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, April 25, 2010

ICJ DECISION ON URUGUAY/ARGENTINA DISPUTE, RETURN FROM EUROPE, WHALING COMPROMISE PROPOSAL & EARTH DAY UNVEISCU

On Tuesday afternoon April 20 the International Court of Justice (ICJ) announced its decision in the Case Concerning Pulp Mills on the River Uruguay brought by Argentina against Uruguay. Coincidentally, just minutes before the decision was announced, I was traveling by train through the Hague, where the ICJ is located, on my way from Amsterdam to Brussels in an effort to escape the continued closure of European airspace due to ash from the Icelandic volcano. After my rescheduled Tuesday return flight from Amsterdam to D.C. had been canceled, the earliest return flight to the U.S. I could get was from Brussels to Chicago on Thursday. Yet when I arrived in Brussels on Tuesday afternoon I learned that the Wednesday Brussels to Chicago flight already had been canceled and that it was uncertain if the Thursday flight would go. I discovered, however, that flights south from Brussels were being allowed to take off, so I purchased a ticket to fly from Brussels to Lisbon on the first flight of the day on Wednesday because Lisbon is far enough south to be unaffected by the ash problem.

After boarding the flight to Lisbon at the Brussels airport at 6AM on Wednesday morning, I was informed that due to a mechanical problem we had to switch planes. This delay meant I only had a few minutes to spare at the Lisbon airport before scoring one of the last seats on a Lisbon to Newark flight. But I made the plane, was back in the U.S. on Wednesday afternoon, and flew from Newark to D.C. on Wednesday night. This allowed me to teach my Constitutional Law class in person on Thursday as well as makeup Constitutional Law and Global Environmental Law classes on Friday.

The ICJ judgement, a copy of which is available at http://www.icj-cij.org/docket/files/135/15877.pdf, represents an important development in the history of international environmental law. Yet it also illustrates the limitations of the ICJ (and international law) as means for resolving environmental disputes. By a vote of 13-1 the ICJ ruled that Uruguay had breached its procedural obligation to inform, notify and negotiate with Argentina under a bilateral treaty between the two countries (the 1975 Statute of the River Uruguay) by failing to provide the Administrative Commission of the River Uruguay, a body created by the treaty, with an environmental impact assessment (EIA) before authorizing two large paper mills to be built by Spanish and Finnish companies (ENCE and Botnia) on the River Uruguay. But by a vote of 11-3 the ICJ also decided that Uruguay had not breached its substantive obligations to prevent harm to the river. In May 2006 Argentina instituted proceedings in the ICJ against Uruguay, seeking an order to stop completion of the paper mills. In both July 2006 and January 2007, the ICJ refused to issue such an order and construction of the Botnia mill was completed, while the ENCE project as abandoned. Public hearings in the case were held between September 14 and October 2, 2009 with Argentina asking for damages for pollution of the river by the Botnia mill.

The ICJ found that “the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.” The ICJ did not specify what the scope and content of an EIA must include. Instead it observed that “it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.”

On the question of substantive violations, the ICJ determined that Argentina had not clearly proved that the paper mill was causing harm to the river. In an interesting dissent, Judges Al Khasawneh and Simma argued that the majority had employed a flawed procedure for fact-finding by allowing experts to serve as counsel rather than having the ICJ appoint its own independent panel of experts. A copy of this dissent is available at http://www.icj-cij.org/docket/files/135/15879.pdf. While both Uruguay and Argentina expressed satisfaction with the parts of the decision that favored them, there was no indication that Argentine protesters would stop their blockade of a key bridge between the two countries.

On Thursday the International Whaling Commission (ICJ) unveiled a compromise proposal (http://www.iwcoffice.org/_documents/commission/IWC62docs/62-7.pdf) that would allow limited, temporary resumption of commercial whaling in return for its gradual reduction over a ten-year period. Greenpeace has denounced the proposal, while others argue that it would be a substantial improvement over the status quo in which Japan, Norway and Iceland operate largely outside the system by claiming that they are harvesting whales solely for research purposes. The question whether a compromise is better than a total ban is similar to the issues being considered by the U.S. Food and Drug Administration (FDA) as it tries to formulate a policy on smokeless tobacco products that may deliver nicotine more safely to smokers, but that perpetuate their addiction.


