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, December 26, 2010

Shark Legislation, Class Trailers, China's PITI, Iran Fuel Subsidies, Canada's Oilsands, EPA GHG Regulations (by Bob Percival)

Before it adjourned last week the U.S. Congress approved the Shark Conservation Act of 2010 to restrict the practice of cutting the fins off sharks and then dumping the sharks overboard. The legislation requires any fishing vessel landing sharks in U.S. waters to keep their fins attached and it prevents nonfishing vessels from transporting fins without their carcasses. The legislation, which had been introduced by Guam Delegate Madeleine Bordallo, initially was approved by the U.S. House by voice vote in March 2009. Before it was approved in the Senate last week an exemption was added at the insistence of Senator Burr (R-N.C.) to allow those catching smooth dogfish off the coast of North Carolina to bring in their fins separately.

In October Apple Computer released the latest version of its popular iMovie software program (iMovie ‘11) that includes among its new features templates to make movie trailers. It struck me that it would be fun to make trailers for my upcoming classes. Last week I tried using the templates and was amazed at how easy it was produce movie trailers. I made them for my Global Environmental Law Seminar, my Constitutional Law class, and for the upcoming Stetson International Environmental Moot Court Competition that Maryland will be hosting in March. The trailers can be viewed online from with any browser that can view Quicktime files. The trailer for my Global Environmental Law seminar is at http://gallery.me.com/rperci#100744. The trailer for my Constitutional Law class, featuring video I shot at Independence Hall earlier this month after speaking at a conference in Philadelphia, can be viewed at http://gallery.me.com/rperci#100738. The International Environmental Moot Court trailer, which includes photos from previous competitions and from last May’s Jordanian National Moot Court Competition, can be viewed at http://gallery.me.com/rperci#100753.

Last week I had an opportunity to review an advance draft of the results of the second Pollution Information Transparency Index (PITI) for China, which will soon be published by the Beijing office of the Natural Resources Defense Council (NRDC) and Ma Jun’s Institute for Public and Environmental Affairs. PITI ranks Chinese cities on how well they are implementing China’s Open Information Law, which is similar to the U.S.’s Freedom of Information Act, with respect to environmental information. It has had a remarkable impact on some cities whose officials view it much like deans view the U.S. News rankings of schools in the United States. I will not steal their thunder in advance of the publication of the second PITI, but I can note a couple of positive developments it lauds that already are public information in China. Last March China’s Ministry of Environmental Protection (MEP) disclosed a list of hundreds of key enterprises whose emissions exceeded applicable standards, the first time the central government had disclosed monitoring results for major polluters. Hubei Province subsequently released a similar list for polluters in its region and in August 2010 the Chinese Ministry of Industry and Information Technology released a list of 2,087 companies that were being required to phase out outdated production facilities in 18 industries, including the iron, steel, cement and smelting industries. Some local governments also are engaging NGOs. In May 2010 Weihai City in Shandong Province held a public workshop on information disclosure with NGOs, the media, and officials of the local Environmental Protection Boards (EPBs). Last month Jiaxing City in Zhejiang Province held a similar public forum.

Last week Iran finally implemented its plan to reduce dramatically the $100 billion it has been spending annually to subsidize the price of fuel and other basic commodities. Officials estimated that the move would at least quadruple the price of gasoline while raising prices for electricity and water by threefold. To ease the impact of the reduced subsidies on its citizens the government is spending half of its cost savings to provide compensation payments that it promises to double next year. Drivers now will receive 16 gallons of gasoline per month at a price of approximately $1.52 per gallon and they may purchase additional gasoline for a price 75% higher, which is close to the world market price. Spain’s plan to reduce its costly subsidies for solar energy projects has come under fire from investors who claim that it will exacerbate the country’s banking crisis by forcing many solar producers into default. Because the Spanish government agreed to pay solar photovoltaic projects ten times the price of electricity generated from gas and coal, Spain now has 3,200 megawatts of solar capacity, more than six times what the government had expected to have by the end of 2010. Guy Chazan, Spain’s Cuts to Solar Aid Draw Fire, Wall Street J., Dec. 23, 2010.

On December 21 Canada’s Oilsands Advisory Panel released a report concluding that there is insufficient data to monitor the environmental effects of development of Canada’s oilsands. The panel had been appointed by former Canadian Environment Minister Jim Prentice. Canada’s current Environment Minister John Baird reacted to the report by announcing that the federal government of Canada accepts its findings and will work to establish a better system to monitor the environmental impact of oilsands development. Two other reports released this month - by Canada’s environment commissioner and the Royal Society of Canada also have faulted current environmental monitoring. U.S. environmental groups have asked the State Department to reject a Canadian request to double the size of Tanscanada Corporation’s Keystone pipeline for transporting oil from the Alberta area where the oilsands are concentrated. Edward Welsh & Nirmala Menon, Oil-Sands Monitoring Faulted in Report, Wall St. J., Dec. 22, 2010, at B4.

On December 23 the U.S. EPA announced that it had completed its plans for state greenhouse gas (GHG) permitting programs that will take effect in January. EPA will temporarily take over issuance of air permit in the states of Arizona, Arkansas, Florida, Idaho, Kansas, Oregon and Wyoming until these seven states have revised their programs to cover GHG emissions. Because Texas has refused to revise its air permitting program to include GHG emissions, EPA will take over the program. While this is the procedure specified in the Clean Air Act when a state implementation plan fails to meet federal standards, that did not stop Texas officials from denouncing it as “an arrogant act by an overreaching EPA that is trying to implement new, unnecessary controls on American industry.” James C. McKinley, Jr., “EPA Challenges Texas Over RUles on Emissions,” N.Y. Times, Dec. 23, 2010.

EPA also announced that it will propose new standards for controlling GHG emissions from power plants by July 2011 and for refineries by December 2011. Stung that many utility executives who have invested in clean energy projects support EPA’s new regulations on both GHG emissions and other pollutants, the Wall Street Journal ran an editorial last week denouncing “utility CEOs cheering on the Obama Administration’s plans to wipe out large portions of U.S. electric power capacity.” The editorial charged that “EPA is abusing environmental law to achieve policy goals that the democratic process has rejected, while also engineering a transfer of wealth to certain companies,” The EPA’s Utility Men, Wall St. J., Dec. 23, 2010, at A16. So companies who foresaw the need eventually to invest in clean energy sources because of long overdue regulations to improve protection of health and the environment are faulted by the Journal for (shockingly) actually making money at the expense of those who have profited for years from harming others with their pollution.

Monday, December 20, 2010

Russia Forest Road, Wikileaks, Culturomics, U.S. Sues BP, California GHG Regulations, SEC Regulations, New Counsel in Ecuador Suit (by Bob Percival)

On Tuesday December 14, Russian Deputy Prime Minister Sergei Ivanov announced that the controversial Moscow-St. Petersburg toll road will be routed through the Khimki Forest after all, despite environmental protests that led President Dmitry Medvedev to suspend work on the project last August (see Aug. 29, 2010 blog post). Ivanov chaired a commission examining the controversial $8 billion road project. Russia’s ministry of natural resources announced that it would seek to provide greater protection for the remaining portions of the forest and that it would increase the compensation to be paid for the road’s damage to the forest from 3 billion to 4 billion rubles (approximately $130 million). Ivan Blokov, Greenpeace’s Russia program director, vowed to take the fight to Vinci, a French company involved in the road construction project.

Wikileaks continues to publish leaked cables from U.S. embassies. Of the more than 250,000 cables it reportedly possesses, a total of 7,992 deal with the “environmental affairs.” Cables published last week revealed that U.S. diplomats in Brazil saw President Lula de Silva as simply bowing to political reality when he decided in December 2009 to postpone enforcement of the Brazilian Forest Code’s requirement that rural landowners in the Amazon retain 80% of their forest holdings as reserves. Following the December 2009 Copenhagen Conference, U.S. diplomats specializing in Cuba complained that “Climate change is Fidel Castro’s latest pet project in which poor, socialist countries are the victims and rich, capitalist countries are entirely to blame. . . .Some element of the [Government of Cuba] may see climate change as a legitimate concern, but the view from the top is that of a political propaganda goldmine.” In November 2009 the U.S. Embassy at the Vatican notes that Pope Benedict is stressing environmental concerns. It reports: “While the Vatican's message on caring for the environment is loud and clear, its message on biotechnologies is still low-profile. Quietly supportive, the Church considers the choice of whether to embrace [gentically modified organisms] GMOs as a technical decision for farmers and governments. The Vatican's own scientific academy has stated that there is no evidence GMOs are harmful, and that they could indeed be part of addressing global food security. However, when individual Church leaders, for ideological reasons or ignorance, speak out against GMOs, the Vatican does not -- at least not yet -- feel that it is its duty to challenge them. Post will continue to lobby the Vatican to
speak up in favor of GMOs, in the hope that a louder voice in Rome will encourage individual Church leaders elsewhere to reconsider their critical views.” The cables also indicate that Saudi officials were privately telling U.S. diplomats that they understood the need for the world to work together to combat climate change even as they were publicly questioning the science behind it and doing everything they could to obstruct a global agreement at Copenhagen.

Last week a new searchable Google database was publicized that includes all 2 trillion words contained in 15 million books the company has scanned. The books represent about 12% of all books published in every language since the Gutenberg Bible in 1450. Researchers using the database have discovered that the number of words in the English language has nearly doubled in the past decade to more than 1 million words, including 500,000 that do not appear in any dictionary. The database, which is available online at http://ngrams.googlelabs.com/, allows one to search the relative frequency with which terms of up to five words appear in the database each year. This is spurring interest in a new field that has been dubbed “culturomics” to explore changes over time in the popularity of certain terms. A search for the term “global environmental law” indicates that the term first appeared in books in 1980, but increased significantly in use during the 1990s. A chart showing the frequency of the use of "global environmental law" in books between 1975 and 2000 is displayed as part of my December 19, 2010 post on my parallel blog at: www.globalenvironmentallaw.com.

On Wednesday December 15, the U.S. government filed a lawsuit seeking civil penalties against BP and others involved in drilling and insuring the Macondo well whose blowout caused the catastrophic oil spill in the Gulf of Mexico. The lawsuit, which was filed in federal district court in New Orleans, did not specify a dollar amount of the penalties the government is seeking, but they could run to more than $20 billion. The suit was filed to meet a deadline imposed by the judge overseeing the consolidated oil spill litigation.

On December 15 the U.S. Securities and Exchange Commission (SEC) issued its proposed rule implementing the “conflict minerals” provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (see July 18, 2010 blog post). The proposed rule would require a broad array of companies, including retailers who sell store brand products, that use certain minerals to report to the SEC what steps they have taken to verify that the minerals did not help fund rebel groups in the Democratic Republic of Congo. A fact sheet on the proposed rule, on which public comment will be accepted until January 31, 2011, is available online at: http://www.sec.gov/news/press/2010/2010-247.htm. The SEC also proposed a rule to implement another provision of the Dodd-Frank legislation that requires resource extraction industries to report on payments they made to foreign governments.

