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, May 23, 2010

Graduation, Gulf Oil Spill, Congo Minerals Reporting & China Trip

On Friday May 21 the University of Maryland School of Law held its graduation ceremonies. Judge Andre Davis of the U.S. Court of Appeals for the Fourth Circuit gave one of the best commencement addresses that I had ever heard. Twenty-nine of the students (more than 10% of the graduating class) qualified for the certificate of concentration in environmental law by earning at least 17 credits in environmental courses, including the required survey Environmental Law course, and by satisfying experiential learning and research requirements. On Thursday May 20 we held our annual pre-graduation awards ceremony to recognize these students. Dean Haddon presented the students with their certificates of concentration.

Enormous quantities of oil continue to pour into the Gulf of Mexico as a result of the blowout of the Deepwater Horizon oil platform. Unlike spills from oil tankers whether there is a finite amount of oil contained in the ship, here the spill is continuing and it appears to be much larger than originally estimated. This week an effort was made in the U.S. Senate to amend the Oil Pollution Act to raise the limit on liability for spills from oil platforms from clean up costs plus $75 million to clean up costs plus $10 billion. However, Republicans in the Senate blocked the effort. Bobby Jindal, the governor of Louisiana, is asking the U.S. Army Corps of Engineers to suspend environmental reviews and authorize immediate dredging to construct sand barriers to prevent some of the oil from reaching shore, an idea that has not been embraced by environmental scientists.

On Thursday May 20, the U.S. Senate by a vote of 59-39 passed its version of the Obama administration’s financial reform legislation. While the legislation does not address environmental issues, it does contain an unusual provision that could break some new ground toward future efforts to green corporations’ supply chains. The bill approved by the Senate requires any publicly traded company using particular minerals as primary ingredients in their products to certify whether they originated in the Congo or surrounding countries. The minerals include wolframite, widely used as a source of tungsten in lightbulbs and other electronic products, gold, cassiterite, and columbite-tantalite. The bill requires the companies to detail what steps they have taken to ensure that the minerals do not benefit armed groups in Africa. The provision was added to the bill by voice vote after being introduced by Senator Sam Brownback (R-Kansas). Edward Wyatt, Congo Minerals Provision Becomes Part of Financial Bill, N.Y. Times, May 22, 2010, p. B8.

I am leaving for China in a few hours. I will be arriving in Shanghai on Monday night and visiting the World Expo there on Tuesday and Wednesday. On Thursday I will fly to Beijing to participate in conferences on tort law and climate change.

Sunday, May 16, 2010

Return to U.S., Chesapeake Bay Settlement, Kerry-Lieberman Climate Bill & EPA GHG Regulations (by Bob Percival)

On Monday May 10 I returned to the U.S. from the Middle East. I flew from Tel Aviv to Frankfurt and then from Frankfurt to Washington. The flight from Frankfurt to Washington took two hours longer than usual because the plane had to fly much further north than normal to avoid a cloud of ash from the Eyjafjallajokull volcano in Iceland.

On Tuesday May 11 the Chesapeake Bay Foundation announced that it had reached a settlement of its lawsuit against the U.S. Environmental Protection Agency (EPA) that sought to force more aggressive action to clean up the Chesapeake Bay. In the settlement EPA promises to require more stringent limits on pollution flowing into the Bay and to adopt more specific goals and timetables for achieving pollution reductions. The settlement was greeted with skepticism in some quarters because there have been so many previous promises of future action to clean up the bay during the last several decades. A summary of the settlement is available at: http://www.cbf.org/Page.aspx?pid=1547. EPA is promising to adopt new controls on pollution from agriculture by Dec. 15, 2014, but these are likely to face stiff local opposition as illustrated by the backlash spawned against the Maryland clinic when it sued to enforce existing regulations (see March 28 & April 5 blog posts).