Thursday’s 40th anniversary celebration of Earth Day was a more somber affair than in years past. Plans for an Earth Day press conference to announce a bipartisan Senate cap-and-trade bill to control greenhouse gas (GHG) emissions, cosponsored by Senators John Kerry (D-Mass) and Lindsay Graham (R-S.C.) fell apart. After first announcing that the bill’s unveiling would be delayed for a few days, it now has become clear that Senator Graham is withdrawing his support, leaving the legislation without any Republican co-sponsors. Senator Graham, who has been under intense pressure from fellow Republicans not to endorse GHG emissions control, withdrew as a co-sponsor ostensibly because he is upset that the Senate first will consider an immigration bill and only then the climate change legislation. The Kerry-Graham bill reportedly would offer many carrots to win industry support, including massive subsidies to the nuclear power industry, preemption of state GHG emission control programs, and removal of authority for EPA to implement GHG controls.

Sunday, April 18, 2010

Maastricht Conference, Stranded in Europe by Volcanic Ash, TSCA Reform Bills, New EJRR (by Bob Percival)

On Wednesday April 14 I gave the opening keynote address at a conference on European Integration Between Trade and Non-Trade at the University of Maastricht in the Netherlands. My talk on “Risk, Uncertainty & Precaution: New Directions in Environmental Policy” reviewed the history of environmental risk regulation and lessons relevant to reconciling trade liberalization and environmental protection in the European Union. Noting how events in a remote part of the world now can affect us all, I mentioned how the earthquake in Chile in February slowed down the earth’s rotation (by a millionth of a second per day). Little did I realize that at that very moment a volcano in Iceland was erupting, severely disrupting my return travel plans.

The Eyjafjallajökull volcano, which had begun rumbling in December 2009, initially had erupted on March 20, but its April 14th eruption was more than 20 times larger, spewing a cloud of volcanic ash over northern Europe that shut down air travel beginning on April 15. As a result, when I arrived back in Amsterdam I discovered that my return flight to Washington had been canceled. After exploring every possible option for alternate routes home, it became clear that the best strategy was to stay put given that trains to the south were full and the ash cloud was moving southward, eventually shutting down even some airports in Spain. Thus, I am now stranded in Amsterdam until air travel in the Netherlands can resume. A taxi driver, noting that many Dutch who had lost money in the Icelandic banking collapse were angry that Icelandic voters had vetoed a settlement, said that the Dutch were now saying, “We want their cash, not their ash.”

The Maastricht conference, organized by Professors Ellen Vos and Marjolein van Asselt, was funded in part by the European Commission. It focused on how European integration is affecting national and regional risk regulation policy. Participants in the conference included a terrific group of European law professors, environmental and health officials, practicing lawyers, representatives of industry and environmental groups, graduate students and a member of the European Parliament. Several presentations focused on the battle over regulation of hormone-treated beef and genetically modified organisms (GMOs). There also was considerable discussion of the European Union’s Regulation, Evaluation, Authorisation and Restriction of Chemical Substances (REACH) program, which I noted is significantly influencing chemical regulation throughout the world. While uncertainties remain concerning several aspects of REACH, including how it will be enforced, there was wide appreciation of how far-reaching its requirements are and how its precautionary approach is likely to greatly improve chemical regulation, though at considerable bureaucratic cost. I learned a great deal at the conference, including the fact that the Chinese government has appointed itself to be the “only representative” (OR) of Chinese companies subject to regulation under REACH, which caused me to wonder about the sovereign immunity implications of this move.

On the second day of the conference a Dutch environmental official told me that he was happy to hear that legislation to reform the U.S. Toxic Substances Control Act (TSCA) was about to be introduced in the U.S. Congress. On Thursday Senator Frank Lautenberg introduced the legislation, called the “Safe Chemicals Act of 2010” in the Senate and Congressman Henry Waxman introduced a slightly different bill called the “Toxic Chemicals Safety Act of 2010” in the House last week. In line with what REACH requires for companies selling chemicals in the EU, the legislation would require development and publication of a minimum data set sufficient to determine the safety of all new and existing chemicals, give EPA greater power to require toxicity testing, and shift the burden of proving safety to manufacturers.

