Comer En Banc, Chicken Waste Suit, China Tobacco Clinic, CIEL 20th, Fordham Conference

On Monday March 1 the U.S. Court of Appeals for the Fifth Circuit announced that it had granted a petition for rehearing en banc in the case of Comer v. Murphy Oil USA. The court’s action vacates the October decision by a three-judge panel holding that climate change did not raise a political question that would prevent trial of a lawsuit brought by victims of Hurricane Katrina who allege that oil companies contributed to climate change that exacerbated their hurricane damage. The court will rehear the case en banc in late May 2010. It is possible that the en banc court could follow the suggestion by Judge Davis in his concurrence in the panel decision that, while the case is justiciable, the plaintiffs have failed to allege facts to establish that the defendants’ actions were the proximate cause of their injury. The U.S. Court of Appeals for the Ninth Circuit is currently hearing an appeal of the Native Village of Kivalina v. ExxonMobil, where another federal trial court dismissed an Alaskan village’s claims for damages due to climate change as raising a nonjusticiable political question.

On Monday March 1 the University of Maryland Environmental Law Clinic filed a landmark lawsuit to challenge chicken manure management practices that pollute the Chesapeake Bay. Plaintiffs Assateague Coastkeeper, the Assateague Coastal Trust and the Waterkeeper Alliance filed a citizen’s suit alleging that a large chicken farm in Worcester County, Maryland, and the giant chicken producer Perdue Farms, Inc. violated the Clean Water Act. Environmental Clinic Director Jane Barrett, Fellow Tina Meyers and clinic students have done a terrific job preparing this case.

This has been a really busy week as I prepare to lead a group of 40 Maryland law students and alums on a spring break tour of China departing next Friday. On Wednesday we had an orientation session for the group and it looks like it will be a spectacular trip. On Monday I met a group of professors from the China University of Political Science and Law (CUPL) in Beijing who were visiting Maryland to consult with Professor Kathleen Dachille, director of our Tobacco Control Clinic. CUPL, where I taught as a Fulbright Scholar two years ago, is in the process of establishing a similar clinic, confirming the growing interest in tobacco control initiatives in China.

On Tuesday I met with Jorge Guzman, Coordinator for the Environmental Secretariat established by the Dominican Republic-Central America-U.S. Free Trade Agreement (DR-CAFTA). In August 2004 the U.S. signed the agreement, the first between the U.S. and smaller developing countries (Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua). Like the North American Free Trade Agreement (NAFTA), DR-CAFTA establishes a procedure for citizen complaints about environmental conditions. Jorge Guzman reported that there have been six environmental complaints filed since the procedure was launched in 2006. He is working to enhance understanding of environmental law in Central America and I hope to be able to assist him in this worthy cause. I am grateful to Professor Carmen Gonzalez from Seattle University Law School for putting Mr Guzman in contact with me.

On Tuesday night I attended the 20th anniversary celebration of the Center for International Environmental Law (CIEL). The event was held at the U.S. Botanic Gardens at the foot of Capitol Hill. It gave me a great chance to catch up with many of the people working in the global environmental law field today, including some of my former students and a current student who is interning at CIEL.

On Friday I spoke at a conference on Environmental Litigation and Corporate Social Responsibility at Fordham Law School. The Fordham law students who organized the conference, including Elizabeth Marcon, did a terrific job. Professor Ronnie Chatterji from Duke’s Fuqua School of Business opened the conference by discussing how difficult it is to measure corporate social responsibility (CSR). Carol DInkins of Vinson & Elkins discussed CSR from the perspective of counsel to corporations. Professor Lakshman Guruswamy from the University of Denver explained why international law is not well-suited to influencing corporate behavior in this area. Professor Martha Judy of Vermont Law explored how the Superfund legislation (CERCLA) influences corporate behavior. Professor Hope Babcock from Georgetown proposed using contract law to improve CSR. Tony Roisman illustrated how you do not need a fancy powerpoint to hold an audience’s attention with an inspiring speech about why litigation remains an essential tool, despite its difficulties. I gave the final presentation of the day on why the future of corporate social responsibility is global in light of the rapid development of global environmental law. Papers prepared for the conference will be published in the Fordham Environmental Law Review.