On Wednesday May 12 Senators John Kerry (D-Mass.) and Joseph Lieberman (I-Conn.) unveiled the “American Power Act,” their long-awaited bill to control emissions of greenhouse gases (GHGs). The legislation seeks to reduce GHG emissions by 17% from 2005 levels by 2020 and by 83% by 2050, the same targets as in the legislation that passed the House last June. The bill would create separate regulations for the transportation, utility and manufacturing sectors. In response to the ongoing massive oil spill in the Gulf of Mexico, the legislation would let coastal states ban offshore drilling within 75 miles of shore. In an effort to attract Republican support, the bill would expand federal loan guarantees for new nuclear powerplants. It also would authorize the imposition of tariffs on goods from countries that do not adopt similar restrictions on GHG emissions. Despite endorsements from an impressive array of industry groups, the bill faces long political odds in the face of a likely Republican filibuster in the Senate, especially after Senator Lindsay Graham withdrew his support for the bill (see April 25 blog post). A copy of the bill, which is 987 pages long, is available online at: http://kerry.senate.gov/americanpoweract/pdf/APAbill.pdf. Summaries of the bill are available at: http://kerry.senate.gov/americanpoweract/intro.cfm.

On Thursday May 13, EPA Administrator Lisa Jackson announced that EPA had adopted a final rule regulating emissions of GHGs from the largest stationary sources under the Clean Air Act (CAA). Beginning in January 2011, sources seeking CAA permits that increase their emissions of GHGs by 75,000 tons per year will be covered by the regulations. Beginning in July 2011 all new facilities that emit 100,000 tons per year of GHGs also will be covered. EPA estimates that facilities responsible for 70% of GHG emissions from stationary sources will be covered by the rule. A copy of the final rule is available online at: http://www.epa.gov/nsr/documents/20100413final.pdf. A fact sheet describing the rule is available at: http://www.epa.gov/nsr/documents/20100413fs.pdf. It is anticipated that EPA regulation of GHG emissions under the CAA will increase pressure on Congress to adopt legislation to supplant these regulations with a more comprehensive, national control scheme.

This week I agreed to teach a two-week course in Comparative Environmental Law as part of Vermont Law School’s summer program. The class will be held during the last week in July and the first week in August. I will be replacing my Global Environmental Law co-author Tseming Yang who will be taking a leave of absence from Vermont Law School on June 1 to join EPA where he will work on international issues for EPA General Counsel Scott Fulton.

Next Sunday I will be flying to China to participate in two conferences - one on China’s new tort law sponsored by the Natural Resources Defense Council’s Beijing office and another on climate change at Renmin University. Before I leave I plan to finish grading the 26 papers that students wrote in my Global Environmental Law seminar. The papers cover a very wide range of topics, including how Phnom Penh, Cambodia cleaned up its drinking water, regulation of space-based solar energy generation, and comparisons of how different countries protect endangered species, regulate water pollution, and toxic substances such as mercury, lead, asbestos, and coal slurry waste.

Sunday, May 9, 2010

Middle East Trip: Jordanian Moot Court Competition, Jordan River Study & Enforcement

I have been in the Middle East for the last week. On Monday I toured Jerusalem and on Tuesday I presented a paper on “Liability for Environmental Harm and Emerging Global Environmental Law” to the Buchmann Faculty of Law at the University of Tel Aviv. Dr. David Schorr, the chair of the Law and Environment Program at the Faculty of Law, served as my host. My presentation was followed by a lively discussion that included students and faculty from other parts of the university, including Prof. Yehuda Kahane, the director of the Alfred Akirov Institute for Business and the Environment. I really enjoyed the dialogue and I also appreciated receiving many written comments on my paper. After the presentation I had a really enjoyable dinner with several of the faculty in downtown Tel Aviv.

On Wednesday morning I traveled overland to Amman, entering Jordan from Israel at the northernmost border crossing near the Syrian border. I arrived in Amman in time to participate in the opening of the Fourth Jordanian National Moot Court Competition on Wednesday afternoon. For the first time ever the competition used an environmental law problem, one that had been designed by students in my Global Environmental Law seminar at Maryland. I spoke at the opening briefing for judges of the competition, who included 18 judges and 8 lawyers. The competition was held in actual courtrooms at the Palace of Justice in Amman. A total of 165 law students signed up for the competition, which ultimately featured 14 teams from seven Jordanian law schools. The competition was co-sponsored by the Jordanian Ministry of Justice and the American Bar Association’s Rule of Law Initiative.