On Thursday December 16, the California Air Resources Board by a 9-1 vote adopted regulations to implement the state’s cap-and-trade program to reduce greenhouse gas (GHG) emissions in the state by 15 percent below 2012 levels by 2020. Felicity Barringer, California Approves Stringent Pollution Controls, N.Y. Times, Dec. 17, 2010, at A19.

Plaintiffs suing the Chevron Corporation over pollution of the Oriente region of Ecuador have hired new legal counsel in response to Chevron’s efforts to discredit its existing lawyers. The plaintiffs have hired the Washington law firm of Patton Boggs and they have received new funding from Burford Capital Ltd., a London-based hedge fund that invests in litigation. Ben Casselman & Angel Gonzalez, Chevron Forces Legal Change, Wall St. J., Dec. 18-19, 2010, at B4.

Last week Beijing’s Municipal Commission of Transport indicated that it is considering severe new measures to combat horrendous traffic congestion in China’s capital. The measures may include congestion fees and barring vehicles from certain roads at certain times based on license plate numbers. There are now 4.7 million cars in use in Beijing, 2.1 million more than in 2005 - more than 1,000 new cars a day. Chinese officials estimate that if present trends continue traffic will slow to an average speed of 15 kilometers (9 miles) per hour on the city’s expressways by 2015.

Construction started last week on Israel’s first large project to generate electricity from solar energy. The project in the Arava Valley in southern Israel will employ 18,000 solar panesl on 20 acres of land to generate 5 megawatts of electricity. Larger projects are in the planning stage as Israel seeks to meet its goal of generating 10% of its energy from renewable sources by the year 2020. Charles Levinson, In Israel, Big Solar Field Begins to Rise, Wall St. J., Dec. 14, 2010, at B12.

Sunday, December 12, 2010

Cancun Agreement, EPA GHG Regulations, Supreme Court to Hear Climate Suit, Iran Killer Smog (by Bob Percival)

After all night talks on Friday December 10 and the last minute dismissal of objections from Bolivia by Mexican Foreign Minister Patricia Espinosa, who was chairing the conference, the nations participating in COP-16 adopted the Cancun Agreement. The agreement postpones until next year’s conference in South Africa a decision on whether to extend the Kyoto Protocol for a year. But it adopts 33 pages of text outlining a framework for further progress negotiating emission reductions, monitoring and verifying emissions, funding adaptation and forest protection, and facilitating technology transfer. The most remarkable achievement of the conference seems to be the willingness of all but one of the 194 nations to put aside their differences to reach agreement on a path forward. An advance, unedited copy of the agreement is available online at: http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf

Last week there were two very significant developments in climate change litigation in the U.S. courts. On Friday December 10, the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA regulations governing emissions of greenhouse gases (GHGs) that are scheduled to take effect on January 2, 2011. In a brief order the court stated that the plaintiffs had not met the standard for a stay because they “have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).” The court also ordered that the legal challenges to EPA’s endangerment finding, vehicle rule, timing rule and tailoring rule be heard by the same panel of the court on the same day. While these decisions do not address the merits of the litigation in which 35 petitioners are raising 80 challenges to four EPA rules, they will allow the rules to take effect for now.

On Monday December 6, the U.S. Supreme Court announced that it had agreed to review the Second Circuit’s September 2009 decision (see Sept. 27, 2009 blog post) to allow a public nuisance action by a group of states to go to trial against major electric utilities with coal-fired powerplants. Justice Sotomayor did not participate in the decision to review the case, probably because she initially was on the Second Circuit panel that heard oral argument in the case, even though she was not on the panel that decided it after she became a Supreme Court Justice. In the Supreme Court the case will be known as American Electric Power v. Connecticut (No. 10-174). The U.S. is supporting the utilities by claiming that EPA’s actions to regulate GHG emissions should preempt the lawsuit. The utilities would like a broader ruling that lawsuits involving climate change should not be heard by the courts because they are nonjusticiable political questions. Justice Kennedy’s vote may be critical to the outcome in the case. With Justice Sotomayor’s recusal, the best the states could do is likeluy to be a 4-4 split, if Kennedy, Ginsburg, Kagan and Breyer voted in their favor. This would affirm the decision below and allow the lawsuits, which seek an injunction ordering gradual reductions in GHG emissions and not damages, to go forward.

On Thursday I spoke at a conference held in Philadelphia on “Significant Legal Developments Affecting the Chemical Industry.” I discussed China’s new program for regulating new chemicals that is modeled in part on the EU’s REACH program. One of the other speakers, a lawyer who represents Exxon, presented a litany of the arguments used by climate change deniers and reported a “growing consensus” that climate change science “simply isn’t there.” He expressed hope that the Supreme Court’s ultimate decision in the AEP v. Connecticut lawsuit would bury climate change litigation that he claimed is being brought by greedy lawyers seeking contingency fees (an observation not applicable to the AEP v. Connecticut litigation which is being brought by government officials and does not seek damages).

Horrendous air pollution continued to afflict Iran this week, reportedly causing thousands of deaths. Iran’s minister of health said that emergency room admissions of people with respiratory problems increased 30% and an unofficial report put recent deaths from pollution at 2,500. Some Iranians are blaming the pollution on Western sanctions that have forced Iran to place greater reliance on domestic oil refineries to produce gasoline. Iranian gasoline reportedly has 10 times more particulates than imported gas. Farnaz Fassihi, Iranians Blame Smog on West’s Sanctions, Wall St. J., Dec. 11-12, 2010, at A8.

Now that classes are finished, I had a very busy week making presentations -- four in five days. On Monday December 6 I presented a paper promoting a petroleum price stabilization tax as a means for promoting investment in green energy technology at a meeting held in Berlin by the American Institute for Contemporary German Studies (AICGS). The meeting, part of AICGS’s Translatlantic Climate and Energy Dialogue, was held in the historic Haus Huth, the only building in Postdamer Platz that escaped World War II without significant damage. On Sunday afternoon I toured the Topography of Terror, an exhibit built on the site of Hitler’s bunker, that documents Hitler’s meticulous efforts to neutralize the legal system. I had hoped to fly back to D.C. Monday night, but mechanical troubles with the plane from Berlin to Frankfurt stranded me in Frankfurt for the night, so on Tuesday I flew from Frankfurt directly to New York where I joined my wife to attend a spectacular performance of “The Messiah” at the St. Thomas Church. On Wednesday I flew back to D.C. and spoke to a group of Rawlings Leadership Fellows in College Park at a seminar on environmental leadership. After the chemical industry conference in Philadelphia on Thursday, on Friday I gave a day-long workshop on forestry protection to a group of visiting Chinese officials from Hunan Province.

Sunday, December 5, 2010

Cancun Negotiations, BBC Talk Show, Wikileaks, Conflict Minerals, Student Films, Qatar World Cup (by Bob Percival)

Last Monday representatives of 193 nations began the 16th Conference of the Parties to the UN Framework Convention on Climate Change (COP-16) in Cancun, Mexico. Elizabeth Burleson has posted a guest blog report from Cancun. There are reports that the U.S. and China are making progress in negotiations concerning how to monitor and verify greenhouse gas (GHG) emissions. A proposal to extend the GHG reduction commitments in the Kyoto Protocol beyond their current 2012 expiration date has met with resistance from Japan, Russia and Canada. The talks are scheduled to conclude on Friday December 10.

On Friday December 3, I was a guest on the BBC World Service’s “World, Have Your Say” program to discuss climate change. The program is a kind of global talk show with callers from all over the world interacting with the panelists. We discussed the impact of individual behavior on climate change, the importance of collective action, and the political barriers to an enforceable global agreement. Callers from England, Latvia, Sweden, Mozambique, Belgium, South Africa, New Zealand, Mexico and Botswana spoke during the hour-long program and emails from India, Afghanistan, Uganda, Ireland, and Canada were read. A tape of the program is available online at: http://www.bbc.co.uk/programmes/p00c4pnd

The release of an enormous cache of confidential cables from U.S. diplomats by Wikileaks has caused considerable controversy. I noticed in the initial subject index Wikileaks had prepared that “Environmental Affairs“ was listed as among the most frequent subject discussed in the cables, which may reflect the growing importance of environmental diplomacy. There seem to be few surprises pertaining to the environment in the material released so far. EU External Affairs Minister Chris Patten is quoted in an April 2004 cable from the U.S. Embassy in Brussels as stating that Russia is willing to ratify the Kyoto Protocol in order to gain admittance to the World Trade Organization. A September 2009 cable from the U.S. embassy in Moscow explores why the U.S. should engage and assist Russia in a crackdown on illegal logging there.

The U.S. Securities and Exchange Commission (SEC) is considering how to implement the conflict minerals disclosure provisions of the Dodd/Frank Wall Street Financial Reform and Consumer Protection Act (see July 18, 2010 blog entry). The Wall Street Journal reports that U.S. retailers such as Walmart and Target who carry their own private label products are arguing that they should be exempt from the law because they do not exercise direct control over how these products are manufactured. Jessica Holzer, “Retailers Fight to Escape ‘Conflict Minerals’ Law,” Wall St. J., Dec. 2, 2010, at B1. How the SEC crafts its regulations implementing the law could have a major impact on the extent to which it encourages companies to green their supply chains.

On Monday December 1 my Environmental Law class screened the initial cuts of the short films the students made for this year’s Environmental Law Film Festival. The students made nine films. They included: a lego version of the 1972 film “Silent Running,” a sock puppet rock opera on oil drilling in the Arctic National Wildlife Refuge, the little mermaid takes on ocean pollution, an interview with a couple who were featured in BP’s “Beyond Petroleum” ad campaign, oysters in the Chesapeake Bay, geoengineering, the Leadership in Environmental Energy and Design (LEED) program, the story of the Patapsco River, and the health hazards of jumping into Baltimore Harbor. The films will be submitted to a panel of judges who will vote for the “Golden Tree” awards that will be presented to the students on March 23.

As the U.S. Environmental Protection Agency (EPA) celebrated its 40th anniversary last week, horrendous air pollution afflicted both Shanghai and Tehran. Many Chinese believe that Shanghai’s severe pollution is associated with the end of temporary measures to keep the air clean during the World Expo that closed on October 31. Air pollution was so bad in Tehran that the government closed public offices, banks and universities for a “pollution holiday” last Wednesday.

On Thursday FIFA awarded the 2022 World Cup to Qatar, the country that has by far the world’s largest GHG emissions per capita - 46 metric tons of CO2 per person annually in 2006, compared to 27.5 tons/person in second place United Arab Emirates and 19.3 tons/person in seventh-place U.S. To cope with summer temperatures that can reach 130 degrees Fahrenheit, Qatar plans to air condition the outdoor stadiums, though they are exploring using solar energy to power the cooling systems. Qatar will build nine new soccer stadiums to host the event, but it plans to dismantle and recycle some of them to developing nations after the event.

The U.S. Supreme Court had the Connecticut v. American Electric Power certiorari petition on its conference list for Friday December 3. It may announce tomorrow whether or not it will review the decision by the U.S. Court of Appeals for the 2nd Circuit allowing a common law nuisance action premised on climate change to go forward against large utilities that operate coal-fired powerplants.

