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, November 29, 2009

Fox News Appearance, Australian Climate Legislation, U.S. & China Pre-Copenhagen Pledges & Remembering Tom Graff

On Monday November 23, I was quoted in an article in USA Today about climate change litigation in the wake of of the Fifth Circuit’s decision in the case of Comer v. Murphy Oil USA. After a widely-read conservative blogger attacked me on Tuesday for being quoted as saying that the litigation was “difficult”, I was invited to appear live on Fox Business News on Wednesday to discuss “green lawsuits”. I was interviewed from the Fox News studio in Washington by Stewart Varney, who was in New York. He apparently was not well-briefed on who I am because he accused me of being the inspiration for the lawsuits, which he claimed were mere “grandstanding” to undermine the political process. I noted that I was not involved in the litigation, but that throughout U.S. history citizens have turned to the courts when severe environmental problems emerged that were not being addressed by the regulatory system. He then bizarrely asserted that it was only my opinion that climate change had yet to be addressed by the regulatory system. Varney then argued that the U.S. should require unsuccessful plaintiffs to pay defendants’ attorneys fees (the English rule) in order to deter such “frivolous lawsuits” that clog the courts. I responded that more environmental lawsuits are brought by business interests seeking to reduce regulation than by environmentalists seeking to strengthen it and that our legal system is “the envy of the world,” as I well understand from my experience in China.

Watching the pre-Copenhagen debate it is striking how the climate change deniers have been trying to spin the purloined emails from the University of East Anglia and polls showing a decline in public support for cap-and-trade as somehow confirming that climate change does not exist. Actor Ben Stein, representing the deniers on CNN, claimed that they now represent the “truth lobby” rather than what James Carville called the “pollution lobby.” In light of the massive advertising campaign by opponents of GHG limits, a decline in public support for cap-and-trade is not surprising, but clear majorities in both political parties, and virtually all world leaders still acknowledge the importance of limiting GHG emissions.

Australia’s governing Labor party and the opposition Liberal party reached agreement this week on compromise legislation to cut GHG emissions by 25 percent from 2000 levels by the year 2020. The deal was accomplished through significant compromises, including exempting agriculture from GHG controls, nearly doubling the emissions allowances given for free to power companies, and increasing subsidies to industries (including the coal industry) perceived to be harmed by the legislation. While it remains unclear whether the legislation will win enactment right away (some Liberal senators are breaking with their party’s leadership and arguing that parliament should wait to see what happens in Copenhagen), the legislation includes a carbon tax commencing in 2011.

Both the U.S. and China revealed what they are willing to do to reduce their emissions of greenhouse gases (GHGs) prior to next week’s Copenhagen conference. In line with the Waxman/Markey bill that passed the House in June, President Obama announced on Wednesday that the U.S. would reduce its GHG emissions by 17 percent below 2005 levels by 2020. He also promised to attend part of the Copenhagen conference while on his way to Sweden to accept the Novel Peace Prize. China announced that Premier Wen Jiabao would attend the Copenhagen conference. While China did not pledge to reduce the absolute level of its GHG emissions, it announced that it would seek to reduce the “carbon intensity” of its economy (levels of CO2 emissions per unit of gross domestic product) by 40 to 45 percent by 2020. Both the U.S. and Chinese pledges were viewed by observers in glass-half-empty/glass-half-full terms. They represent progress in the sense that for the first time both nations - the two largest emitters of GHGs in the world - have made serious promises to the international community to start controlling their emissions. Yet they are disappointing to many environmentalists because they clearly are inadequate to achieve the global goal of containing global warming to no more than 2 degrees Celsius. People in the know in China report that the U.S. had proposed to the Chinese leadership that the two countries package their proposals together as part of a “G-2” effort to influence the Copenhagen negotiations, but that the Chinese insisted that any coordination should be done in the larger context of the G-20.

The growing partisan divide on climate change and other environmental issues makes one nostalgic for the days when groups like the Environmental Defense Fund (EDF), my former employer, were able to obtain high-level support from all parts of the ideological spectrum for aggressive environmental protection initiatives. EDF attorney Tom Graff, who died this month after a long battle with cancer, reveled in building diverse coalitions to support innovations in water management policy. Tom helped hire me to join EDF’s Berkeley office in 1981, though I never actually ended up there when the organization decided that it would be best for me to stay in D.C. due to the arrival of the Reagan administration. Even though his ideas often upset entrenched interests, Tom was someone who commanded enormous respect from everyone. He will be sorely missed by EDF, which has lost nearly all of its most experienced legal talent, and by the global environmental community.

