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, June 27, 2010

Monsanto Decision, Deepwater Drilling Moratorium Overturned, Bhopal Initiatives, Whaling Conference & EPA Air Toxics Delays

On Monday June 21 the U.S. Supreme Court issued its decision in Monsanto Co. v. Geertson Seed Farms, a case involving a challenge to an injunction issued in response to a violation of the National Environmental Policy Act (NEPA) (see the May 1, 2010 blog posting for a discussion of the oral argument in this case). The case involved an injunction prohibiting nearly all planting of genetically-altered alfafa until an environmental impact statement (EIS) is completed by the Animal and Plant Health Inspection Service (APHIS). After the injunction was affirmed by the U.S. Court of Appeals for the Ninth Circuit, intervenor Monsanto Company, which produces the seed, sought review in the U.S. Supreme Court. When the Court granted review it was widely expected that the decision would further flesh out the standards for issuing injunctions in NEPA cases as discussed in last Term’s Winter v. NRDC decision. Tthe Court reversed the injunction by a 7-1 vote, continuing its perfect record of ruling against environmental interests in every NEPA case it has ever heard. However, it did so on very narrow grounds (that the injunction was broader than necessary) so the decision is unlikely to have much impact on future NEPA cases. The Court also rejected challenges to the standing of both petitioners and respondents, upholding the standing of farmers who feared gene flow to their non-genetically-altered alfafa.

Ironically, while the Supreme Court reiterated in Monsanto that an “injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course,” the following day a federal judge in Louisiana had no trouble quickly issuing an injunction blocking the Department of Interior’s temporary moratorium on deepwater oil drilling. In Hornbeck Offshore Services, L.L.C. v. Salazar federal district judge Martin Feldman held that Secretary of Interior Ken Salazar had acted arbitrarily on May 28 when he issued a 6-month moratorium on deepwater oil drilling in response to the Deepwater Horizon oil spill. A copy of Judge Feldman’s decision is available online at: http://www.laed.uscourts.gov/GENERAL/Notices/10-1663_doc67.pdf. The decision is controversial because Judge Feldman held stock in oil services firms up until a few hours before he issued his decision. On Thursday Judge Feldman refused the government’s request to grant a stay of his injunction pending appeal. The government has asked the U.S. Court of Appeals for the Fifth Circuit to issue a stay. Even though the spill continues to gush tens of thousands of barrels of oil daily into the Gulf of Mexico, the state of Louisiana supported the oil industry in seeking to lift the moratorium.

The Interior Department’s moratorium does not apply to BP’s controversial “Liberty” project in Alaska because it is located on an artificial island three miles off the coast of the Beaufort Sea. In this project BP plans to drill two miles under the sea and then six to eight miles sideways to reach an oil deposit. See Jan Urbina, BP Is Pursuing Alaska Drilling Some Call Risky, N.Y. Times, June 24, 2010, at A1; Tim Dickinson, BP’s Next Disaster, Rolling Stone, July 8-22, 2010, at 61.

On Thursday June 24 the government of India announced a new effort to seek the extradition of former Union Carbide chairman Warren M. Anderson from the United States to stand trial for the December 1984 Bhopal disaster. The government also announced that it will pay $22,000 to families of those killed in the disaster and $4,000 to those with renal failure or cancer caused by the chemical release. The government also promised to clean up toxic contamination at the abandoned plant that was the site of the accident.

At its annual meeting held in Morocco last week, the International Whaling Commission failed to reach agreement on a compromise proposal discussed in the blog post of April 25, 2010. The proposal would have authorized limited commercial whaling in return for closing a loophole that his being used by Japan, Iceland, and Norway to continue to kill large numbers of whales ostensibly for scientific research purposes. The whaling nations vigorously opposed the notion that commercial whaling eventually should be phased out.