After a preliminary round on Wednesday, eight teams advanced to the quarterfinals on Saturday. Teams from Al Al Bait University, Jordan University, Mutah University and Philadelphia University won the quarterfinal rounds and advanced to the semifinals. The teams from Al Al Bait and Jordan University then won the semifinal rounds and advanced to the championship round. After a terrific argument before five judges in the final round, Al Al Bait prevailed. Jordanian Minister of Justice Ayman Odeh presented cash prizes of 500 JDs ($700 USD) to the first place team, 350 JDs ($500 USD) to the second place team, 250 JDs ($350 USD) to the third place team and 150 JDs ($210 USD) to the fourth place team. US AID Mission Director Jay Knott awarded free English language courses at the American Language Center to the eight law students who made the semifinals. A gallery of photos of the competition can be viewed online at: http:/gallery.me.com/rperci/100676.

I was very impressed with how poised the students were and how aggressively they pressed their cases. It also was impressive to see the students and judges tackling an environmental law issue even though most of them had little previous experience with this area of law. I am hoping that a Jordanian law school will become the first in the Middle East to enter the International Environmental Law Moot Court Competition next year. While the legal profession in Jordan has been dominated by men and nearly all the judges and attorneys who judged the competition were male, seven of the eight law students who made the semifinals and all four of the students in the championship round were women. This week 18 of the 40 law graduates who were selected for Jordan’s judicial training institute to become future judges were women, so women are making inroads.

The problem used in the Jordanian moot court competition involved a conflict over water use between an environmental group seeking to restore a forest area and growers of date palms. Water is the premier environmental issue in the Middle East, as illustrated by a draft of a study released at a conference in Amman last week by Friends of the Earth Middle East. The study, Towards a Living River Jordan, warned that large stretches of this historic river could soon dry up unless steps are taken to reduce the diversion of 98% of its flow. Ironically, the study noted that efforts to clean up the river by requiring treatment of wastewater dumped into it actually have reduced the river’s flow because the treated wastewater is then used for irrigation rather than being pumped into the river. The study, written by Jordanian, Israeli, and Palestinian experts, proposes specific conservation strategies each government could take for restoring the river, which also could help halt the precipitous decline in the level of the Dead Sea. A copy of the study is available at: http://www.foeme.org/index_images/dinamicas/publications/publ117_1.pdf

Enforcement of the environmental laws remains a critical issue in the Middle East as in many developing countries. While visiting Tel Aviv University, I learned that Israel at times has used private groups to assist with criminal enforcement of its environmental laws, though the prosecutions fail sometimes because of evidentiary problems. A Tel Aviv newspaper reported that the Israeli Agriculture Ministry has drafted a regulation that will require herders, as a condition for receiving permits to graze livestock on designated pasture lands, to report illegal dumping or illegal construction on those lands. Samuel Friedman, the official responsible for regulating pasturelands, explained: “There is a mutual interest between the state on the one hand, and the shepherds and cowherds on the other. We don’t want intruders to put up illegal farms or others to dump their construction waste there. The herders want the area to be clear for the benefit of their sheep and cattle, and that’s why we’re asking every permit holder to immediately report any illegal activity they witness.” Yuval Azoulay, State Wants Herders to Police Grazing Lands Against Illegal Builders, Haaretz, May 5, 2010, p. 4.

Sunday, May 2, 2010

Gulf Oil Spill, Comer En Banc Dismissed, NEPA GMO Argument, Israel, Oil Drilling in Uganda Park, Australia Climate Legislation Postponed

I arrived in Israel on Saturday morning - a new country for me, by my calculation the 81st country I have visited. I am staying in Tel Aviv where I will be presenting a paper on “Liability for Environmental Harm and the Emergence of Global Environmental Law” at Tel Aviv University on Tuesday. On Wednesday morning I will travel by car to Amman, Jordan to attend the Jordanian National Moot Court Competition that is using an environmental law problem for the first time - a problem drafted by the students in my Global Environmental Law Seminar (see January 31 blog entry).