On a personal note, my wife received wonderful news last Wednesday when her oncologist declared her chemotherapy complete and her cancer in remission for now. We celebrated together before I left for Europe. I am now in snowy Berlin, Germany where I will be making a presentation tomorrow morning on how to encourage green energy innovation at a conference sponsored by the American Institute for Contemporary German Studies (AICGS).

Saturday, December 4, 2010

Guest Blog Post on Cancun Negotiations by Elizabeth Burleson

Elizabeth Burleson, a visiting professor at the University of Oregon School of Law, has been spending the week at the Cancun climate change negotiations. She submitted this report, which also was shared with the environmental lawprofs listserv. Alan Miller has had to cancel his trip to Cancun.

COP 16 Innovation and Diffusion Update (6pm on Friday December 3) by Elizabeth Burleson

Slow negotiations are creeping forward regarding a new Climate Technology Mechanism, Technology Secretariat, Technology Fund, and a Technology Clearinghouse. I have spoken with World Bank, German, Japanese, G77+China, and a range of other state party, inter-governmental, and non-governmental delegates on efforts underway to removing bracketed language from the negotiating text. The emerging picture is one of retaining good will by postponing controversy. It remains to be seen to what degree technology transfer commitments will emerge as confidence building measures. Finance and technology transfer have been split, leaving many concerned about the means by which innovation and diffusion of environmentally sound technology may come about. Little discussion of the TRIPS / UNFCCC nexus has occurred here or elsewhere. On the bright side, genuinely environmentally sound technology transfer remains an area where mitigation and adaptation can be advanced together.

Sunday, November 28, 2010

Global Tiger Forum, ICCAT Conference, Gulf Oil Spill Update, COP-16 in Cancun (by Bob Percival)

Last week representatives of the 13 countries where tigers still exist in the wild gathered in St. Petersburg, Russia for an International Tiger Conservation Forum. World Wildlife Fund Director General Jim Leape told the forum that if present trends continue tigers in the wild could become extinct by the year 2022, the next Chinese “year of the tiger.” Three of the nine tiger subspecies -- the Bali, Caspian and Javan tigers -- have become extinct in the last 70 years. Countries represented at the forum pledged renewed cooperation to save the tiger including pledges of an additional $127 million for a Global Tiger Recovery Programme. World Bank President Robert Zoellick announced plans for a $100 million loan to help Nepal, Bangladesh and Bhutan with tiger conservation efforts.

The conference was hosted by Russian Prime Minister Vladimir Putin who declared that the fate of the tiger raises “issues that are critical for the entire planet, humanity and its future.” This represented a rare instance in which Putin has spoken out in favor of conservation efforts, perhaps because the tiger fits with the image of strength he seeks to cultivate. Radhika Lokesh, India’s consul general in St. Petersburg, announced that India would add eight tiger reserves to the 39 it already has and would increase efforts to relocate villages away from tiger habitat.

Delegates from 48 countries have just concluded a two-week conference in Paris to discuss how to protect Atlantic fisheries that are declining due to overfishing. At their 17th annual meeting, members of the International Commission for the Conservation of Atlantic Tunas (ICCAT) voted to ban the fishing and sale of seven species of sharks, but rejected proposals for deep cuts in the harvesting of bluefin tuna. They agreed to reduce 2011 bluefin quotas by only 4% from 13,500 to 12,900 tons. The decision was widely criticized by environmental organizations, including Greenpeace, which sharply criticized the secrecy that surrounded the negotiations. Environmental NGOs also denounced the group’s failure to adopt strong measures to address noncompliance with quotas.

Last week the National Commission on the BP Deepwater Horizon Oil Spill released two staff working papers and the BP Compensation Fund administered by Ken Feinberg shifted into a new phase. The Commission, appointed by President Obama last May, released a report concluding that in the two decades since the 1989 Exxon Valdez spill and the enactment of the Oil Pollution Act of 1990 (OPA90) there had been scant development of oil spill response technology even as oil exploration technology changed rapidly. The report concluded that “industry and government underfunded response R&D, and, as a result, the clean-up technology used” to respond to the spill was “dated and inadequate” (http://www.oilspillcommission.gov/document/responseclean-technology-research-development-and-bp-deepwater-horizon-oil-spill). The second staff report examined efforts to kill the Macondo well, noting that BP had no proven technology for stopping such a deepwater spill and that government agencies were unprepared to oversee the efforts to stop it (http://www.oilspillcommission.gov/document/stopping-spill-five-month-effort-kill-macondo-well). Last week BP’s Gulf Coast Claims Facility, the $20 billion compensation fund run by Ken Feinberg, began accepting claims for final payment of damages from the spill. A copy of the Protocol governing such claims is available online at: http://www.GulfCoastClaimsFacility.com/proto_4 Claimants accepting final payment must “waive any rights the Claimant may have against BP and any other potentially liable parties to assert additional claims, to file an individual legal action, to participate in other legal actions associated with the Spill, or to submit any claim for payment by the National Pollution Funds Center.”

Tomorrow the 16th Conference of the Parties (COP-16) to the United Nations Framework Convention on Climate Change begins in Cancun, Mexico. Expectations for a global agreement to control emissions of greenhouse gases (GHGs) following the 2012 expiration of the Kyoto Protocol have been greatly scaled back as have the number of world leaders who plan to attend the conference. I hope to be able to post guest blog reports from Cancun from Elizabeth Burleson and Alan Miller like they submitted from Copenhagen last year. Due to the failure of Congress to pass cap-and-trade legislation the U.S. arrives at the conference even less capable than China of backing up the submission it made in response to the Copenhagen Accord. The U.S. promised a 17% reduction in its GHG emissions from 2005 levels by the year 2020 (only a 4% reduction from Kyoto’s 1990 baseline) based on what the Waxman-Markey legislation would have achieved. China pledged to reduce the carbon intensity of its economy (GHG emissions per unit of gross domestic product) by 40-45% from 2005 levels by 2020, something that is being incorporated into its new Five Year Plan. (A list of Copenhagen Accord submissions is available online at: http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments). Air pollution was terrible in Beijing last week, as a friend who lives there confirmed in an email to me. The U.S. embassy tweeted that it was “crazy bad” as coal-fired heating systems started up to cope with the cold.

On Tuesday November 23 I spoke on global environmental law to an undergraduate class that is part of the multi-disciplinary Environmental Science and Policy Program at the University of Maryland in College Park. I was very impressed with the class, which is taught by Maryland law alum Joanna Goger. The Environmental Science and Policy Program reflects the increasing focus on environmental issues that is occurring across disciplines at many graduate and undergraduate educational institutions.

A gallery of photos from Maryland’s 2010 Environmental Law Winetasting party, described in the November 21 blog post, is now available online at: http://gallery.me.com/rperci#100735. The theme of each year’s event is “wine -- nature’s thanks for preserving the earth.”

Monday, November 22, 2010

Alex Wang Visit, Int'l Clinical Conference, Mongolia Water & Forest Law, BP Spill Report (by Bob Percival)

Last week was International Law Week at the University of Maryland School of Law. On Monday November 15 we hosted Alex Wang, director of the Environmental Law & Governance Project at the Beijing office of the Natural Resources Defense Council (NRDC). Alex spoke to my Administrative Law class about his work to develop a Pollution Information Transparency Index (PITI) in China. The PITI provides annual ratings of Chinese cities on how well they are implementing China’s Open Information Law, which became effective in May 2008. This is a brilliant project because the local governments are where the power is in China and the wide publicity this kind of U.S. News ranking of cities has received has led many local officials to approach NRDC inquiring about how they can improve their ratings. Alex also spoke about the state of environmental law in China at a lunch for students from the Maryland Environmental Law Society and the Asian and Pacific Law Society.

From Wednesday November 17 to Friday November 19 the University of Maryland Law School hosted a conference on “Re-imagining International Clinical Law.” I was the luncheon speaker on Thursday November 18 and in my talk I discussed the history of my work on global environmental law and how globalization is affecting legal education. I emphasized the need to break down disciplinary barriers that separate clinical education from other parts of the academy and how the “Globalizing Clinical Education” conference that Maryland sponsored in April 2007 tried to encourage U.S. clinicians to expand the focus of their work to embrace global concerns. Friday’s sessions included considerable brainstorming about how to structure international clinical work such as the clinics that Maryland is operating that send our students to Namibia, Mexico, and China.

In 1995 I visited Mongolia to present a week-long environmental law workshop for that country’s new government in a program sponsored by Maryland’s Institutional Reform of the Informal Sector (IRIS) program. One of my indelible memories of that experience, aside from how cold it was in Ulan Bator in February, is overhearing a mining company executive tell a new employee on the flight into the country that as long as you “wear a tie” while visiting the Environment Ministry you don’t have to worry much about the country’s environmental regulations. In July of 2009, Mongolia enacted a new Water and Forest Law that prohibits mining activities in water basins and forest areas. As a result of the law, Dashdorj Zorigt, the country’s minister for mineral resources and energy, has suspended the licenses of 254 gold mining enterprises. A list of 1,700 of the country’s 4,000 other licensed mining enterprises is being reviewed for possible revocation to comply with the law. Under the law exemptions can be granted for mines with “strategic deposits” of minerals, but the Mongolian government can then acquire equity stakes in such projects. Peter Stein, Mongolia Reviews Mine Licenses, Wall St. J., Nov. 20-21, 2010, at B3.

On Tuesday November 16, the National Academy of Engineering released its interim report on the BP oil spill. The report, which had been commissioned by Interior Secretary Ken Salazar last May, concluded that further investigation was necessary before firm conclusions could be drawn about the causes of the spill. But it spread plenty of preliminary blame around, citing a “lack of management discipline” and “lack of onboard expertise and of clearly defined responsibilities” on the Deepwater Horizon oil rig. The report also faulted government regulators for failing to have “sufficient in-house expertise and technical capabilities” to evaluate the safety of industry practices and it noted that regulations had lagged behind the development of new deep water drilling technologies. A copy of the interim report is available at: http://www.nationalacademies.org/includes/DH_Interim_Report_final.pdf

A fierce battle has broken out between Congressmen Joe Barton and Fred Upton over who will assume the chairmanship of the powerful House Energy and Commerce Committee when Republicans assume control of the U.S. House of Representatives in January. Barton, who has been the ranking minority member of the committee, is well known for his insistence that U.S. officials should apologize to BP for asking them to create a compensation fund for the Gulf oil spill. While term limits on committee leadership normally would preclude Barton from taking the chairmanship, he is asking for a waiver and arguing that his chief rival Rep. Fred Upton should be denied the chairmanship because he voted in favor of the Energy Policy Act Amendments of 2007 that have banned the sale of incandescent light bulbs effective in 2014. Stephanie Kirchgaessner, Light Bulb Dispute Darkens Contest to Lead House Energy Panel, Financial Times, Nov. 19, 2010, at 4.