On Wednesday June 23 the Inspector General of the U.S. Environmental Protection Agency (EPA) issued a report criticizing the agency’s failure to meet deadlines for regulating toxic air pollutants. The report noted that more than a decade after EPA issued its Urban Air Toxics Strategy, the agency has failed to implement key aspects of this strategy. The report, Key Activities in EPA’s Integrated Urban Air Toxics Strategy Remain Unimplemented, is available online at http://www.epa.gov/oig/reports/2010/20100623-10-P-0154.pdf. EPA officials claim that budget cuts have made it difficult to implement the strategy. Yeganeh June Torbati, EPA Lags on Setting Some Air Standards, Report Finds, N.Y. Times, June 27, 2010, at A14. EPA has extimated that 2 million Americans live in areas where their lifetime risk of getting cancer from exposure to toxic air pollution is greater than 1 in 10,000.

On Friday my wife Barbara was released from the hospital after major cancer surgery. She will start chemotherapy as soon as she has fully recovered from the surgery, probably at the end of July. We appreciate all the kindness shown to us by everyone during this difficult time, see http://www.caringbridge.org/visit/barbarapercival, particularly the wonderful people who have arranged to bring us dinners every evening.

Monday, June 21, 2010

Stop the Beach Decision, Nigerian Environment & World Cup (by Bob Percival)

On Thursday June 17 the U.S. Supreme Court issued its long-awaited decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (see Dec. 6, 2009 blog entry concerning the oral argument). The case involved a challenge to a Florida beach replenishment program by a group of beachfront property owners who claimed that it constituted a taking of their property without payment of just compensation. Under Florida’s Beach and Shore Preservation Act, prior to the state funding a beach replenishment project, an “erosion control line” is set at the mean high water line, the existing boundary between state-owned and private property. The Act provides that any accretions of land seaward of the erosion control line (including those caused by the project pumping additional sand) then belong to the state, but beachfront property owners are guaranteed continued access to the water over the state-owned accretions.

The Court unanimously rejected the claim that the beach replenishment program constituted a regulatory taking, agreeing with the Florida Supreme Court that it did not deprive the landowners of any vested property rights. However, in a plurality opinion by Justice Scalia, four Justices endorsed for the first time the notion that a court decision could constitute a “judicial taking” if it eliminates established property rights. Justice Scalia argued that the takings clause is not limited to any particular branch of government. The other four Justices participating in the case (Breyer, Ginsburg, Kennedy & Sotomayor - Justice Stevens recused himself because he owns beachfront property in Florida) found it unnecessary to decide the judicial takings issue because there had been no change in property rights in this case. While only four Justices embraced the notion of judicial takings, Justices Kennedy and Sotomayor suggested in a concurring opinion that a decision eliminating existing property rights could violate the due process clause. This suggests that as state courts grapple with difficult issues of state property law raised by climate change-induced sea level rise, federal courts will be looking over their shoulder. I have posted a more extensive analysis of this case on the new Maryland law faculty blog “Quoth the Raven” at: http://umlaw.typepad.com/quoth/ (June 18, 2010 entry).

As the massive oil spill continues in the Gulf of Mexico, we are reminded that no place on earth has been subjected to such persistent oil spills as the Niger Delta in Nigeria. Adam Nossiter, Far from Gulf a Spill Scourge Five Decades Old, New York Times, June 16, 2010, at A1. In 2006 it was estimated that as many as 546 million gallons (13 million barrels) of oil had been spilled in this area over the previous five decades. This is an amount more than 50 times that released in the Exxon Valdez oil spill, though Royal Dutch Shell maintains that all but 2 percent of these releases are due to theft or sabotage. Some have estimated that the current Gulf spill is pouring out as much oil as the equivalent of an Exxon Valdez spill every four days. Nigerian officials have expressed interest in reassessing their regulations on oil drilling in response to the Gulf spill. Tom Burgis & William Wallis, Shell Faces Tougher Scrutiny of Nigerian Drilling, Financial Times, June 18, 2010, at 3. Gold mining practices in a remote northwestern region of Nigeria have caused such severe lead contamination that at least 163 people, most of them children, have died of lead poisoning. Betsy McCay, Officials Widen Nigeria Lead-Poisoning Tests, Wall St. J., June 17, 2010, at A15. The lead exposure reportedly was caused by wildcat miners digging up ore that contains high concentrations of lead.