At the conference I met an editor of the new European Journal of Risk Regulation who gave me a copy of the journal’s first issue. It looks terrific. The journal is published by Lexxion Verlagsgesellschaft mbH in Berlin. In addition to articles, including one by Professor James T. O’Reilly on “What REACH Can Teach Use About TSCA,” the journal has reports on developments in different areas of risk regulation, case notes, book reviews, and lists of upcoming conferences and events. An online edition of the journal is available at: http://www.lexxion.de/en/ejrr

The University of Maastricht has some terrific environmental law professors including Marjan Peeters, who is the European representative on the governing board of the IUCN Academy of Environmental Law. During the 1970s the University adopted a new approach to legal education by focusing entirely on the use of problems or projects to teach law. While I was told that there has been some waning of student interest in environmental law in Europe in recent years, the job market for environmental law graduates has remained strong even in the face of the global financial crisis. In my talk I recommended Dan Farber’s recent paper on “Uncertainty,” and my hosts noted that Dan recently had given a talk at the university on liability for climate change.

The shutdown of European air traffic is now being called the largest travel disruption in history. It is very frustrating to be grounded by circumstances entirely beyond one’s control. I am hoping to be able to return to the U.S. on Tuesday, the earliest date that my return flight would be able to go if the no-fly zone is lifted by then. Fortunately I am not stranded at an airport. I actually am getting a lot of work done while staying in the top floor room of an historic old canal house mentioned in the book “1,000 Places to See Before You Die.”

Tuesday, April 13, 2010

World Bank Funds South Africa Power Plant, California Climate Law Referendum & Golden Tree Awards

I am in Maastricht, Netherlands right now, having arrived this morning to speak at a conference sponsored by the European Union at the University of Maastricht. The title of my talk is “Risk, Uncertainty & Precaution: New Directions for Environmental Policy.” It will focus on what lessons can be learned from the history of risk regulation to develop sound policies to respond to emerging risks subject to great uncertainty, such as the risks of nanotechnology.

On Thursday April 8 the World Bank voted to approve a $3 billion loan to South Africa to help it complete construction of a 4.8 MW coal-fired powerplant that will be the world’s seventh largest such plant. The United States, Britain and the Netherlands abstained on the vote because the project will emit enormous amounts of greenhouse gases (GHGs) contrary to guidelines developed by the U.S. to support multilateral financing of only “no or low carbon” methods for meeting the energy needs of developing countries. South African officials claim that the plant is desperately needed to boost the country’s economy. A report by the Environmental Defense Fund last year found that the World Bank had approved a total of $37 billion in financing for 88 coal-fired powerplants during the past 15 years. Many of these plants are in Asia and their total emissions will account for three-quarters of those from all coal-fired powerplants in the European Union.

Several oil companies have launched a campaign in California to put a measure on the November ballot that would block implementation of the state’s landmark Global Warming Solutions Act until the economy rebounds. Adopted in 2006, the law requires that statewide emissions of GHGs be reduced to 1990 levels by 2020. Supporters of the law concede that the proposed measure is likely to garner the 434,000 signatures needed to be placed on the ballot. Debate over the measure will focus in part on the economic impact of such cap-and-trade legislation. The California Air Resources Board now predicts that California’s program will result in a net gain of 10,000 jobs by reducing energy bills through greater efficiency investments while sponsors of the ballot measure project net job losses.

On Wednesday April 7 Maryland’s Environmental Law Program hosted its annual “Golden Tree” awards ceremony for the short documentary films students made in my Environmental Law class. “Environmental INJustice,” a film about environmental justice issues in a Baltimore neighborhood, won Best Picture, as well as awards for Most Educational FIlm, Best Narration, and Best Cinematography. The film was made by Nancy Lineman, Holly Davaser and Elsa Clausen-Michels. “Just a Reminder,” an entertaining film about the process of deciding what to make a film about, won awards for Best Acting, Best Sound, and Best Screenplay. Other films winning Golden Trees included: “Believe,” a clean coal parody that won Best Use of Humor. “The Tale of Corn,” a film about the environmental impacts of ethanol use, won Best Animation. “Six Stages in the Development of U.S. Environmental Law” won Best Use of Special Effects. “Environmental Awareness,” which revealed how little ordinary law students know about current environmental events, won an award for Best Interviews and “Bike Club” won a special judge’s award.

The Major League Baseball season opened last week. After teaching my Constitutional Law class on Monday morning April 5, I dashed to Nationals Park in D.C. just in time to see President Obama throw out the ceremonial first pitch. During the weekend I accompanied more than 50 Maryland law students to Charlottesville, Virginia for UVA’s annual national law school softball tournament. While the team I played on won all three of our games on Saturday and the first elimination round on Sunday, we lost in the Round of Sixteen as did the other Maryland team who advanced that far. Congratulations to Florida Coastal for winning the championship from among the 72 teams fom 53 law schools in the coed division. Photos of the tournament can be viewed online at: http://gallery.me.com/rperci/100668.