Tuesday, November 24, 2009

Houck Book, South Korea & Russia GHG Reductions, Jordan ABA Project & Visiting Chinese Delegation

On Monday morning November 16 I had breakfast with Professor Tseming Yang to discuss progress on our Global E On Monday morning November 16 I had breakfast with Professor Tseming Yang to discuss progress on our Global Environmental Law casebook. Tseming was in D.C. for the 100th anniversary of the Justice Department’s Environment and Natural Resources Division where he formerly worked. We are making good progress on the Global Environmental Law casebook with the complete manuscript due by April 1, 2010.

I am delighted that a new book that makes a major contribution to the growing literature on global environmental law has been published. The book is Tulane Professor Oliver Houck’s Taking Back Eden: Eight Environmental Cases that Changed the World. It is now available from Island Press. Professor Houck contacted me this week to compare notes on our parallel work on global environmental law. I mentioned to him that I had been one of the anonymous reviewers of his book manuscript for two different publishers to whom I enthusiastically recommended that the book be published. Professor Houck is a gifted writer and his book tells remarkable stories about courageous individuals who used law to tackle daunting environmental problems in several countries including the U.S., Russia, Japan, Chile, India and Greece. Information concerning how to order a copy of the book is available online at: http://www.islandpress.com/bookstore/details.php?prod_id=1918

Last week South Korea and Russia announced new plans to reduce their emissions of greenhouse gases (GHGs) prior to the start of next month’s Copenhagen Conference. On November 17 South Korea announced that it plans to reduce its emissions of greenhouse gases (GHGs) by 30 percent below uncontrolled levels by the year 2020, which will represent a 4 percent reduction over its 2005 emissions. At a summit between the EU and Russia in Stockholm Russian leaders offered to reduce their country’s GHG emissions by as much as 25 percent if other large countries agree to do the same.

At the end of next week I will be traveling to Jordan on a project for the American Bar Association’s Rule of Law Initiative. I will be assisting Jordanian law professors in the design of their environmental law curricula. In preparation for the trip to Jordan I met on Friday morning with lawyers from EPA’s Environmental Appeals Board who also will be in Jordan conducting an environmental law training course for Jordanian judges and law professors. On Sunday morning I had a conference call with the ABA staff in Jordan to discuss preparations for the trip.

On Saturday night I had a reunion with some of my former EDF colleagues at the home of NRDC scientist Linda Greer. She hosted a dinner party for a delegation of 14 visiting environmental professionals from China. The delegation included Chinese public health officials, scientists, lawyers and professors who are working to combat lead poisoning problems in China. As previously reported (see August & 30 postings) concern over lead poisoning has led to the temporary closure of some lead smelters in China. The group, which was led by Alex Wang from NRDC’s Beijing office, visited the St. Louis area and the Doe Run lead smelter in Herculaneum, Missouri as well as the excellent environmental law clinic at Washington University. They also came to Baltimore and visited the city health department to obtain information on how Baltimore has responded to lead poisoning problems.

Sunday, November 15, 2009

Rethinking Copenhagen, Anti-Smoking Progress Stalls, Vieques Health Risks & Environmental Law Winetasting

Today at the Asian-Pacific Economic Cooperation summit in Singapore, President Obama agreed to a proposal by Lars L√łkke Rasmussen, the prime minister of Denmark, to postpone seeking a new, legally-binding global treaty to reduce emissions of greenhouse gases (GHGs) at the Copenhagen climate conference next month. The decision reflects the reality that insufficient progress has been made in preliminary negotiating sessions, including one earlier this month in Barcelona, to prepare the way for a global consensus on a new treaty. Instead the participants in the Copenhagen summit will try to save face by announcing a “politically binding” consensus on GHG controls that will leave many difficult issues to be resolved in subsequent negotiations. Optimists are maintaining that this delay will enable the 192 nations participating in the negotiations to “get it right” rather than being pressured into hasty compromises at Copenhagen, which will be the 15th Conference of the Parties (COP-15) to the UN Framework Convention on Climate Change. The focus of efforts to negotiate a binding global agreement will now shift either to Mexico City, where COP-16 will be held in December 2010, or to an interim summit that may be scheduled for spring 2010.