South Africa has created 56 special World Cup courts to fast track prosecutions for crimes committed during the month-long event. Two men who allegedly robbed journalists at gunpoint were sentenced to 15 years in prions four days after the offense. Richard Lapper & Roger Blitz, Fast-track Justice Ensures Swift Penalties for Local Lawbreakers, Financial Times, June 17, 2010, at 2. Today my family and I were scheduled to fly to South Africa for the World Cup and a vacation in Kruger National Park. Due to my wife’s cancer surgery last Tuesday, we have had to cancel the trip. However, we are delighted to know that a 14-year old boy from Silver Spring, Maryland who is battling liver cancer will be flying to South Africa with his family in our place today thanks to the Make-A-Wish Foundation. My wife was released from intensive care last Saturday and we are hopeful that she will have recovered sufficiently to come home from the hospital next weekend. We are so grateful for the all messages of caring and support we have received, including those on her website at http://www.caringbridge.org/visit/barbarapercival

Monday, June 14, 2010

Bhopal Verdicts, India Green Tribunals, Senate Fails to Veto EPA GHG Controls & Oil Spill Estimates

On Monday June 7 a court in India convicted eight former senior executives of United Carbide India Limited (Union Carbide’s Indian subsidiary) of criminal charges of causing death by negligence for the December 1984 chemical release in Bhopal that killed thousands. The defendants, one of whom has died, are all citizens of India. They were sentenced to the maximum two-year sentence and fined 100,000 rupees ($2,130) each. Union Carbide India Limited also was convicted and fined 500,000 rupees ($10,650). Advocates for the victims criticized the charges, which usually are used in hit-and-run vehicle accidents, as too lax. Satinath Sarangi, a victims’ advocated said the verdict was akin to treating “the world’s worst industrial disaster” as “a traffic accident.” Lydia Polgren & Hari Kumar, 8 Former Executives Guilty in ’84 Bhopal Chemical Leak, N.Y. Times, June 8, 2010. The defendants initially had been charged with culpable homicide, which carries a maximum 10-year sentence, but the charges had been reduced by the Supreme Court of India.

One obvious question is why it took so long to complete these criminal prosecutions. While the Indian legal system is notoriously slow in handling criminal cases, having these verdicts handed down more than a quarter century after the December 1984 disaster seems an extreme case of justice delayed. When the Supreme Court of India in February 1989 directed a $470 million settlement between Union Carbide and the government of India, it quashed all other proceedings relating to the disaster. It was not until April 1992 that India’s Central Bureau of Investigation (CBI) persuaded the Supreme Court to permit the criminal prosecutions. In September 1993 the government of India unsuccessfully sought the extradition from the United States of Warren M. Anderson, the American chairman of Union Carbide at the time of the tragedy. He is now considered a fugitive from justice in India. The criminal prosecution of the Indian executives was stayed from April 1993 to August 1995 as defense lawyers sought to have the Supreme Court reduce the charges. The Supreme Court reduced the charges in September 1996 following another defense petition. After presenting 178 witnesses and introducing 3009 exhibits, the prosecution finished its initial case on December 20, 2005. Defense witnesses testified from May 8, 2005 to December 22, 2007. Disputes over the recording of testimony by eight defense witnesses then continued until January 2010, when closing arguments commenced. Because the convictions will be appealed, it still may still be years before the any of the defendants are jailed. One of the convicted defendants, Keshub Mahindra, is a prominent industrialist who is now chairman of the India’s top utility vehicle and tractor manufacturing company.