Monday, April 5, 2010

Clinic Defense, Green Heroes of China, Offshore Drilling, French Natural Resource Damages, Ecuador Arbitration

As reported last week, Maryland’s law faculty have been fighting back against the state legislature’s threat to withhold funds from the school to punish our Environmental Law Clinic for bringing a citizen’s suit alleging that Perdue Farms has violated the Clean Water Act. On Monday I appeared on the Mark Steinor radio show on WEAA-FM in Baltimore to present our side of the story. Two state senators - Lisa Gladden and Jim Brochin - who support the clinic were on the show with me, as well as state delegate Richard Sossi who advocated cutting our funds. A podcast of the broadcast is available at: http://www.steinershow.org/radio/the-marc-steiner-show/march-29-2010-hour-2. Through the hard work of Rena Steinzor, Jane Barrett, Dean Phoebe Haddon and others, the clinic received a terrific outpouring of support. More than 450 law faculty and 50 deans signed a letter supporting us. The president of the American Bar Association, the Executive Director of the American Association of Law Schools, 39 environmental law clinic faculty, and many others wrote letters to the legislature condemning its threat to withhold funds. These expressions of support can be viewed online at: http://www.law.umaryland.edu/about/features/enviroclinic/support.html. In the face of all this support, the House voted on Friday to remove the threat to withhold funds from the budget bill. Our clinic still will be asked to report non-privileged information, but it will not be a condition for the university receiving any of its funds.

On Wednesday I appeared on WYPR-FM’s Midday with Dan Rodricks to discuss the constitutionality of the health care reform legislation’s mandate to purchase health insurance. This is a subject my students and I have been discussing in my Constitutional Law class. A podcast of the broadcast is available at: http://stream.publicbroadcasting.net/production/mp3/wypr/local-wypr-893737.mp3

When in China last month, I discovered that the March issue of Esquire magazine’s Chinese edition featured “Green Heroes of China” including my friends Wang Canfa and Zhang Jingjing. But it also featured many other Chinese environmentalists. Their photos can be viewed online at: http://pic.green.sohu.com/group-206198.shtml#m=b&g=206198&p=1779664 My friend Mary O’Loughlin, a Fulbright researcher at the University of Wuhan has put together a translation of this portion of the magazine that I have posted on my parallel blog at www.globalenvironmentallaw.com for anyone who wishes to learn more about who the “Green Heroes” are.

This week President Obama announced that he would lift a prohibition on offshore oil drilling off parts of the U.S. coastline in the Eastern Gulf of Mexico, the Atlantic, and Alaska, while continuing to prohibit such drilling off the coasts of California and New Jersey. This move is viewed as part of the administration’s efforts to build a broader coalition for legislation to control greenhouse gas (GHG) emissions by promoting measures popular with Republicans. On April 1 the administration finalized its previously announced increase in fuel economy standards beginning with 2012 model year vehicles.

On Tuesday March 30 a French appeals court upheld a 200-million Euro award against the oil company Total for environmental damage caused by the 1999 oil spill from the tanker Erika off the coast of Brittany. The award will be paid by Total and Italian shipping and maritime certification companies to the French government and NGOs like the League for the Protection of Birds. The decision represents the first time a French court has awarded damages for ecological injuries, what is referred to as “natural resource damages” under U.S. law.

On Tuesday March 30 an international arbitration panel in the Hague awarded Chevron $700 million under the Bilateral Investment Treaty for oil that Ecuador allegedly failed to pay for during the 1990s. The claim is separate from the ongoing $27 billlion litigation over Chevron’s potential liability for environmental damage in the Oriente region of Ecuador. The arbitration panel ruled that Ecuador had violated the treaty by failing to provide Chevron with an effective means to recover payment for the oil in the courts of Ecuador. Lawyers for the plaintiffs in the litigation against Chevron over environmental damage in the Oriente are appealing to the U.S. Court of Appeals for the Second Circuit district Judge Leonard Sand’s March 11 refusal to block Chevron’s pursuit of a separate arbitral claim in the Hague premised on the Ecuadoran judiciary’s handling of the Oriente damage litigation.