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, January 31, 2010

Copenhagen Pledges, 2010 EPI, Baikal Raid, Int'l & Jordanian Moot Courts

Last week the nations of Brazil, South Africa, India and China (BASIC countries) announced that they would file statements of the “nationally appropriate mitigation actions” they would undertake “voluntarily” to reduce greenhouse gas (GHG) emissions in accordance with Appendix II of the Copenhagen Accord. Last Monday Yvo de Boer, Executive Secretary of the UN Framework Convention on Climate Change (UNFCCC) , issued a clarification (Thttp://unfccc.int/files/parties_and_observers/notifications/application/pdf/100125_noti_clarification.pdf) stating that because the Copenhagen Accord is “a political agreement rather than a treaty instrument subject to signature,” countries can associate themselves with it through “a simple letter or note verbale to the secretariat.”

The U.S. announced its “quantified economy-wide emissions targets” for 2020 in accordance with Appendix I of the Copenhagen Accord. The U.S. target is for a 17 percent reduction in GHG emissions from 2005 levels, consistent with the proposal in the cap-and-trade legislation that passed the House in June. On Friday the White House announced that federal agencies would seek to reduce their GHG emissions by 28 percent by 2020 compared with 2008 levels. The U.S. Department of Defense has set an even more ambitious GHG reduction target for itself of 34 percent by 2020, though it excludes energy use by combat forces. On Friday the state of Massachusetts announced what it called the nation’s most ambitious energy efficiency standards for electric utilities. The standards, which implement the state’s Green Communities Act, call for a 2.4% reduction in electricity use and a 1.15% reductions in natural gas use annually for the next three years. China last week announced the formation of a National Energy Commission chaired by Premier Wen Jiabao to improve coordination of the nation’s energy policy.

On Thursday Yale Professor Dan Esty released the 2010 Environmental Performance Index (EPI) at the World Economic Forum in Davos. The rankings are available online at: http://epi.yale.edu/ Like the U.S. News rankings of law schools and universities, the index is controversial because there is no one correct way to evaluate the myriad of factors that go into environmental performance, much less boil them down to a single number. A year after a new U.S. president with dramatically improved environmental policies took office, it seems strange to see that the U.S. has dropped substantially to 61st place in the global rankings and now ranks below Paraguay. But the EPI certainly has attracted global attention with officials from many countries lobbying for improved rankings.

Last week Russian police raided the offices of Baikal Ecological Wave, an environmental group in Irkutsk that is protesting a plan to reopen a large paper mill on the shores of Lake Baikal. The OAO Baikalsk Pulp & Paper Mill was shut down in 2008 after it was ordered to stop dumping waste into the lake. However, the Russian government recently reversed this order and the plant is about to resume its operations dumping waste in the lake. Russian authorities seized the computers of Baikal Ecological Wave, claiming that it suspected they contained pirated software. The group denies the charge. The Russian authorities deny that the raid was designed to suppress the group’s protest.

On Wednesday the U.S. Securities and Exchange Commission (SEC) voted 3-2 to issue interpretive guidance requiring companies to disclose to investors the financial risks that climate change poses to them. The guidance states that companies should disclose the material risks of legislation and regulations, including international agreements, to control GHG emissions, the indirect financial consequences of business trends caused by reaction to climate change, and the physical impacts of climate change (such as increased losses to insurance companies caused by environmental damage). The SEC’s press release on the guidance is available online at: http://www.sec.gov/news/press/2010/2010-15.htm

On Saturday January 30 Maryland’s team won the Pacific Rounds of the International Environmental Moot Court Competition held at Chapman University in Orange, California. The team of Molly Knoll, April Morton, and William Tilburg won all three of their preliminary rounds against teams from Southwestern, Hastings, and the University of Kansas and then defeated Hastings in the finals. The team is coached by David Mandell and Karla Schaffer who teach Maryland’s Environmental Advocacy course. They now will advance to the international finals in March at Stetson University School of Law where they will compete against the winners of regional finals from all over the world. Maryland’s team competed in the Pacific Rounds because Maryland is hosting the Atlantic Rounds of the North American Finals next weekend.

On Wednesday students in my Global Environmental Law seminar presented five proposals of environmental law problems they developed for use in the Jordanian National Moot Court Competition. As mentioned last month, this competition will use an environmental law problem for the first time in order to increase interest in the teaching of environmental law in Jordanian law schools. Recognizing that environmental problems do not easily translate from one country to another, the students put a lot of effort into developing problems that would be particularly relevant to Jordan.

