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.”