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.
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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.
Nope. 5 of the 8 "rump" judges have now ruled that, since the panel decision was vacated before the en banc court lost its quorum, the appeal is dismissed.
I am not making this up. See the court's decision issued 5/28/2010.
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