Sunday, January 24, 2010

Supreme Court Corporate Spending Decision, Climate Data and Slippage in Copenhagen Accord

On a week where I taught my first Constitutional Law class of the spring semester, the U.S. Supreme Court issuing a breathtakingly far-reaching 5-4 decision declaring that the free speech rights of corporations makes it unconstitutional for Congress to prohibit direct corporate spending on political campaigns. While Citizens United v. Federal Election Commission was not an environmental case, the Court’s decision may have more impact on the future of environmental legislation than any other decision by the Court. The decision not only invalidates century-old federal prohibitions on direct corporate spending on political campaigns, but it also strikes down similar limits in dozens of states.

The Court’s decision comes at a time when there has not exactly been a groundswell of concern that corporations have too little influence on our political process. Despite a near economic collapse exacerbated by corporate wrongdoing, the financial industry has invested enormous sums in lobbyists who to date have successfully warded off new regulatory legislation in Congress. An aggressive and expensive lobbying campaign against cap-and-trade legislation by Exxon Mobil and other corporate climate change deniers has stalled such legislation in the Senate. Now corporations will be able to threaten legislators who balk at bending to their wishes with the prospect of unlimited corporate spending directly advocating their defeat. This makes it even more important to cultivate “green” corporations to support progressive legislation, including the many companies who have endorsed cap-and-trade legislation.

The decision was not unanticipated. The Court had held the case over for reargument after it initially was briefed and argued on narrow grounds last Term. Instead of focusing on whether the McCain-Feingold legislation prohibited the showing of an advocacy film attacking Hillary Clinton, the Court asked for briefing and reargument on the much broader grounds on which it ultimately decided the case. The reargument was held in a special session in September perhaps to enable the Court to get its decision out in time to affect the mid-term elections this year. Some critics of the decision liken it to Bush v. Gore in terms of the breadth of its judicial activism and its potential impact on politics (with Republicans lauding it and Democrats aghast). The harsh rhetoric on both sides of the 5-4 divide, with dissenting Justice Stevens spending 20 minutes reading his dissent from the bench, reaffirms the sharp ideological divide on the current Court.

NASA announced this week that the ten years from 2000-2009 were the hottest decade on record with 2009 being the second hottest year since records were kept beginning in 1880. Yet this received less publicity than the announcement by the Intergovernmental Panel on Climate Change that they had made an error in forecasting that Himalayan glaciers would disappear entirely by 2035.

Further erosion in the momentum established at the Copenhagen conference in December was evident this week as UN officials confirmed that they no longer viewed January 31st as a firm deadline for countries to file their commitments to the Copenhagen Accord. UN climate official Yvo de Boer described it as a “soft deadline” and indicated that countries still could file their commitments at any time after next Sunday. Only a handful of countries have submitted their commitments to date. China, India, Brazil and South Africa are meeting this weekend to discuss their next moves.

Monday, January 18, 2010

Supreme Court Takes NEPA GMO Case, Morocco Environmental Charter & FDA on BPA (by Bob Percival)

On Friday January 15 the U.S. Supreme Court announced that it will review a decision upholding an injunction that blocked sales of genetically altered alfalfa seed until an environmental impact statement (EIS) is prepared. The case, Monsanto Co. v. Geersten Seed Farms, No. 09-475 comes from the U.S. Court of Appeals for the Ninth Circuit, the Circuit whose decisions are most frequently reversed by the Supreme Court. The Ninth Circuit’s decision, Geersten Seed Farms v. Johanns, 570 F.3d 1130 (9th Cir. 2009), initially was issued in September 2008, just two months before the U.S. Supreme Court decided Winter v. NRDC. In WInter the Court reversed a Ninth Circuit decision upholding an injunction barring the U.S. Navy from testing a new sonar system pending completion of an EIS, finding insufficient evidence of harm to warrant the issuance of the injunction.