Sunday, November 14, 2010

Bush's "Decision Points" Largely Ignores the Environment, Beijing Environmental Court, Widener Talk & Fordham Conference (by Bob Percival)

Last Monday marked the release of former President George W. Bush’s memoir “Decision Points.” While I have not yet read much of the 512-page book, I have been able to search it electronically to confirm that it makes scant mention of any environmental issues. This is no surprise given the track record of the Bush administration on environmental issues during his eight years in office. Bush notes that the architect of the home he built at his Texas ranch used geothermal heat and recycled water to reduce its environmental impact and in a footnote about governors he mentions that he appointed Governor Mike Leavitt of Utah to become his “Environmental Protection Agency director and Health and Human Services secretary.” There is no other mention of EPA, no mention of the Interior Department, or of Christie Todd Whitman, Gail Norton, or Dirk Kempthorne, and the only time the word “regulation” appears is in connection with the financial crisis. Of course, former President Clinton’s “My Life” memoir, which is nearly twice the length of Bush’s book, mentions EPA Administrator Carol Browner only three times and one of those is in connection with her reaction to the Monica Lewinsky scandal.

Bush’s abrupt March 2001 decision to abandon his campaign promise to regulate emissions of CO2 is never mentioned in “Decision Points” and there are only two references to “climate change”. Bush states that he “worked with President Hu (Jintao of China) to find common ground on issues from North Korea to climate change.” The only other mention of global warming or climate change is his description of his efforts to convince other world leaders that it should not be the primary focus of the G-8 summit in 2007. Bush states that he “was willing to be constructive on the issue,” noting that in his 2006 State of the Union message he had decried America’s addiction to oil “a line that didn’t go over so well with some friends back in Texas.” After citing his efforts to promote alternatives to oil and to bypass “the flawed Kyoto Protocol,” he states: “I worried that the intense focus on climate change would cause nations to overlook the desperate immediate needs of the developing world.” Bush states that he told Angela Merkel, the meeting chair: “If world leaders are going to sit around talking about something that might be a problem fifty years from now, we’d better do something about the people dying from AIDS and malaria right now.” At the end of the book Bush states that by focusing on his most crucial decisions he devotes “just a few words to my record on energy and the environment, and I do not describe my decision to create the largest marine conservation areas in the world.”

Like many other countries, China has been experimenting with the creation of specialized environmental courts in various parts of the country. On Friday November 12, the city of Beijing received its first environmental court, which is located in Yanqing County in northwest Beijing. The court will be empowered to hear civil, administrative, and criminal cases involving environmental pollution. According to the China Daily, it is hoped that the court will be more effective in stopping environmental violations because it can issue administrative orders, award damages and levy criminal penalties against violators. Beijing First Environmental Court Was Established, China Daily, Nov. 14, 2010.

On Tuesday November 9 I visited Widener University School of Law in Harrisburg, Pennsylvania. I gave a luncheon talk on “Liability for Environmental Harm and Emerging Global Environmental Law” as part of the Widener Environmental Law Center’s Environmental Law Distinguished Speaker Series. Professor John Dernbach introduced me. Participating in the luncheon via videoconference were Widener faculty from their Wilmington campus, including Professors Jim May and David Hodas. I started my talk with a short video clip of Professor May performing a post-banquet serenade at the IUCN Academy of Environmental Law Colloquium in Ghent.

On Friday November 12 I spoke at a conference on “Presidential Influence Over Administrative Action,” which was held at Fordham University Law School in New York City. I developed a special interest in this topic as a result of bringing the first successful lawsuit against the Office of Management and Budget’s Office of Information and Regulatory Affairs for illegally blocking EPA’s promulgation of a regulation for which a statutory deadline had expired (EDF v. Thomas, 627 F.Supp. 566 (D.D.C. 1986)). In my talk, “Who’s In Charge? Should the President Have Directive Authority Over Regulatory Decisions Entrusted by Law to Agency Heads?” I argued that while the president’s removal authority gives him enormous influence over agency decisions, he ultimately does not have the authority to dictate them when disagreements arise. Columbia University law professor Peter Strauss gave a presentation in which he supported my view. He also provided a brilliant dissection of the Supreme Court’s recent Free Enterprise Fund decision where the Court struck down an effort by Congress to insulate from presidential removal officers of an agency (the Public Company Accounting Oversight Board) within another agency (the Securities and Exchange Commission). Professor Nina Mendelson of the University of Michigan Law School gave a presentation arguing for a presumption in favor of presidential directive authority. However, she agreed that the president could not sign Federal Register notices promulgating regulations when a statute requires that they be issued by an agency head.

Unfortunately, I could not stay for the afternoon panels of the Fordham conference because I had to be back in Baltimore for our Environmental Law Program’s annual Winetasting Party. We had another large turnout of alumni, students and faculty who had the opportunity to taste 76 different wines from a dozen countries. The wines included some old Bordeauxs from three different Médoc second growths, including three different vintages of Chateau Pichon Lalande, one third growth winery and some old vintage port. Alumni Jani Laskaris won the annual contest to guess the mystery wine, correctly guessing that it was a Greek cabernet, but missing the vintage year.

Monday, November 8, 2010

U.S. Midterm Elections Deepen the Divide, Collapse of U.S. Carbon Trading, EPA Nabs Most Wanted Suspect, Teaching the BP Spill (by Bob Percival)

On Tuesday November 2, the U.S. electorate went to the polls for the 2010 midterm election. As a result of the election, Republicans seized control of the U.S. House of Representatives with a net gain of at least 60 seats. Republicans also gained 6 seats in the Senate, leaving the Democrats with a 53-47 majority. Citing figures compiled by Daily Kos blogger R.L. Miller and Think Progress, the Washington Post reported that at least 35 of the 85 new Republican members of the House are climate change deniers as are 5 of the 6 new Republican senators. This makes it virtually certain that the U.S. Congress will not pass legislation to control emissions of greenhouse gases (GHGs), leaving the task of regulation entirely to EPA which may face fierce opposition from Republicans in Congress. Since the Republicans control only the House many of these battles may be fought over the power of the purse with the House refusing to approve appropriations for EPA activities in an effort to force concessions. One wonders whether too much effort was put into cutting deals with large corporations to win their support for cap-and-trade legislation and not enough effort to educate the grassroots about the importance of actions to control GHG emissions. In a post-election press conference President Obama acknowledged a need to shift strategy, perhaps by emphasizing clean energy and green jobs legislation. Juliet Eilperin & Steven Mufson, Obama SHifting Climate Strategy After GOP Gains, Washington Post, Nov. 5, 2010, at A3.

Even as the U.S. Congress was tilting decidedly against environmental interests, Californians decisively defeated Proposition 23, which would have suspended AB 32, the state’s ambitious program to control GHG emissions. The initiative received less than 40 percent of the vote, losing by a margin of 21 percentage points, the largest defeat of any of the voter initiatives on the ballot, despite an expensive campaign in its favor funded by Texas oil companies. Maryland reelected its Democratic governor Martin O’Malley by a large margin (56 to 42%), spurning the effort by former Republican governor Bob Ehrlich to reclaim the office. While Ehrlich had reasonably decent environmental credentials, even he felt compelled to become a climate “skeptic,” using the flimsy excuse that the “East Anglia emails” had changed his mind.

The failure of Congress to adopt legislation to control GHG emissions will lead to the demise of carbon trading markets in the U.S. Intercontinental Exchange (ICE), which owns the Chicago Climate Exchange and the Chicago Climate Futures Exchange, announced last week that after the end of the year it no longer will process voluntary carbon trades in the U.S. in the absence of legislation that makes such trades valuable. ICE remains bullish on European carbon trading markets where it is earning robust profits. Hal Weitzman, End Looms for Carbon Trading in U.S., Financial Times, November 2, 2010, at 20.

On Friday November 5 a panel of the United Nations released a report proposing to raise $100 billion annually to help developing countries combat climate change through measures to price carbon emissions at $20-25 per ton as well as fees on international aviation and shipping and a tax on foreign exchange transactions. Rejecting a “one size fits all” approach, the panel left it to individual governments to choose the measures they would adopt to meet the financials goals. Fiona Harvey, UN Wants Taxes to Fund Climate Change Fight, Financial Times, Nov. 6-7, 2010, at 3.

A fugitive who was on the U.S. Environmental Protection Agency’s list of most wanted criminal suspects was arrested last week. Albania Deleon, who had disappeared prior to sentencing for environmental crimes in connection with running a fraudulent asbestos training institute, was arrested in Santo Domingo, Dominican Republic. EPA has maintained a list of most wanted suspects for environmental crimes for the last two years. Ms. Deleon is the first woman to be on the list. Leslie Kaufman, Woman Wanted by E.P.A. Is Arrested, N.Y. Times, Nov. 2, 2010.

On Wednesday November 3, the day after the election, my former student Neal Kemkar who is a special assistant to the counselor to the Secretary of Interior came to my Environmental Law class to help us conduct a session on the BP oil spill. Prior to the class we distributed to the students copies of the October 1, 2010 memo that Michael Bromwich, director of the Bureau of Ocean Energy Management, Regulation and Enforcement, had prepared for Secretary Salazar concerning options for lifting the moratorium on offshore drilling. We asked the students to choose from among the five options in the memo and to defend their choice. Then we gave them copies of Secretary Salazar’s memo explaining the option that he selected. I have been trying to integrate aspects of the BP oil spill throughout my environmental law class. When we studied NEPA we examined the Council of Environmental Quality’s August 16, 2010 “Report Regarding the Minerals Management Service’s National Environmental Policy Act Policies, Practices, and Procedures as They Relate to Outer Continental Shelf Oil and Gas Exploration and Development.” The students considered whether the spill could have been prevented if additional environmental assessment had been conducted, an issue that generated considerable skepticism given the gross inadequacies of some of the assumptions in the environmental reviews that were conducted.

Monday, November 1, 2010

University of Chile V Jornadas, Nagoya CBD COP-10 (by Bob Percival)

Yesterday I returned from a week in Chile where I spoke at the Fifth Conference on Environmental Law (V Jornadas) sponsored by the University of Chile’s Center for Environmental Law (Centro Derecho Ambiental or CDA). Every two years the University of Chile’s CDA holds one of the most outstanding environmental law conferences in the world. This year’s theme was “Environmental Law in Times of Reform.” I spoke at the opening of the conference on Wednesday October 27, following an opening address by Maria Ignacia Benítez Pereira, Chile’s Minister of the Environment.

Chile is upgrading its environmental laws by replacing a relatively weak and decentralized system with a new and more powerful federal environmental agency that will have responsibility not only for pollution control, but also for management of protected areas. In fact, the minister indicated that the Environment Ministry may become the largest agency in the entire Chilean government. Even the election of a new and more conservative government, which took power in March 2010, has not slowed down the progress of environmental reform. In fact, the government of Sebastián Piñera is said to have speeded up the process of reform. It was striking to hear the praise the new environment minister heaped on her predecessor, Ana Lya Uriarte, who is now a professor at the CDA. Environmental protection seems to be such a priority for Chile that there is bipartisan support for strengthening the country’s environmental laws. After some of the first public demonstrations in Chile organized through Facebook and Twitter, President Piñera surprised environmentalists by agreeing to cancel a new coal-fired powerplant in northern Chile.