The Bhopal verdicts come a a particularly sensitive time because the Indian Parliament currently is debating legislation to limit the liability of foreign companies who invest in Indian nuclear powerplants. Last month the Parliament passed the National Green Tribunal legislation that will allow specialized environmental courts to be established in India. Indian Environment Minister Jairam Ramesh has announced that the first “Green Tribunal” will be established in Bhopal. The Ministry also is considering a proposal to establish a National Environment Protection Authority to help enforce India’s environmental laws (see http://moef.nic.in/downloads/home/NEPA-Discussion-Paper.pdf).

On Thursday the U.S. Senate by a vote of 53-47 defeated S.J. 26, an attempt to block EPA’s December 2009 “endangerment” finding for emissions of greenhouse gases (GHG) under the Clean Air Act. Six Democratic Senators (Bayh, Lincoln, Landrieu, Ben Nelson, Pryor, Rockefeller) joined all 41 Republicans in voting for the resolution to invoke the Congressional Review Act (CRA). The other 51 Democrats and two Independents voted against. The CRA, enacted in 1996 in the wake of the Republican takeover of Congress, creates a special fast-track procedure for an up-or-down vote on a joint resolution blocking agency regulations. Unlike the legislative veto that was declared unconstitutional by the U.S. Supreme Court in INS v. Chadha in 1983, the CRA requires that the disapproval resolution be passed by a majority in each house of Congress and signed by the President or enacted by two-thirds majorities of each House over his veto. On Tuesday senior officials of the Obama administration indicated that if the resolution passed both houses of Congress they were likely to recommend that President Obama veto it. Thus, it was fairly clear that there was no likelihood that the effort to block the EPA regulations would be successful. In fact in its 14-year history the CRA has been used only once to veto a regulation - OSHA’s ergonomics rule in March 2001 - and that occurred only because there had just been a change in administration and new President George W. Bush eagerly signed the disapproval resolution.

The CRA provides that if a regulation is vetoed the agency cannot adopt a rule that is “substantially the same” without first getting express authority from Congress to do so. Thus, had the “endangerment” finding been vetoed through the CRA, it effectively would have nullified the ability of EPA to regulate GHG emissions following the Supreme Court’s landmark Massachusetts v. EPA decision upholding EPA’s authority to regulate them under the Clean Air Act. While EPA’s “endangerment” finding is being challenged in court, the defeat of the disapproval resolution will have no legal impact on that litigation. The CRA provides that if Congress fails to disapprove a rule “no court or agency may infer any intent of the Congress from any action or inaction of the Congress with respect to such rule.” 5 U.S.C. §801(g).

As oil continues to spill into the Gulf of Mexico from the Deepwater Horizon blowout, estimates of the size of the spill continue to be debated. One confusing aspect of the numbers game is that sometimes the estimates are given in barrels of oil and other times in gallons (those who want to minimize the size of the disaster seem to favor the former). To convert the two it is useful to remember that there are 42 gallons in each barrel of oil. The oil industry notes that there are approximately 1,500 natural “seeps” that leak an estimated 15 million gallons of oil per year from the Gulf floor. However, this is less than 360,000 barrels per year and less than 1,000 barrels per day, a tiny amount compared to that released by the Deepwater Horizon blowout which has been leaking up to 50,000 barrels (2.1 million gallons) per day.

My wife Barbara and I would like to thank everyone for their tremendous outpouring of love and support for her battle against cancer. She will have surgery on June 15 followed by chemotherapy treatment. In order to facilitate keeping friends and family informed about the progress of her treatment we have set up a website at: http://www.caringbridge.org/visit/barbarapercival. We will be posting updates on the website following her surgery. Last Tuesday Barbara and I went to Nationals Park to watch the major league debut of Stephen Strasburg, the Washington Nationals highly-touted new pitcher. He actually lived up to all the hype, setting a new single-game record for strikeouts (14) by a Nationals pitcher. Since our seats are only six rows behind the visitors’ dugout, we had a particularly enjoyable view of the bewildered Pirate batters as they returned to the dugout after striking out.