After Winter was decided, the Ninth Circuit amended its Geersten decision to distinguish it from Winter, stating that the district court had not presumed irreparable harm from sales of the genetically altered seed. In February 2007 the district court had blocked further sales of Monsanto’s “Roundup Ready Alfafa” (RRA) seed because it found that the U.S. Department of Agriculture (USDA) should have prepared an EIS to assess the danger that RRA would cross-pollinate with conventional and organic alfafa seed and harm the environment. Monsanto, which had intervened in the litigation against the USDA, sought Supreme Court review of the Ninth Circuit’s decision. Notably, the Solicitor General, representing USDA, opposed Supreme Court review. While agreeing with Monsanto that the district court had applied the wrong legal standard, the Solicitor General noted that the Ninth Circuit had correctly stated the post--Winter standard for issuing injunctions in NEPA cases (including the need to demonstrate likely, rather than simply possible, irreparable harm). Moreover, she argued that the injunction would expire soon because the EIS will be issued (the comment period on the draft EIS will expire on February 16, 2010).

Because the Court agreed to hear the case over the objections of the Solicitor General, it is likely that it will reverse the Ninth Circuit and perhaps instruct lower courts to hold more detailed evidentiary hearings focusing on the likelihood of harm before issuing NEPA injunctions. The government had not specifically requested an evidentiary hearing in this case.

On Thursday January 14, the government of Morocco unveiled its proposed National Charter for the Environment and Sustainable Development. Last summer King Mohammed VI established a national commission chaired by the Secretary General of the Department of Environment and directed it to develop such a charter. Beginning today the Moroccan government will hold a series of regional meetings to seek public input on the charter, which will be available online in four languages at: http://www.charteenvironnement.ma While the English translation of the charter has not appeared on the website yet, it is described there as an effort to make environmental protection a more important national priority and to increase the environmental awareness of Moroccan citizens. The charter reportedly provides for the creation of solid and liquid waste treatment facilities, and wastewater recycling and to require consideration of environment preservation in all development projects. It also reportedly directs that the “polluter pays” principle be implemented through regulations. The final version of the charter is expected to be adopted on April 22 to coincide with Earth Day celebrations.

On Friday January 15, the U.S. Food and Drug Administration (FDA) announced that the chemical bisphenol A (BPA), widely used as a hardening agent for plastics, may not be safe for use in products that come into contact with young children. The FDA endorsed a finding by the National Toxicology Program that BPA may pose “some concern” for children and infants because it has been linked to neurological and other harm. While the FDA does not believe that it has enough evidence to ban the use of BPA, many manufacturers have voluntarily discontinued its use, particularly after the government of Canada announced in 2007 that it was likely to ban BPA as a precautionary measure.

Sunday, January 10, 2010

French Carbon Tax, New Orleans AALS Conference

On Tuesday the French government announced that it would establish a new carbon tax that will take effect on July 1, 2010. The tax will replace one struck down in December by France’s Constitutional Court on the grounds that its exemptions were so numerous that the violated the equality principle in taxation. The new tax is expected to have fewer exemptions while still responding to concerns that companies already subject to the European Union’s cap-and-trade system potentially could be subject to double taxation.

After celebrating my 25th wedding anniversary in Paris on Tuesday, I returned to Washington on Wednesday and then immediately flew to New Orleans to attend the annual conference of the American Association of Law Schools (AALS). This annual gathering brings together law professors from all over the country. It is the first time the conference has been held in New Orleans since Hurricane Katrina devastated the city in 2005. By coincidence on the plane from Washington to New Orleans I was seated next to Professor Tseming Yang from Vermont, which gave us a great opportunity to compare progress on our Global Environmental Law casebook project. At the AALS conference we met with staff from Aspen Publishing, our casebook publisher, who hosted a terrific reception at the Cabildo-Louisiana State Museum overlooking Jackson Square.

At the AALS conference I attended a fascinating “hot topic” session on the tort litigation spawned by Hurricane Katrina. The session, which was moderated by Tulane law professor Oliver Houck, featured presentations by the lawyers handling the lawsuits. These include a takings case against the U.S. Army Corps of Engineers (St. Bernard Parish v. U.S., 88 Fed. Cl. 528 (Fed. Cl. 2009) and a suit seeking to hold the Corps liable for damages under the Federal Tort Claims Act for its negligent maintenance of the Mississippi River-Gulf Outlet (MRGO or “Mr. Go”) that contributed to the storm surge that flooded New Orleans. In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp. 2d 644 (E.D. La. 2009). The lawyers handling these cases described how they were able to overcome formidable legal obstacles to holding the Corps liable through creative lawyering. Lawsuits seeking to hold oil companies liable for harm from climate change, including the Kivalina case and Comer v. Murphy Oil, 583 F.3d 885 (5th Cir. 2009), also were discussed. The Kivalina case is now on appeal to the U.S. Court of Appeals for the Ninth Circuit, while a petition for rehearing en banc is pending in the Comer case. A petition for rehearing en banc also is pending in the Second Circuit in the Connecticut v. American Electric Power lawsuit seeking to require electric utilities to reduce their emissions of greenhouse gases (GHGs). The speakers seemed convinced that the climate change litigation ultimately will be addressed by the U.S. Supreme Court regardless of future action in the U.S. Courts of Appeal.