I was delighted to be reunited with Carlos SIlva, a former student of mine, who has become the chief prosecutor for the Chilean Environment Ministry. My wife, who is responding well to chemotherapy, accompanied me on the trip and we had a wonderful time visiting the places we used to hang out at while waiting for our daughter’s adoption to be approved. We also were delighted to spend an afternoon on a private tour of Almaviva winery in Puente Alto, the Santiago suburb where our daughter was born. Our luggage did not make a close connection in Miami so I had to purchase a coat, tie and dress shirt at a Santiago department store in order to look presentable for my talk. We were able to inspect the rescue capsule that was used to pull the 33 trapped Chilean miners to safety, which was on display in the Plaza Constitucion in front of the Law Moneda presidential palace. Photos of the trip are available online at: http://gallery.me.com/rperci#100734.

Like China, Chile appears to be a country on the cusp between the developing and developed worlds. While Chilean courts have not been friendly to public interest environmental litigation, slow progress is being made. Last year a court finally blocked a project for having an inadequate environmental impact assessment. The government was still able to proceed with the project within a few months, disappointing many environmentalists. Another court has required a private landowner who illegally destroyed thousand-year old trees to pay compensation for ecological damages. While Chile’s emissions of greenhouse gases (GHG) are small in absolute terms, they are growing rapidly as the country’s economy expands. Even though the Kyoto Protocol does not require Chile to reduce its GHG emissions, the government has pledged to reduce them. A pilot program asking Chileans in one jurisdiction to buy carbon offsets when they renew their driver’s registration received a 20% positive response. Some concern was expressed about the impact of GHG footprint labeling program in France on the export of Chilean goods to Europe.

In their presentation on environmental courts, Rock and Kitty Pring from the University of Denver noted that the Chilean government is considering establishing a national environmental tribunal. Surprisingly, they found that the primary motivation for the tribunal is coming from private industry, which is fearful that the new national environmental agency will be too powerful. The environmental tribunal would serve as a vehicle for industry to appeal decisions by the Ministry of Environment, though environmental NGOs would be allowed to appear before the tribunal as amici.

Meanwhile the Tenth Conference of the Parties to the Convention on Biological Diversity (COP-10) concluded in Nagoya, Japan, which some hopeful developments. The 193 countries represented at the conference committed to increase their efforts to protect endangered species and developed countries agreed to share more of the benefits of genetic resources obtained from the developing world. The parties agreed a 10-year strategy to boost protected land areas to 17% of the world and to inxrease marine protected areas to cover 10% of the oceans by 2020. Unfortunately there was less agreement on measures to increase funding from developed countries to assist developing countries in protecting habitat for endangered species.

Saturday, October 23, 2010

India’s Green Tribunal, CBD COP-10, China's 5-Year Plan, Chinese Smelter Shut Down, Canada’s Syncrude Fined & Dean Xi’s Visit (by Bob Percival)

On October 19 India launched a new National Green Tribunal, a specialized court to hear the country’s environmental cases. India’s Environment Minister Jairam Ramesh views the court, created by Parliament’s passage of the National Green Tribunal Act last June, as an important part of efforts to strengthen enforcement of the nation’s environmental laws. The tribunal has 20 members - ten from the judiciary and ten environmental experts -- with Justice Lokeshwar Singh Panta serving as chairperson. It will have four regional circuits to hear environmental cases in various parts of the country. Armin Rosencranz, perhaps America’s leading expert on India’s environmental laws, is skeptical that the tribunal will make much difference. In 1995 India established a specialized tribunal to hear cases related to hazardous waste and in 1997 the country created the National Environmental Appellate Authority, which will be replaced by the new tribunal. Both entities were widely criticized and viewed as less than successful.

Last week delegates from nearly every country in the world convened in Nagoya, Japan for the Tenth Conference of the Parties (COP-10) to the Convention on Biological Diversity (CBD). The United States is the only one of the 193 initial signatories to the CBD that has failed to ratify it. The high level ministerial portion of the conference will take place from October 27-29. As the CBD convened, the UN released a study on “The Economics of Ecosystems and Biodiversity. The study, prepared by Indian economist Pavan Sikhdev, estimated that environmental degradation causes damage ranging from $2 trillion to $4.5 trillion per year. One editorial writer noted that the range of the study’s estimate was so wide “as to be almost meaningless,” but “still better than nothing.” Nature by the Numbers, Financial Times, Oct. 20, 2010.

Even as China scrambles to meet the pledge in its current 11th five-year plan to reduce energy intensity by 20% by the end of this year, a new 12th five-year plan has been drafted. It reportedly pledges to reduce the energy consumed per unit of output by another 17.3% during the years 2011-2015. It also may have even more ambitious goals for reducing the carbon intensity of output. The new plan is to be approved at the next session of the National People’s Congress in March 2011. Frantic efforts to meet the existing plan’s energy efficiency target reportedly have led to closures of steel mills, electricity reductions to small businesses, and even a week-long dimming of traffic lights in Anping in Hebei province. Chinese energy intensity had fallen by 15.6% from 2005 to 2009, but in the first quarter of 2010 it rose by 3.2% in response to economic stimulus measures. Leslie Hook, China Feels the Strain in Rush to Save Energy, Financial Times, Oct. 19, 2010.

On Friday October 22, the Shenzen Zhongjin Lingnan Nonfemet Company revealed that Chinese environmental authorities had forced it to stop production at a large lead and zinc smelter it owns in Shaoguan in Guangdong province. The shutdown reportedly follows the discovery of thalium contamination in Guangdong’s North River. Because the smelter contributes 83% of the lead and zinc production by the company, which itself supplies 6% of China’s zinc, the shutdown had an impact on global zinc prices, which rose 1.5% on Friday. Some observers speculated that the shutdown may be related to China’s hosting of the 45-nation Asian Games in Guangzhou, which is 145 miles downstream. James T. Areddy, Zinc Prices Reel as China Probe Targets Plant, Wall St. J., Oct. 23, 2010.

On October 22 a court in Alberta, Canada fined Syncrude, Canada’s largest oil sands operator, $2.92 million for causing the deaths of 1,603 ducks who the company failed to prevent from landing on oily tailings impoundments it operated. The court noted that the company had cut back on its efforts to keep birds away from the toxic pools. Approximately $1.95 million of the penalty will be devoted to environmental projects to protect wildlife as part of the province’s new “creative sentencing” system. Greenpeace denounced the fine as “no more than a slap on the wrist.” Ian Austen, Canadian Oil Company Fined for Duck Deaths, New York Times, Oct. 23, 2010.

On October 19 I hosted Xi Xiangmin, the dean of the Ocean University School of Law in Qingdao, China. I first met Dean Xi in 2007 when we both spoke at a international conference on environmental legislation hosted by the National People’s Congress of China in Beijing. Dean Xi was a law school classmate of Professor Wang Canfa of the China University of Political Science and Law. He is an expert on environmental law. In the U.S. he is visiting the University of Maryland, the University of Baltimore, the Environmental Law Institute, and Vermont Law School. He also is stopping at Princeton University to visit his son who is studying there for a Ph.D. in mathematics. While visiting Maryland, Dean Xi met with Dean Phoebe Haddon and was given a tour of our East Asian Legal Studies Program. We presented him with a copy of Emeritus Professor Hungdah Chiu’s renowned Chinese language book on international law. A picture of Dean Xi has been posted on my blog at: www.globalenvironmentallaw.com

Monday, October 18, 2010

Offshore Drilling Moratorium Lifted, Canada Lists BPA as Toxic, Spruce Mine Permit Veto, Chilean Miners Rescued, Chinese Drywall (by Bob Percival)

On Tuesday October 12, Interior Secretary Ken Salazar lifted the moratorium on deepwater oil drilling that had been imposed in the wake of the BP oil spill in the Gulf of Mexico. The move was criticized both by environmentalists, who believed that it was too hasty, and by the oil industry who complained that new regulations they must comply with would delay their receipt of permits.

The chaotic state of U.S. energy policy in the wake of the failure of U.S. cap-and-trade legislation may be illustrated by the current dispute between Constellation Energy Group and its partner Electricité de France (EDF) over whether to abandon a project to build an additional nuclear power plant at Calvert Cliffs, Maryland. After U.S.-based Constellation announced that it was canceling the project, EDF offered last week to buy out the joint venture on the condition that Constellation not force it to take over 12 of its other powerplants that use fossil fuels. Clearly the foreign firm places a much higher value on generation assets with a lower carbon footprint than its U.S. partner does.

Last week Canadian Environment Minister Jim Prentice announced that the Canadian government was adding the chemical bisphenol-A (BPA) to its register of toxic substances under the country’s Chemical Management Plan. BPA is widely used to harden plastics, and some jurisdictions have limited its use in products likely to be used by children, such as baby bottles, due to test data raising toxicity concerns. Environment Canada based its decision on test data linking the chemical to harmful neurodevelopmental and behavioral effects in rodents. Based on this data, the agency stated it was “considered appropriate to apply a precautionary approach” to protect public health and the environment.

The 184 million gallons of toxic sludge released by the October 4th collapse of a containment reservoir at a plant that converts bauxite into alumina in Hungary has now killed 9 people and caused major damage to two villages. Despite initial assurances from Hungarian officials and the company that owned the plant that the sludge was not toxic, it contains high concentrations of arsenic and in undiluted form is a caustic as lye. Nonetheless, Zoltan Nakoyni, the chief executive of the company (MAL Hungarian Aluminum Productiona and Trade) that owned the plant was released by order of a judge who rejected demands that he be prosecuted for negligence. Hungary’s state minister for the environment Zoltan Illes warned that there are many other similar sites in central and eastern Europe where containment structures for toxic wastes have not been adequately maintained. Dan Bilefsky, Hungary Sludge a Warning for Other Sites in Europe, N.Y. Times, Oct. 15, 2010, at A10.

On Friday October 15, EPA Regional Administrator Shawn M. Garvin announced that he was recommending that the agency veto a permit for the largest mountaintop coal mining project in West Virginia. The permit, which had been approved by the George W. Bush administration, would allow dynamiting of 2,278 acres of land with the spoil to be dumped into nearby valleys. EPA found that the spoil would bury seven miles of streams, destroying all aquatic life and spreading toxic contaminants downstream. The company seeking the permit, Arch Coal, stated that it would vigorously contest any veto. John M. Broder, EPA Official Seeks to Block West Virginia Mine, N.Y. Times, October 16, 2010. An indication of how unpopular climate change legislation in West Virginia was provided last week when the state’s Democratic governor Joe Manchin released a campaign ad where he literally fires a bullet through the Waxman-Markey cap-and-trade bill. A video of the ad can be viewed at: http://www.youtube.com/watch?v=xIJORBRpOPM. As another blogger noticed, Manchin’s bullet actually hits the “s” in “to create clean energy jobs” in the preamble describing the bill’s purpose.