Earlier in the week the International Energy Agency (IEA) had warned that carbon allowance prices must double from current levels in Europe by the year 2020 in order to facilitate a true transition to renewable energy alternatives. The IEA projected that allowance prices would have to reach $50 per ton by 2020 and $110/ton by 2030 in industrialized countries, and in developing countries $30/ton by 2020 and $50/on by 2030. On Friday Brazil pledged to cut its contribution to global warming and climate change by 36 percent below levels previously projected for 2020.

On Thursday the U.S. Centers for Disease Control announced that the steady decline in the percentage of U.S. adults who smoked had been slightly reversed in 2008. In the mid-1960s, 40% of U.S. adults smoked, a percentage that has been steadily declining since then and that CDC had hoped to reduce to 12% by the year 2010. However, in 2008, 20.6% of U.S. adults smoked, an increase from 19.8% in 2007. It is hoped that the April 2009 increase in the federal excise tax on cigarettes from 39 cents to $1.01 per pack coupled with eventual FDA regulations will help reverse this temporary setback. CDC noted that while states have received more than $200 billion in revenue from cigarette taxes and the 1998 Master Settlement Agreement since 2000, they spend less than 3% of this revenue on preventing tobacco use.

On Friday the Agency for Toxic Substances and Disease Registry (ATSDR) reported that it could no longer be confident that environmental contamination at the former Naval training ground on the island of Vieques, Puerto Rico posed no risk to human health. Residents of the island, who formerly protested the Navy’s use of it for target practice prior to it being declared a Superfund site in 2004, have been found by Puerto Rico’s Health Department to have elevated rates of cancer, hypertension and liver disease. Mireya Navarro, Navy’s Vieques Training May Be Tied to Health Risks, N.Y. Times, Nov. 14, 2009, at A14.

On Friday November 13, the University of Maryland Environmental Law Program held its 17th annual Environmental Law Winetasting. More than 150 faculty, alumni, and students attended the event, which featured more than 70 different wines from around the globe, including many from my wine cellar. Among the wines included in the tasting were a 1982 Chateau Mouton Rothschild, a 1978 Chateau Beaucastel Chateauneuf du Pape, a 1984 Chateau Martgaux, and a 1970 Graham’s vintage port. The Environmental Law Program began the annual winetasting event in 1992, coining the slogan “Wine - Nature’s Thanks for Preserving the Earth.” Participants blind tasted a “mystery wine,” which this year turned out to be a 2007 Gran Hazana garnacha from Spain.

Thursday, November 12, 2009

IUCN Wuhan Colloquium, CLAPV 10th Anniversary Conference, Ma Jun & China's Richest Man

On Sunday night I returned from China after speaking at conferences in Shanghai, Wuhan and Beijing. On Sunday November 1 I flew from Shanghai to Wuhan to attend the seventh annual Colloquium of the IUCN Academy of Environmental Law. My original flight to Wuhan on Sunday morning had been canceled, but I was able to get on a flight leaving just an hour later which enabled me to escape the sudden snowstorm that hit Beijing later in the day. As a result of the snowstorm my friend Zhang Jingjing, from the Public Interest Law Institute (PILI) was unable to make it to Wuhan in time for what was to be our joint presentation at a plenary session of the IUCN Colloquium on Monday morning. I gave our presentation on “Towards Global Liability Standards for Environmental Harm” by myself. The presentation explored why, despite the rapid advance of global environmental law, little progress has been made in establishing global standards holding polluters liable to victims of environmental harm.