I also attended terrific sessions on the constitutional issues raised by government efforts to reform financial markets, regulatory oversight and transparency in the Obama administration and adaptation to climate change. Podcasts of the sessions at the AALS conference will be available in the future on the association’s website at: www.aals.org.

On Friday I toured the areas of New Orleans that had been severely damaged by the Hurricane Katrina flooding with a guide who was a resident of the devastated Lower 9th Ward. We first visited the 17th Street Canal where levee walls had failed flooding the Lakeview neighborhood. We then traveled east along the shores of Lake Pontchartrain, through communities around the City Park, Eastern New Orleans, and through the Lower 9th Ward. Despite extensive rebuilding, the damage is still shocking to comprehend. A flash illustration of the flooding is available on line at: http://www.nola.com/katrina/graphics/flashflood.swf

Sunday, January 3, 2010

Happy New Year: Top Developments of 2009, French Carbon Tax, Lithuanian Reactor & Papal New Year's Message

I wish everyone a happy new year. Looking back over the past year, I have thought about the top developments in global environmental law that I have blogged about over the past year. First would be the Copenhagen Conference, the preparations for which dominated much of the global environmental news throughout the year. The conference did not meet initial expectations, but it was not the disaster that opponents of controls on greenhouse gas (GHG) emissions would like to think. It highlighted emerging divisions among developing countries and the rising influence of China, India and Brazil. Other important developments in global environmental law in 2009, in no particular order, include: the environment being on the losing end of all five environmental decisions issued by the U.S. Supreme Court during its Term ending in June 2009, successful settlements of multinational tort litigation in the Saro-wiwa and Trafigura cases, Chevron’s efforts to forestall a large judgment against it for environmental contamination in Ecuador, and President Obama’s inauguration and the substantial changes it produced in U.S. environmental policy (including House passage of cap-and-trade legislation, tightened national fuel economy standards, and EPA’s endangerment finding for greenhouse gas emissions). Here’s hoping 2010 will be a good year for the environment.



Right now I am in Paris with my wife to celebrate our 25th wedding anniversary on Tuesday in one of our favorite cities in the world. Last week France’s Constitutional Council struck down the country’s carbon tax, which was due to go into effect on January 1. The tax, which had been championed by French President Nicolas Sarkozy’s government, was invalidated on the grounds that it violated the equality principle because too many sources of carbon emissions were exempted. The tax was expected to raise 1.5 billion Euros for the French government in 2010. President Sarkozy responded to the court’s decision by pledging to amend the carbon tax to satisfy the court’s concerns. He is is expected to unveil his proposal to the cabinet on January 20. It is likely that the amended carbon tax will not have as many exemptions, which may generate more opposition to it.

The dawn of the new year featured the closing of the Ignalina nuclear powerplant in Lithuania. The closure of the plant was a condition imposed in for the country’s entry into the European Union in 2004 because the plant used a dangerous design similar to the reactor involved in the Chernobyl nuclear disaster in 1986. Many Lithuanians were distressed by the reactor’s closing because it leaves the country temporarily more dependent on energy imports from Russia. The Lithuanian government, in partnership with Estonia, Latvia and Poland, is planning to construct a new nuclear power plant at Ignalina using a modern design, but it will be many years before the plant is online because the construction contract has not yet been signed.

Pope Benedict XVI welcomed the new year by emphasizing the importance of environmental protection to the prevention of global conflict in his message celebrating New Year’s Day as the World Day of Peace. The pope’s message “If You Want to Cultivate Peace, Protect Creation” (available at: http://pinoygreenacademy.typepad.com/pinoy_green_academy/2010/01/green-new-year-message-by-pope-benedict-xvi.html) echoed the famous “Peace with All of Creation” message issued twenty years previously by His Holiness Pope John Paul II.