Monday, June 7, 2010

NRDC, China Climate Change Conference & Shocking Personal News (by Bob Percival)

On Monday May 31 I spent a delightful day in Beijing with the staff of the Natural Resources Defense Council’s Beijing office. We hiked around Tao Ran Ting Park south of Beijing and rented paddle boats. After a wonderful lunch at a local restaurant, where the NRDC staff dutifully demanded reusable chopsticks, I returned to my hotel to check out and relocate to Renmin University’s hotel. There I met Wang Jing, a former student of mine, who helped finish the Chinese translation of the slides for my presentation at the International Forum on Legislation of Climate Change and Low Carbon Economy. On Monday night Alex Wang, director of NRDC’s Beijing Office took me to the Bia Jia Da Yuan Restaurant for a farewell dinner for one of the NRDC staffers who is moving back to New York. I am so grateful to Alex and the rest of the NRDC staff for their terrific hospitality while I was in Beijing.

On Tuesday morning I gave one of the initial presentations at the International Forum on Legislation of Climate Change and Low Carbon Economy at Renmin University. The conference featured a who’s who of Chinese environmental law scholars, as well as government officials, students, and some businessmen. My presentation focused on what the U.S. is doing to respond to global warming and climate change. I was very impressed with how the tone in China on climate change issues has changed dramatically in the last year. A year ago when I did my lecture tour of China for the State Department I frequently encountered skepticism about whether climate change is real and strong opposition to China taking measures to control the country’s greenhouse gas emissions. While my sample size may be too narrow to be an accurate index of current thinking in China since the conference featured so many environmental law professors, now there was broad acceptance not only of the reality of climate change, but also of the need for legislation in China to combat it.

On Wednesday I was asked to give the closing summary of the conference and then I headed to downtown Beijing. As my taxi passed Tiananmen Square, just two days before the 21st anniversary of the Tiananmen Massacre, I noticed that the Chinese government had erected giant TV screens on the site that were showing beautiful movies of China. On Friday June 4, the anniversary of the massacre, 150,000 Chinese held a candlelight vigil in Hong Kong in remembrance. Photos of my time in Beijing, including the NRDC Tort Law Conference, Tao Ran Ting Park, and the Climate Change Forum, can be viewed online at: http://gallery.me.com/rperci/100692.

When I arrived at the Hyatt in downtown Beijing on Tuesday noon, I was in an ebulient mood and I remember thinking that my life was just about perfect. I made a reservation to have a late lunch at one of Beijing’s hottest new restaurants and was looking forward to a final day in China and dinner with an old friend. It’s often said that one’s life can be totally changed in the blink of an eye, but this was the first time I ever experienced that. I received the shocking news that my wife Barbara had just been diagnosed with a rare and deadly form of cancer - peritoneal cancer. I immediately headed to the Beijing Airport to return to the U.S. a day early. I was so distraught that when I got to the airport I discovered that I had forgotten to remove my valuables from the hotel safe. Fortunately a friend in Beijing subsequently was able to retrieve them for me.

Barbara and I spent Thursday and Friday trying to adjust to the reality of her situation before telling anyone else the news. On Saturday we informed our children, something we had been dreading, but their reaction was so awesome that it really picked us up and made me feel better for the first time since I had heard the news. We then informed our extended families. Barbara will have surgery on June 15 and then start chemotherapy. We will not know more about the prognosis until after the surgery which will determine exactly where the cancer is and how far it has spread. Our family had been planning to leave for the World Cup in South Africa on June 21 to watch matches with the teams from each of our birth countries -- the U.S., Chile and Paraguay -- and then spend four days in Kruger National Park. We are now donating our trip to the Make-A-Wish Foundation. I will be unable to teach the summer U.S.-Chine Environmental Law course at Vermont Law School with the subsequent field trip to China. Instead I will be spending the summer with my wife as she recuperates from the surgery and undergoes the chemotherapy. We are really grateful for the support of our family and friends and I hope everyone whose emails I have not been able to reply to in the last week now understands why.