My wife, daughter and I were glued to the TV last week to watch the rescue of the 33 Chilean miners who had been trapped underground for 69 days. My daughter is Chilean and my wife and I will be visiting Chile next week where I will speak at an environmental conference at the University of Chile Law School’s Center for Environmental Law. The rescue was an inspiration to the entire world and it demonstrated how global publicity can create support for enhanced safety standards. Chilean President Sebastián Piñera stated that “If Chile wants to be a developed country it’s not just about sitting at the table with European countries but about treating workers as if we were a developed country.” He vowed to upgrade health and safety standards to respect the “life, health, integrity and dignity” of workers. Jude Webber, Chilean President Pledges “New Deal”, Financial Times, October 14, 2010. Editorial cartoonist Jeff Danziger portrayed officials in China, where more than 2,600 coal miners were killed in 2009 (down from 7,000 deaths in 2003), as asking whether this means that they will have to rescue trapped Chinese miners. See the fifth cartoon in the slideshow at: http://www.washingtonpost.com/wp-dyn/content/gallery/2010/10/15/GA2010101505085.html?referrer=emaillink

On Thursday October 14 a federal judge in New Orleans approved a settlement between homeowners, importers, manufacturers and distributors of drywall manufactured by a Chinese company, Knauf Plasterboard Tianjin. The drywall was linked to sulfur fumes that corroded metal and wiring and allegedly caused health problems for occupants of homes in which it was used. The companies agreed to remove and replace the drywall and electric wiring, gas tubing and appliances in 300 homes in 4 states at a cost estimated at $150,000 per home. It is believed that the settlement, which does not resolve claims of harm to health, could serve as a model for future settlements of similar lawsuits. M.P. McQueen, Deal in Drywall Case, Wall St. J., Oct. 15, 2010, at A5.

On Tuesday October 12 I was the luncheon speaker for the National Oceanic and Atmospheric Administration’s Law of the Sea Convention Working Group at NOAA headquarters in Silver Spring, Maryland. The topic of my talk was “Liability for Transboundary Environmental Harm and Emerging Global Environmental Law.” After the talk I had lunch with a group of NOAA attorneys and interns, including a Maryland law student who is interning at the agency.

Monday, October 11, 2010

Hungarian Sludge Spill, Tianjin COP-16 Preparatory Meeting, Cap-and-Trade Postmortem & EAB Field Trip (by Bob Percival)

On October 4 the collapse of an impoundment structure at the MAL Hungarian Aluminum Production & Trade plant in Ajka, Hungary spilled more than 200 million gallons of toxic red sludge that killed seven people, sent more than 100 to the hospital with chemical burns, and polluted waterways 100 miles southwest of Budapest. The sludge contains heavy metals that burned those who came into contact with it. Hungarian authorities sought to dilute the heavily alkaline sludge by dumping gypsum into tributary rivers and opening sluice gates to raise water levels. Hungarian environmental NGOs claimed that they had urged the government for years to control risks from the impoundment at the plant, but the company maintained that the waste was not considered toxic under EU standards. By October 7 the sludge had reached the Danube River, though with diminished alkalinity of 8.5 pH that was killing fewer fish than in the vicinity of the plant. Fears that a second impoundment structure will collapse led to the evacuation of the village of Kolantar on October 9.

Last week representatives from more than 190 nations gathered in Tianjin, China for the final meeting in preparation for the 16th Conference of the Parties (COP-16) to the UN Framework Convention on Climate Change, which will open in Cancun, Mexico on November 29. Unfortunately, little progress was made and few are expecting any dramatic results from the Cancun meeting. China’s representative reportedly called the U.S. delegate a “preening pig” given the lack of U.S. action on cap-and-trade legislation. Todd Stern, the chief U.S. climate negotiator, continued to promise that the U.S. would reduce its greenhouse gas (GHG) emissions by 17% by 2020, in line with its Copenhagen pledge and what the Waxman-Markey legislation that passed the House, but not the Senate, was expected to produce. Disagreement also continued on the size of a fund to assist developing countries in controlling their GHG emissions, though some reports suggest that progress was made on logistical details concerning how the fund would operate.

With cap-and-trade legislation now being disavowed by congressional candidates, many are discussing the reasons why the Senate failed to act and fingers are being pointed in several directions. Columnist Tom Friedman identifies five factors: “Mindless tribal partisanship,”
 “A TV network acting as the political enforcer of the Republican Party,” “Special interests buying policy,” “Politicians who put their interests before the country’s,” and “A political system that cannot manage multiple policy shifts at once -- even though it needs to.” Thomas L. Friedman, “An X-Ray of Dysfunction,” New York Times, Oct. 9, 2010.

On Thursday October 7, 23 students from my Environmental Law class made a field trip to EPA to watch an oral argument before the Environmental Appeals Board (EAB) in a case challenging a permit for an oil drilling platform off the coast of Alaska. The five students who arrived first were escorted to the argument by the Board’s clerk and reported that it was a fascinating argument with some judges sharply challenging Region 10’s seeming deference to Shell Oil in drafting the permit. However, 18 students who arrived a few minutes late due to heavy traffic then waited for an hour in EPA’s lobby after clearing security because the guards insisted that they needed an escort to the argument who was expected shortly, but who never materialized. Thus, even though the argument was being conducted in a room with plenty of empty seats only a few doors away from where the students were required to wait, EPA security would not let them in the Administrative Courtroom. Even the U.S. Supreme Court allows latecomers to attend its arguments so long as there is space in the courtroom. We had submitted all of the students’ names to EPA a week in advance and every student who said they were coming made the pilgrimage from Baltimore. I am amazed that this happened and I doubt if the students will be eager to visit the EAB again.

Monday, October 4, 2010

U.S. Supreme Court 2010-2011 Term, 2nd Circuit ATS Decision, Indian Smelter Shutdown & U.S. Fuel Economy Targets (by Bob Percival)

Today is the first Monday of October and the U.S. Supreme Court begins its 2010-2011 Term with a new Justice (Elena Kagan) and no environmental case on its argument calendar. Despite the Court’s bare environmental docket, the importance of the judiciary in the development of environmental law has been illustrated by recent cases. For example, on September 17, a panel of the U.S. Court of Appeals for the Second Circuit ruled 2-1 that corporations cannot be held liable for violations of the Alien Tort Statute (ATS) because international law does not hold corporations civilly liable for torts in violation of the law of nations. The majority opinion in the case of Kiobel v. Royal Dutch Petroleum was authored by Judge Jose Cabranes over a vociferous dissent from Judge Pierre Leval. The decision would wipe out many existing ATS suits, while still allowing individuals to be sued under the ATS. It would have barred the lawsuits that led to large settlements by Unocal in the Burma litigation and by Shell Oil with the survivors of Ken Saro-wiwa in Nigeria. In his strong dissent Judge Leval argues that there is no authority supporting the majority’s position which would allow corporations to profit from egregious violations of universal norms of behavior with impunity from civil liability. Plaintiffs are likely to seek a rehearing en banc and the issue ultimately could be decided by the U.S. Supreme Court, which narrowly avoided neutering the ATS six years ago in the Sosa v. Alvarez-Machain case.

Last week the Madras High Court in India ordered Sterlite Industries, a subsidiary of Vedanta Resources, to close its Tuticorin copper smelter for violating environmental regulations in a sensitive coastal area of Tamil Nadu state. The smelter, which was built in 1996, is located 15 kilometers from the Gulf of Mannar, a national marine park, despite a requirement that it be no closer than 25 kilometers. The company also had failed to develop a 250 meter green belt around the plant. The decision sent shock waves through the Bombay Stock Exchange. The head of research for JPMorgan India, Jahangir Aziz, stated that “Somebody has to be made an example of. They ran into some judges who said: ‘Enough is enough. Nobody is doing anything [to enforce environmental laws] so we are’.” Amy Kazmin, Fresh Blow to Vedanta’s Battered Green Credentials, Financial Times, Sept. 29, 2010. On Friday October 1 the Supreme Court of India granted a temporary stay of the lower court’s order to close the smelter until a hearing on October 18.

Last week the U.S. Environmental Protection Agency (EPA) and the Department of Transportation (DOT) proposed a dramatic increase in U.S. fuel economy standards to require vehicles to average as much as 62 miles per gallon by the year 2025. The agencies are seeking public comment on this proposal. Regulations they issued in April require vehicles to average 35 mpg by model year 2016. The Wall Street Journal reported that General Motors Company, which is now 61% controlled by the U.S. government, is accelerating plans for a new, more fuel-efficient, line of large sport utility vehicles. Siobhan Hughes & Sharon Terlep, GM Plans New SUVs Ahead of Fuel Goals, Wall Street J., Oct. 2-3, 2010, at 1.

Monday, September 27, 2010

Millennium Development Goals, Clean Cookstove Initiative, Global Spread of GMO Crops & Carbon Disclosure’s “Global 500” (By Bob Percival)

Last week world leaders gathered to review their progress in meeting the Millennium Development Goals (MDGs), eight internationally-agreed goals aimed at reducing poverty and improving education, health, gender equality and environmental sustainability by 2015. While progress toward achieving the goals has been uneven, the U.N. Development Programme (UNDP) announced an MDG Acceleration Framework to speed progress. Ten pilot countries from different regions have selected off-track targets as their focus areas and identified the constraints to faster progress, practical solutions to address them, and partners to implement these solutions.  A report describing the results of these pilots is available online here: UnlockingProgress_MAF Lessons from Pilot_Countries_September 2010-2.pdf. The Summit on the Millennium Development Goals concluded with the adoption of a global action plan to achieve the eight anti-poverty goals and new commitments for women and children’s health, as described online at: http://www.un.org/millenniumgoals/ The new global commitments were met with considerable skepticism in many quarters.

Last week the Global Alliance for Clean Cookstoves was announced by Secretary of State Hillary Clinton, joined by representatives of the UN Foundation, several nations and many NGOs. The initiative seeks to replace 100 million traditional stoves that are widely used for cooking and heating in households across the developing world with affordable, efficient, environmentally-friendly models by 2020. The World Health organization estimates that pollution and safety hazards from existing cookstoves contribute to 2 million premature deaths annually in the developing world. The stoves also are a significant source of black carbon contributing to global warming and climate change. The Global Alliance will seek to establish manufacturing facilities in developing countries to make the stoves readily available at low cost while spurring job growth in development countries. The initiative represents another example of the development of global environmental policy outside traditional government regulatory structures. Products like cookstoves that are used by individuals have not been extensively regulated around the world, yet they can represent highly significant sources of environmental problems. By not giving away the stoves for free, the Alliance has indicated that it has learned from past mistakes where free distribution of stoves led consumers not to value them very highly.

Last week the Wall Street Journal published data showing how extensive the use of genetically modified crops has become throughout the world. In the U.S. more than 80% of soybean, cotton and corn crops are genetically modified now with nearly 160 million acres of GMO crops planted. Brazil is second in GMO acreage with 52.9 million acres, followed by Argentina with 52.6 million acres, India with 20.8 million acres (cotton), Canada with 20.3 million acres, China with 9.1 million acres, Paraguay with 5.4 million acres (soybeans).

Last week the Carbon Disclosure Project identified a “global 500” of companies that have begun to report their emissions of greenhouse gases (GHGs). The project disclosed that fewer than one-fifth of these companies had made significant progress in reducing their emissions of GHGs.

