz and my colleague Shruti Rana. I noted that environmental groups split over trade liberalization with some believing it would encourage production to move to countries with lax environmental standards, generating pressure to relax domestic environmental regulation. Other environmentalists believed that free trade agreements created an opportunity to establish new institutions to highlight lax enforcement of environmental standards in other countries. While trade liberalization has produced mixed results to date, I argued that it would be crucial to achieve consensus at Copenhagen on a new global regime of controls on greenhouse gas (GHG) emissions that satisfies the legitimate concerns of developing countries without sparking renewed protectionism.

On Wednesday Professor Zhang Shijun from Shandong University arrived at Maryland to begin a year serving as a visiting environmental law scholar. Just hours after arriving in Maryland, Professor Zhang and I attended a reception for visiting faculty which gave him an opportunity to introduce himself to my colleagues. On Wednesday afternoon he attended my Environmental Law class and on Wednesday evening my assistant Suzann Langrall hosted a wonderful dinner for him at her home near campus. Suzann is helping to organize a trip to China that we will be taking with our environmental law students and alums during spring break next March. On Tuesday we hosted an informational session for people interested in the trip where we showed photos and video from the previous Maryland law trip to China in March 2008.

On Wednesday Senators Barbara Boxer and John Kerry, chairs of the Senate Environment and Foreign Relations committees respectively, unveiled draft legislation to be considered in the Senate this fall that would cap and reduce GHG emissions. They proposed GHG reductions somewhat more ambitious than those approved by the House of Representatives in June. Their proposal has many details that remained to be specified, including how emissions allowances would be distributed. On the same day EPA Administrator Lisa Jackson announced that she had approved a notice of proposed regulations to regulate under the Clean Air Act GHG emissions from sources that emit more than 25,000 tons per year. The proposed regulations, which are available online at: http://www.epa.gov/nsr/documents/GHGTailoringProposal.pdf, are likely to put more pressure on Congress to approve its own program to control GHG emissions. However, later in the week Obama climate and energy czar Carol Browner expressed the view that it was unlikely that there will be sufficient time for Congress to agree on new GHG control legislation prior to the Copenhagen conference in December.

Today marked the end of the Major League Baseball regular season, except for a one-day playoff that will be held in Minnesota on Tuesday between the Twins and the Detroit Tigers. The team I root for, the Washington Nationals, became the first team in baseball history to both start a season with seven straight losses and to end it with seven straight wins. On Saturday morning I was delighted to attend our law school’s annual 1L softball tournament where more than 200 students from each of the ten first year small sections competed. Congratulations to Professor Deborah Hellman’s Section G, which won the tournament.