An explosion at the Deepwater Horizon oil rig operated by Transocean Ltd. for the British oil company BP killed 11 workers and created a massive oil spill in the Gulf of Mexico that threatens to eclipse the Exxon Valdez oil spill in size. The accident happens at a most inconvenient time for the Obama administration’s plan to expand U.S. offshore oil drilling in an effort to build bipartisan support for cap-and-trade legislation. On Thursday the Wall Street Journal reported that the oil rig lacked a remote-control shutoff device called an acoustic switch. The device, which is not required in the U.S., is used on nearly all offshore oil rigs in Norweigan and Brazilian waters as a third line of defense if normal shutoff mechanisms fail as they have in this blowout. Russell Gold, Ben Casselman & Guy Chazan, Oil Well Lacked Safeguard Device, Wall St. J., April 29, 2010, p. A1.

As reported in this blog on March 8, the U.S. Court of Appeals for the Fifth Circuit announced on March 1 that it had granted a rehearing en banc in the Comer v. Murphy Oil USA case. In this case a panel of the Fifth Circuit had reversed a district judge’s dismissal of a lawsuit against oil companies by Katrina victims who allege that emissions of greenhouse gases (GHGs) had contributed to climate change that exacerbated the harm they suffered from the hurricane. On Friday afternoon the U.S. Court of Appeals for the Fifth Circuit released the following order in the Comer litigation: "The parties are hereby notified that since the en banc court was constituted, new circumstances have arisen that make it necessary for another judge to recuse, leaving only eight members of the court able to participate in the case. Consequently, this en banc court has lost its quorum, precluding the court from acting on the merits of the case. Accordingly, arguments scheduled for May 24, 2010, are canceled. Further notification to the parties will follow." The Fifth Circuit currently has 17 authorized judges, with one vacancy, so eight of the existing judges apparently have had to recuse themselves from the case for reasons that are not disclosed. Due to the dismissal of the en banc rehearing, unless the panel decision is reviewed by the U.S. Supreme Court, the case presumably will proceed to trial.

On Tuesday April 27, I invited my environmental law students to join me at the U.S. Supreme Court to watch the oral argument in Monsanto v. Geertson Seed Farms, the second and last environmental case the Court heard this Term. The case involves the standard for issuing injunctions to remedy violations of the National Environmental Policy Act (NEPA). NEPA consistently loses in the Supreme Court, but the argument did not seem to go well for Monsanto who asserts that it should be able to continue selling seeds for genetically modified alfalfa while a belated environmental impact statement (EIS) is prepared for the product. Respondents argued that Monsanto lacked standing because even if the injunction that prevents them from selling the seeds is lifted they could not be marketed because new approvals would be needed. This argument spawned some questions about the respondent’s standing, reinforcing the discomfort I feel whenever environmental interests try to challenge another party’s standing.

The Ugandan government is rushing ahead with a plan by a consortium of foreign oil companies (Tullow Oil, Total & CNOOC) to drill for oil in the country’s Murchison Falls National Park . Aryamanya Mugisha, executive director of Uganda’s National Environmental Management Authority (NEMA), explains that “As much as we need to protect the environment, oil is an important resource for the country if properly managed.” Will Connors & Nicholas Bariyo, Uganda Seeks to Reconcile Oil, Nature, Wall St. J., April 29, 2010, p. A13. Ugandan environmentalists have sued in an effort to force the government to disclose its production-sharing agreement with the oil companies who have yet to establish oil-spill contingency plans.

On Tuesday Australian Prime Minister Kevin Rudd announced that he would postpone for two years an effort to win enactment in Parliament of a comprehensive program to control emissions of GHGs. The postponement will delay legislative action until after the next Australian national election.

German prosecutors are investigating what they allege is a $240 million tax evasion scheme involving the sale of carbon emission allowances. Last week they searched for evidence in the offices of Deutsche Bank and RWE who are cooperating in the investigation and are not suspected of wrongdoing. Ukraine’s new government announced last week that it is investigating how the previous government used funds received from the sale of carbon emissions offsets to Japan in 2009.