Sunday, September 19, 2010

9th IUCN Academy Colloquium, 9th Circuit Rejects Nigerian Suit Against Chevron (by Bob Percival)

This week the 8th Annual Colloquium of the IUCN Academy of Environmental Law, the premier gathering of environmental law professors from around the world, was held at the University of Ghent in the historic and beautiful city of Ghent, Belgium. I arrived in Ghent on Tuesday morning September 16 after a short train ride from the Brussels airport. As usual with these colloquia, the participants were a vibrant and diverse group of nearly 200 environmental law experts from 34 countries throughout the world. More than 100 presentations were made during three plenary sessions and 34 panels.

On Tuesday afternoon I chaired a panel on “Biodiversity and Climate Change: Poverty, Ethics and Justice”. On the panel were Professor Mekete Bekele Tekle from the University of Addis Ababa in Ethiopia, Professor Jose Juan Gonzalez Marquez from the Universidad Autonoma Metropolitana in Mexico City, and Ph.D. candidate Julien Bétaille from the University of Limoges in France. Mekete gave a powerful explanation of the multiple environmental problems confronting Ethiopia, one of the poorest countries in the world on track to become the world’s 9th most populous country by 2050. Jose Juan made a provocative proposal for global payments to compensate residents of poor areas of southern Mexico for agreeing to preserve habitat. Julien discussed the Draft Convention on the International Status of Environmentally-Displaced Persons, which has been developed by professors from the University of Limoges with contributions from legal experts from several countries. The presentations were followed by a lively discussion with a highly sophisticated audience of legal experts from around the world.

On Tuesday evening participants in the Colloquium were treated to a reception at Ghent’s historic Town Hall (Stadhuis), a short walk from the University of Ghent’s School of Law where the colloquium was held. The group was welcomed by the city alderman and treated to light refreshments. At the reception it was announced that Professor Jamie Benidickson from the University of Ottawa had been awarded the Academy’s senior scholarship prize in part for his book The Culture of Flushing: A Social and Legal History of Sewage (UBC Press, 2007).

On Wednesday morning I made a presentation on “Protection of Biodiversity, Climate Change and Emerging Global Environmental Law.” I emphasized that climate change is posing a fundamental challenge to models for protecting biodiversity premised on protecting habitats from more localized impacts of development. I discussed how biodiversity law is adapting to climate change and how globalization is affecting the evolution of environmental law. With me on the panel were Arie Trouwbourst from Tilburg University in the Netherlands, who discussed the implications of climate change for the Bonn Convention on Migratory Species, and Herwig Unnerstall from the Helmholtz Centre for Environmental Research in Germany, who discussed the impact of climate change on Natura 2000, the European Union’s network of natural areas protected by the 1992 Habitats Directive.

On Wednesday evening the colloquium participants walked across Ghent for a group dinner in the Club of Flanders located in the Crypt of the Saint Pieters Abbey. In this spectacular setting we listened to University of Nairobi Professor Charles Okidi, who has been teaching environmental law for four decades, deliver the annual distinguished lecture. Professor Okidi spoke on “International Legal Responses to Threats to Marine Biological Diversity.” Following the dinner several groups of professors spontaneously performed national songs, inspired initially by the Latin Americans. The large contingent of professors from Australia then regaled the group with a rendition of “Waltzing Matilda”.

The colloquium concluded on Thursday afternoon. A post-lunch session had been planned to enable Tseming Yang to discuss his work at EPA, but he was unable to attend the colloquium at the last minute. The next colloquium will be held from July 3-7, 2011 at the Wild Coast Sun resort, on the East Cape south of Durban, South Africa. The theme of the colloquium will be “Water and the Law: Towards Sustainability”. The University of Maryland School of Law will host the 10th annual colloquium of the Academy in 2012. An album of photos of Ghent and some colloquium events, including a video of the Australian professors singing “Waltzing Matilda,” can be viewed online at: http://gallery.me.com/rperci/100708.

On September 10 the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict denying relief to Nigerian protesters injured in 1998 when Nigerian Government Security Forces evicted them from an offshore drilling platform operated by Chevron. The court found nothing wrong with the jury instructions or evidentiary rulings made by the district court. The court found it unnecessary to decide whether the Death on the High Seas Act preempts wrongful death and survival claims brought under the Alien Tort Claims Act by the families of two protesters who were killed. However, the court did hold that corporations cannot be held liable under the Torture Victim Protection Act because of its reference to “individuals.” The court recognized that this aspect of its decision is in tension with a previous decision by the U.S. Court of Appeals for the 11th Circuit. A copy of the court’s decision in Bowoto v. Chevron Corporation is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-15641.pdf.

Monday, September 13, 2010

German Energy Plan & AICGS Conference, EPA Seeks Fracking Data, China Energy, and Unilever & Maersk Green their Businesses

On Monday, September 13th, I participated in a conference sponsored by the American Institute for Contemporary German Studies (AICGS) as part of its “Transatlantic Climate and Energy Dialogue: Balancing Aspirations with Actions.” The conference was held at the Carnegie Endowment for International Peace in Washington, D.C. After an opening update on climate negotiations from Elliott Diringer of the Pew Center on Global Climate Change, I was on the first panel with my former colleague Miranda Schreurs, who is now the Director of the Environmental Policy Institute at the Freie Universität of Berlin. Miranda discussed the German government’s bold new energy plan that seeks to reduce emissions of greenhouse gases by 40% by 2020, 55% by 2030, 70% by 2040 and 80% by 2050. Environmentalists are upset because the plan would extend the lives of some of the existing nuclear powerplants by 8 to 14 years. See Patrick McGroarty, Germany to Extend Life of Nuclear Reactors, Wall St. J., Sept. 7, 2010, at A17. The plan seeks to obtain 18% of Germany’s primary energy from renewable sources by 2020 and 60% by 2050. Our panel provided “German and U.S. Perspectives on Intellectual Property Rights and Green Technology Transfer”. Also speaking on tech transfer in the second morning panel were Joanna Lewis of Georgetown University’s School of Foreign Service who provided a case study of wind energy in China, Dominic Marcellino of the Ecologic Institute who is tracking tech transfer during the climate negotiations, and Alan Miller of the International Finance Corporation (IFC). Alan, who is one of the co-authors of my environmental law casebook, stressed that while most of the UNFCCC negotiations have focused on public investment in green technology, approximately 80% of the investment is being done by private companies. He explained why the IFC was willing to continue fund state-of-the-art fossil-fueled powerplants despite critics who believe that only renewable energy projects should be funded.

On September 9th, the U.S. Environmental Protection Agency (EPA) sent letters to nine companies requesting detailed data on the chemicals they use in hydraulic fracturing (“fracking”) to crack underground rock formations to release oil and natural gas. The data is to be used as part of a new EPA study of the environmental consequences of fracking. In 2004 EPA released a controversial study finding that the practice was safe, which Congress relied upon to exempt the practice from regulation under the Safe Drinking Water Act. However, there have been many complaints of contamination of underground aquifers near sties where fracking is used, an issued explored by the award-winning documentary film “Gasland” (http://www.pbs.org/now/shows/613/index.html). EPA’s new study, whose results are expected to be published by the end of 2012, is being undertaken in response to a new mandate from Congress. Tom Zeller, Jr., EPA to Study Chemicals Used to Tap Natural Gas, N.Y. Times, Sept. 10, 2010, at B3.

On September 9th the United Steelworkers union filed a 5,800-page complaint with the Office of the U.S. Trade Representative charging that Chinese officials are unfairly subsidizing the production of clean energy technologies, including wind turbines and compact fluorescent light bulbs. Elizabeth Williamson & Ian Talley, Steelworkers Blast China on Subsidies, Wall St. J., Sept. 10, 2010, at A4. Chinese authorities reportedly are scrambling to meet energy efficiency targets contained in the country’s 2006-2010 five-year plan. Faced with the realization that they may come up short of the target, Chinese officials reportedly are even ordering temporary shutdowns of enterprises. Shai Oster, Beijing Gets Tough on Targets for Energy, Wall St. J., Sept. 10, 2010, at A10.

On September 8th, the Unilever Corporation announced that it had made a multi-million dollar investment in Solazyme, Inc., a U.S. company that harvests oil from algae, as a way of moving away from use of palm oil in its food and consumer products. Unilever says that it may take three to seven more years before algal oil could be used as an ingredient in its products, but it is convinced of its potential. Paul Sonne, To Wash Hands of Palm Oil Unilever Embraces Algae, Wall St. J., Sept. 8, 2010, at B1. On September 7th, the Danish shipping company Maersk announced that it would voluntarily switch away from low-cost, dirty bunker fuel to low sulfur fuel when its ships berth in Hong Kong. The move will cost the company an extra $1 million per year during its 850 annual port calls in Hong Kong, but it will greatly reduce air pollution from the ships. Cleaner fuel already is required for ships visiting many European ports and similar requirements will take effect in U.S. and Canadian ports in 2012. Asia is moving much more slowly on the issue and Maersk hopes its Hong Kong initiative, which it said was taken in response to calls from the Hong Kong NGO Civic Exchange, will help spur further action. Bettina Wassener, Maersk to Use Cleaner Fuel in its Hong Kong Shipping, N.Y. Times, Sept. 8, 2010, at B10.

Monday, September 6, 2010

Burger King Greens Palm Oil Supplies, IPCC Reforms, Russia Wheat Export Ban, India Reopens Bhopal Case & Passes Nuclear Liability Law (by Bob Percival

Last week Burger King delighted environmentalists by announcing that it would discontinue purchasing palm oil from Indonesia’s Sinar Mas group in response to an audit assessing the impact of the company’s behavior on orangutan habitat and tropical rain forests. The audit was discussed on this website in a blog post on August 15, 2010. Curiously, Cargill, another major global agribusiness, cited the same audit in refusing to cut its ties to Sinar Mas companies, which are controlled by the Widjaja family. Cargill noted that Sinar Mas has pledged to join the Roundtable for Sustainable Palm Oil (RSPO) and to obtain its certification for all its palm oil operations by 2015. Burger King joins Unilever, Nestle and Kraft in cutting off SInar Mas as a supplier. Anthony Deutsch, Burger King Axes Palm Oil Supplier, Financial Times, Sept. 4/5, 2010at 10. While in Miami last week I spotted a clever Burger King ad on the side of a downtown building near the arena where the Miami Heat basketball team plays. The ad features the smiling Burger King mascot welcoming LeBron James to Miami by saying “King to King: Welcome to My Court.”

Last Monday the group appointed by the InterAcademy Council to review the work of the Intergovernmental Panel on Climate Change (IPCC) recommended that the IPCC improve its capacity to ferret out errors. The panel recommended that the IPCC exercise greater caution in using non peer-reviewed studies and that they more openly discuss dissenting views. Next month the governments that control the IPCC will meet in South Korea to discuss what action to take.