The IUCN Colloquium was attended by nearly 200 environmental law professors from all corners of the world. The opening sessions on Monday were held at Wuhan University, the host of this year’s colloquium. On Tuesday, Wednesday and Thursday, the remaining colloquium sessions were held at the East Lake Hotel, an impressive and historic set of buildings located on the shore of China’s largest urban lake. The hotel contained lots of photos of Chairman Mao from when he lived in the hotel in the late 1950s. With presentations from more than 150 participants, the colloquium provided a wonderful snapshot of developments in environmental law in many different countries. Among the presentations that I found to be particularly interesting were those on the development of environmental courts in China and other countries, NRDC’s work creating a Pollution Information Transparency Index for China, and a discussion of Singapore’s successful effort to limit motor vehicle congestion through electronic congestion charges and vehicle permit auctions. Abstracts and papers presented at the Colloquium will be available online in the near future at the Academy’s website located at: http://www.iucnael.org. The Colloquium gave me an opportunity to catch up with many of the Chinese professors I have come to know from my work there and the chance to meet many new professors from different countries who have now joined the Academy.

The Colloquium also featured a tree-planting ceremony and tribute to the late Professor Han Depei, who had pioneered the teaching of Environmental Law in China. Professor Han, who taught at Wuhan University, died last spring at the age of 99. On Wednesday afternoon participants in the Colloquium went on a field trip to the Wuhan Steel Beihu Outfall Wastewater Recycling Project.

On Thursday afternoon November 5 I flew from Wuhan to Beijing to participate in the tenth anniversary celebration of the founding of the Center for Legal Assistance to Pollution Victims (CLAPV). CLAPV is a public interest environmental group in Beijing that operates a hotline fielding complaints about environmental problems from all over China. It also serves as an environmental law clinic for the China University of Political Science and Law (CUPL) where I taught as a Fulbright scholar while on sabbatical last year. On Friday morning I visited CUPL for a reunion with some of my former students. I met the team that is preparing to come to the U.S. for the International Environmental Moot Court Competition in March 2010. We had lunch together and then I made a quick sightseeing trip around Beijing, visiting the new Qianmen Street development south of Tiananmen Square, as well as the Apple Computer Store in the Sanlitun district.

On Saturday morning I participated in the opening ceremonies for the conference celebrating the tenth anniversary of CLAPV. Nearly 200 lawyers, government officials, and professors took part in the conference. A Beijing TV personality moderated the opening ceremonies which featured a 20-minute documentary film about CLAPV’s work and tributes to CLAPV’s founder Wang Canfa from government officials, university colleagues and former clients. One of the former clients, a farmer whose orchard had been damaged by pollution, presented Zhang Jingjing with fresh organic produce from his farm. On Saturday afternoon I attended conference sessions focusing on obstacles facing public interest litigation and the development of environmental courts in China. On Sunday morning I made a presentation to the conference on “Public Interest Litigation to Redress Global Environmental Harm,” which focused on efforts to make it easier to prove causal injury in environmental tort litigation. The topic is of particular interest in China because China’s Code of Civil Procedure has a burden-shifting provision that requires polluters to disprove that they caused harm when pollution-related injury is demonstrated.

One of the highlights of my trip was meeting Ma Jun, director of the Institute of Public and Environmental Affairs. We had lunch on Sunday and he surprised me by bringing a copy of the fourth edition of my environmental law casebook, which he asked me to sign. He explained that the book’s discussion of using information disclosure as a strategy for promoting improved environmental performance had helped inspire him to develop his website which reports information on pollution by companies throughout China. Ma Jun had just returned from a speaking to a group of businesses in Japan about how to green their supply chain. He agreed to speak to the group of environmental law students from Maryland that I will be bringing back to China during their spring break in March 2010.

An album of photos from my trip to China can be viewed online at http://gallery.me.com/rperci#100575. While I was in China, the China Daily reported on the Forbes’ China list of China’s 400 wealthiest individuals. Topping this year’s list is electric car magnate Wang Chuanfu whose wealth quintupled last year to $5.8 billion due to the skyrocketing value of his company BYD, which is about to launch a line of electric cars in China and the U.S. So Al Gore is not the only astute entrepreneur who is doing well by doing what is good for the environment.

Sunday, November 8, 2009

China Trip, Shanghai Roundtable & South African Justice (Belated Nov. 1 Post)

I've just returned from a week and a half in China where I spoke at conferences in Shanghai, Wuhan and Beijing and gave a guest lecture to students in Shanghai. Because I was behind the "great firewall" I was unable to post on this site last week, though I was able to post on my parallel site at: www.globalenvironmentallaw.com. The following is the November 1 posting that I am belatedly posting here. I will shortly post an update on activities during the past week.