Tuesday, June 1, 2010

Shanghai World Expo, China Tort Law Conference & Comer Dismissal

I arrived in Shanghai on Monday May 24. On Tuesday I attended the Shanghai World Expo, a modern version of the world’s fairs I attended as a child in Seattle in 1962 (for which the Space Needle was constructed) and New York in 1964 (which was held in Flushing Meadows and left the world the Unisphere). The site of the Shanghai Expo is enormous extending over both banks of the Huangpu River south of the Bund and the Pudong areas of Shanghai. Special “Expo taxis” that feature air conditioning and working seatbelts are the only ones allowed to take passengers to the Expo grounds.

The Expo’s theme “Better City, Better Life” suggests that it is to highlight a more optimistic future for the world. But if the future is like the Expo was the day I was there - extremely crowded (more than 300,000 people) and very hot - then the future is not so appealing. The lines for the major country pavilions were enormous. I got into what I thought was a short line for the German Pavilion and then saw that I was standing next to a sign that said “Three Hour Wait from Here” so I abandoned the effort to get in. I did manage to visit many of the smaller country pavilions and had a great time at the Chile Pavilion where they were serving pisco sours, Chilean wines and empanadas. Twice groups of Chinese primary school girls approached me and asked in perfect English if I would pose for a photo with them. The Cuban Pavilion was serving mojitos and letting school kids write graffiti all over the wall that served as a projection screen. A photo gallery of my visit to the Expo and time in Shanghai is available at: http://gallery.me.com/rperci/100684.

On Wednesday night I had dinner with my friends Dan Guttman and Professor Huiyu Zhao from Shanghai Jiao Tong University who is currently serving as the deputy chief prosecutor of the People’s Procurate in Shanghai. We had a great discussion about the state of the rule of law in China. The President of the Supreme People’s Court recently urged local courts to resist political influence in deciding cases, though many observers are skeptical concerning whether this will make much difference. The Supreme People’s Court, the Procurate and the Ministry of Public Security just issued two rules to ban the use of confessions extracted by torture in capital cases.

On Thursday I flew to Beijing to participate in two conferences. The first conference, sponsored by Renmin University Law School and the Beijing office of the Natural Resources Defense Council (NRDC), focused on the new Chinese tort law. Some provisions of the law are designed to make it easier for plaintiffs to recover compensation for harm caused by pollution. The conference featured some prominent Chinese civil law scholars who indicated that environmental torts are now moving into the mainstream. On Saturday May 29 I spoke at the conference on the history of environmental torts in the United States and new developments around the world. On Sunday May 30 I spoke on the closing day of the conference on the topic of public interest litigation addressing environmental problems. The conference brought together a highly knowledgeable group of legal scholars, lawyers, judges, and environmentalists and the discussion was quite lively at times. There seemed to be some disagreement among the group on how to interpret some of the provisions of the new law, particularly with respect to joint and several liability and burden-shifting to defendants to disprove causation. While some question whether the law is significantly different from previous laws on the books, its drafters seem to have wanted to direct more of the law’s attention to pollution problems.

In my talk at the torts conference I mentioned U.S. climate change litigation, including the Comer case where Hurricane Katrina victims seek to recover damages from oil companies for contributing to climate change. I had just received an email from Professor Jim May of Widener, who authored a law professors’ amicus brief that I had joined in the case, announcing its bizarre outcome. As noted in the May 2, 2010 entry on this blog, after granting a rehearing en banc in the case on March 1, the Fifth Circuit announced on April 30 that there no longer was a quorum of the 16 judges on the full court available to hear the case because eight judges had recused themselves. However, last Friday five of the remaining eight judges announced that the result of the dismissal of the en banc would be reinstatement of the district court’s decision dismissing the lawsuit rather than reinstatement of the 3-judge appellate panel’s decision reversing the dismissal. The other three judges dissented arguing that once the en banc court is deprived of a quorum it has no power to conduct business. However, the legal effect of taking a case en banc is to vacate the panel’s decision. Try explaining that to a Chinese audience - I decided not to try.