Last week Russia extended its ban on wheat exports until late 2011. The ban was undertaken in part as a response to drought, record heat and rampant wildfires that have destroyed significant parts of the country’s wheat crop. Despite food riots that occurred in Mozambique last Wednesday when the government raised bread prices by 30 percent, global stockpiles of wheat are much greater than they were two years ago, though global wheat prices are up more than 60 percent over the last year. Noting that food prices have risen 5 percent in the last month, the UN Food and Agriculture Organization (FAO) has scheduled a special meeting for September 24 in Rome to discuss global food prices.

Last Tuesday the Supreme Court of India reopened the Bhopal prosecutions after an outcry that the defendants had received sentences that were too light. In June seven former Union Carbide executives were sentenced to two years imprisonment and fines after being convicted of criminal negligence. Following an appeal by India’s Central Bureau of Investigation, the Court said that it would reconsider its 1996 decision that had reduced charges of culpable homicide to criminal negligence. The initial charges could have resulted in prison sentences of up to 10 years. Amy Kazmin, India’s Senior Judges Reopen Bhopal Case, Financial Times, Sept. 1, 2010, at 4. The decision came one day after India’s Parliament approved legislation governing liability for nuclear power accidents. The Indian legislation holds open the possibility that suppliers of equipment for nuclear powerplants can be held liable for accidents, rather than placing liability entirely on the plant’s operators. Jim Yardley, Nuclear Deal Is Approved in India, With Compromises, N.Y. Times, Aug. 31, 2010, at A4.

Sunday, August 29, 2010

India Blocks Mining Project, Russia Blocks Forest Road, China's Mega Traffic Jam, , U.S. Seeks to Bar Climate Change Suit (by Bob Percival)

On Tuesday August 24 Indian environmental minister Jairam Ramesh blocked a major bauxite mining project proposed by the London-based mining conglomerate Vedanta Resources PLC. The project was blocked on thr grounds that Vedanta had failed to comply with a law enacted in 2008 that requires projects located on tribal forest lands to obtain the permission of the tribes living in the area. Ramesh’s decision was taken in response to a report of a committee commissioned by the environment ministry that accused Vdedanta of violating India’s forestry and environmental laws. The decision is viewed as an important precedent that may affect the plans for other projects in the state of Orissa including a steel plant proposed by South Korea’s Posco Company an an auto production facility proposed by Tata Motors. Geeta Anand & Prasenjit Bhattacharya, India Bars Mine in Big Ruling, Wall Street Journal, Aug. 25, 2010, at B3.

In a surprise decision on Thursday August 26 Russian President Dimitri Medvedev suspended the clearing of parts of a 2,500-acre forest area, the Khimki forest near Moscow, that was part of a massive construction project to build a large toll road. The forest is the subject of one of the eight case studies of path-breaking global environmental law cases featured in Professor Oliver Houck’s book Reclaiming Eden (see Nov. 24, 2009 blog post). Yet last year Russian Prime Minister Valdimir Putin issued a decree to remove the forest’s status as a publicly protected green space. The Russian Supreme Court rejected a citizens’ petition to overturn Putin’s decree last March. President Medvedev’s decision does not kill the project, but instead calls for more “public and expert discussions” of its pros and cons prior to construction of the road. Opponents of the project held a protest rock concert in Moscow on Sunday April 22 to publicize opposition to the project. RIchard Boudreaux, Wall Street Journal, August 27, 2010, at A14. The massive, recent fires in Russia seem to be reinforcing a growing realization that climate change poses a severe threat to the country, something that was not appreciated by the country’s leadership just a few years ago. Anthony Giddens, Russia Cannot Afford Climate Inaction, Financial Times, Aug. 27, 2010, at 9.

This week China experienced the world’s most massive traffic jam as trucks carrying coal from inland mines to coastal areas helped cause a 60-mile backup on a road from Inner Mongolia to the port of Qinhuangdao. The traffic jam, which took several days for vehicles to pass through, is a reminder that 70 percent of China’s energy demand is still supplied by coal. China’s railroad lines already are overloaded with coal shipments, leaving more expensive transport by truck as the only available option for some coal shipments.

Last week the U.S. Department of Justice shocked the environmental community by asking the U.S. Supreme Court to vacate a decision by the U.S. Court of Appeals for the Second Circuit that permits a climate change lawsuit brought by states against major utilities with coal-fired power plants to go forward. The September 2009 decision in the case of Connecticut v. American Electric Power reversed a district court decision holding that the lawsuit poses a nonjusticiable political question. (See the September 27, 2009 blog post). While the Justice Department, representing the Tennessee Valley Authority, does not take the position that the lawsuit poses a political question, it maintains that EPA’s efforts to regulate greenhouse gas (GHG) emissions justify blocking the lawsuit. This claim seems a bit of a stretch since EPA has not expressed a specific intent to preempt nuisance law and its nascent regulations on GHG emissions are a far cry from the comprehensive limits on water pollution mandated by law in the Clean Water Act that the Supreme Court said in 1981 preempted the federal common law of nuisance for interstate water pollution. Moreover, this still would not preempt the application of state nuisance law and, in any event, opponents of all GHG emissions controls cannot have it both ways -- if EPA’s GHG regulations are invalid, as they claim, they cannot preempt common law actions. I have written a detailed examination of the history of the preemption of the federal common law of interstate nuisance for water pollution. The Clean Water Act and the Demise of the Federal Common Law of Interstate Nuisance, 55 Ala. L. Rev. 717 (2004).

Last Monday I returned from Miami where I was helping my son move back to college. On Tuesday I greeted Huang Jing, a top Ph.D. student of China’s top public interest environmental law professor Wang Canfa of the China University of Political Science and Law (CUPL). Huang Jing, who served as my student assistant when I taught at CUPL in 2008, has just arrived in Maryland from China and will be a visiting scholar at Maryland this year. While Maryland’s classes all start tomorrow, last Thursday I taught an introductory Constitutional Law class for a really terrific group of new LL.M. students from China, Zambia, Venezuela, and Russia.

Sunday, August 22, 2010

Britain & India to Raise Oil & Nuclear Liability Limits, New Order in Argentina's Mendoza Case, CEQ Report on Offshore NEPA Reviews (by Bob Percival)

Representatives of Britain’s oil industry voted last week to more than double their pooled assumption of liability for oil spills offshore of the United Kingdom and Northern Europe. While Britain has no liability cap on damages from oil spills, under the Offshore Pollution Liability Agreement (OPOL), which became effective in 1975, oil companies have voluntarily agreed each to contribute up to $120 million per incident to pay damage claims not satisfied by the company responsible for the spill. The companies voted to raise each of their obligations to $250 million per incident.

A parliamentary committee in India has agreed to triple the proposed liability limit for suppliers of nuclear power equipment to 15 billion rupees ($321.8 million). The proposal, which is likely to be approved by both house of the Indian Parliament, is expected to clear the way for Indian approval of a 2008 nuclear-power agreement with the United States. The Civil Liability for Nuclear Damage legislation was blocked last month in part by protests that the liability limits were set too low. Abhrajit Gangopadhyay, India Acts to Get U.S. Nuclear Pact, Wall Street Journal, Aug. 19, 2010. The proposal was quickly approved by the Indian cabinet. The legislation contemplates that nuclear power plants will be run by the Indian federal government.

Last week I received a copy of a new order issued on August 10th by the Supreme Court of Argentina in the long-standing Mendoza litigation to clean up of the polluted Matanza-Riachuelo river basin near Buenos Aires. In July 2008 the Court ordered all levels of government and polluting companies to participate in a comprehensive, long-term cleanup operation. In response to the Court’s order, the Argentine Congress created and funded a river Basin Authority to conduct the cleanup under the supervision of the Federal Court of Quilmes. While some polluting facilities have been shut down, the Supreme Court’s latest order reflects its concern that there has been considerable slippage in the implementation of the cleanup plan. The order demands an explanation of the reasons why there has been noncompliance with mandates to reduce industrial pollution, remediate contaminated landfills, expand the potable water supply and improve sanitation, and it requires implementation of a publicly accessible digital information system to enable better monitoring of cleanup operations.

On Monday August 16 the Council on Environmental Quality released a 41-page report on the Minerals Management Service’s compliance with the National Environmental Policy Act with respect to oil and gas development on the Outer Continental Shelf. A copy of the report is available online at: http://www.doi.gov/news/pressreleases/loader.cfm?csModule=security/getfile&PageID=42036. The report was commissioned by the White House on May 14 in response to the BP oil spill in the Gulf of Mexico. It finds that the process of tiered environmental reviews under NEPA was “not transparent,” raising concerns about their adequacy. The report makes several recommendations to “ensure robust environmental reviews for future oil and gas exploration and development activities.” It suggests that the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM) should:

“Perform careful and comprehensive NEPA review of individual deepwater exploration activities, including site-specific information where appropriate. 

Track and take into account all mitigation commitments made in NEPA and decision documents that are used to determine the significance of environmental impacts, from the initial Programmatic EIS through site-specific NEPA analyses and decisions. 

Ensure that NEPA analyses fully inform and align with substantive decisions at all relevant decision points; that subsequent analyses accurately reflect and carry forward relevant underlying data; and that those analyses will be fully available to the public. 

Ensure that NEPA documents provide decisionmakers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low probability catastrophic spills for oil and gas activities on the Outer Continental Shelf. 

Review the use of categorical exclusions for OCS oil and gas exploration and development in light of the increasing levels of complexity and risk – and the consequent potential environmental impacts – associated with deepwater drilling.  Determine whether to revise these categorical exclusions. 

Continue to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted Exploration Plans. 

Evaluate supplementing existing NEPA practices, procedures, and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP Oil Spill.”

Embracing the report, the Department of Interior (DOI) announced last week that it will limit categorical exclusions to “activities involving limited environmental risks” and that it will prepare a supplemental environmental impact statement for oil drilling in the Gulf of Mexico. The American Petroleum Institute (API) criticized DOI’s effort to expand environmental reviews, arguing that it will delay permitting of offshore drilling without providing additional environmental benefits. On August 17 API disclosed plans to hold “citizen rallies” to resist new laws and regulations on oil exploration and development. Stephanie Kirchgaessner and Sylvia Pfeifer, Oil Groups Ready to Fight Tougher Rules, Aug. 18, 2010. The “Rallies for Jobs” will be held in Beaumont, Corpus Christi and Houston, Texas; Farmington, New Mexico; Grand Junction, Colorado; Canton, Ohio; and Peoria, Illinois.

Companies whose securities are traded on Wall Street are pushing back against provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. These include “conflict minerals” provisions that require disclosure of the sources of minerals these companies use, Jean Eaglesham and Jeremy Lemer, Business Groups Lobby Against “Conflict Minerals” Disclosure Rule, Financial Times, Aug. 18, 2010, at 1, and a requirement that oil companies disclose payments they make to foreign government for oil concessions. These provisions were discussed in my May 23, 2010 and July 18, 2010 blog posts. While expressing sympathy for the goal of cutting off the supply of “conflict minerals,” companies are arguing that the SEC should not require detailed tracing of their supply chains. Oil companies are arguing that disclosure of payments to foreign governments will put them at a competitive disadvantage to other companies who are not subject to the disclosure requirement, such as predominately state-owned oil companies like CNOC.