On Wednesday morning I flew to China where I will be speaking at three conferences over the course of 11 days. Shortly after arriving in Shanghai on Thursday afternoon I met with Jim Curtis and May Wang from the Maryland China Center to help organize a reception for the Maryland law students I will be bringing to China in March 2010. The Center, which was established by the state of Maryland, hosted a similar reception for the group of Maryland faculty, students, and alums who visited me in China in March 2008 when I was teaching in Beijing as a Fulbright scholar. I was delighted to discover that the Maryland Center can provide a much wider range of services than I previously had anticipated.

On Thursday evening I gave a guest lecture at the East China Normal University in Shanghai. The class on “Law and Society” was part of New York University’s “NYU in Shanghai” program. Most of the students in the class were NYU undergraduates, though there were a few students from other universities as well. I gave a broad historical outline of how environmental law had developed in the U.S. and China and I discussed how climate change was helping to drive the development of global environmental law.

On Friday I met Professor Linda Malone from William and Mary at the Shangri-La Hotel in Pudong. We took a taxi together for the long trip out into the suburbs for a conference on “US NEPA, Environmental Federalism, Climate Change and New Developments in Environmental Law and Policy.” The conference was co-sponsored by Shanghai Jiao Tong University (SJTU) and Pace University’s Center for Environmental Legal Studies. It was designed to bring legal scholars from the U.S., China and Australia together with Chinese environmental officials to compare notes on new developments in environmental law. The U.S. presentations focused on explaining how the process of environmental impact assessment is conducted under our National Environmental Policy Act (NEPA) and efforts to control U.S. emissions of greenhouse gases (GHGs).

I made a presentation on “Climate Change and Environmental Federalism in the Aftermath of Massachusetts v. EPA.” Former congressman Dick Ottinger from Pace discussed the Waxman-Market bill that passed the U.S. House in June and Professor Rob Fowler from the University of South Australia explored efforts in South Australia to encourage environmentally sustainable development. Yang Chaofei, director of the Policy and Law Department of China’s Ministry of Environmental Protection (MEP) and Bie Tao, general counsel of MEP spoke about China’s efforts to control pollution. SJTU Professor Wang Xi presented a detailed comparison of U.S. and Chinese environmental law. We had a lively discussion concerning differences in the legislative process between China and the U.S. with private industry having much more influence in our Congress. I raised the question whether this might actually contribute to U.S. environmental laws being easier to enforce because the regulated community must take them more seriously.

Justice Johann van der Westhuizen of the Constitutional Court of South Africa visited the University of Maryland School of Law as a Distinguished Visitor this week. On Monday he spoke at a luncheon at the school where he discussed the work of his Court and the importance of maintaining respect for the rule of law. I asked him about his Court’s decision in the Mazibuko right to water case where the court overturned a lower court decision that had increased free water allotments to communities to 50 liters per day. Justice van der Westhuizen stated that the was surprised by the harsh reaction to the decision by NGOs around the world. He explained that the court did not want to micromanage the implementation of economic and social rights in the South African Constitution. He expressed the view that the government was in the best position to determine the reasonableness of water allotments in compliance with Article 27 of the Constitution. This article obliges the state to take reasonable measures, within available resources, to give everyone access to sufficient water.

On Saturday I spent the day with my friends Dan Guttman and Zhenzhi (“Zee Zee”) Zhong. Dan has been teaching in China for more than five years now since initially coming here as a Fulbright Scholar. Zee Zee helps run Shanghai Roots & Shoots. After visiting the Roots & Shoots office we went to the top of the spectacular Shanghai World Financial Center (SWFC), which has the world’s tallest observation deck. It provided a truly spectacular view of Shanghai. We then visited the Tai Kang Lu arts district, followed by drinks at the spectacular Vu Bar at the Park Hyatt and a fabulous Japanese dinner at Kagen Teppanyaki. As to the question whether they celebrate Halloween in Shanghai, the answer is definitely “Yes”. Lots of shops had Halloween displays and the attendants at the SWFC were dressed in witches’ costumes with Harry Potter music playing throughout. I am now about the fly to Wuhan for the annual colloquium of the IUCN Academy of Environmental Law.