On Tuesday August 24 Indian environmental minister Jairam Ramesh blocked a major bauxite mining project proposed by the London-based mining conglomerate Vedanta Resources PLC. The project was blocked on thr grounds that Vedanta had failed to comply with a law enacted in 2008 that requires projects located on tribal forest lands to obtain the permission of the tribes living in the area. Ramesh’s decision was taken in response to a report of a committee commissioned by the environment ministry that accused Vdedanta of violating India’s forestry and environmental laws. The decision is viewed as an important precedent that may affect the plans for other projects in the state of Orissa including a steel plant proposed by South Korea’s Posco Company an an auto production facility proposed by Tata Motors. Geeta Anand & Prasenjit Bhattacharya, India Bars Mine in Big Ruling, Wall Street Journal, Aug. 25, 2010, at B3.
In a surprise decision on Thursday August 26 Russian President Dimitri Medvedev suspended the clearing of parts of a 2,500-acre forest area, the Khimki forest near Moscow, that was part of a massive construction project to build a large toll road. The forest is the subject of one of the eight case studies of path-breaking global environmental law cases featured in Professor Oliver Houck’s book Reclaiming Eden (see Nov. 24, 2009 blog post). Yet last year Russian Prime Minister Valdimir Putin issued a decree to remove the forest’s status as a publicly protected green space. The Russian Supreme Court rejected a citizens’ petition to overturn Putin’s decree last March. President Medvedev’s decision does not kill the project, but instead calls for more “public and expert discussions” of its pros and cons prior to construction of the road. Opponents of the project held a protest rock concert in Moscow on Sunday April 22 to publicize opposition to the project. RIchard Boudreaux, Wall Street Journal, August 27, 2010, at A14. The massive, recent fires in Russia seem to be reinforcing a growing realization that climate change poses a severe threat to the country, something that was not appreciated by the country’s leadership just a few years ago. Anthony Giddens, Russia Cannot Afford Climate Inaction, Financial Times, Aug. 27, 2010, at 9.
This week China experienced the world’s most massive traffic jam as trucks carrying coal from inland mines to coastal areas helped cause a 60-mile backup on a road from Inner Mongolia to the port of Qinhuangdao. The traffic jam, which took several days for vehicles to pass through, is a reminder that 70 percent of China’s energy demand is still supplied by coal. China’s railroad lines already are overloaded with coal shipments, leaving more expensive transport by truck as the only available option for some coal shipments.
Last week the U.S. Department of Justice shocked the environmental community by asking the U.S. Supreme Court to vacate a decision by the U.S. Court of Appeals for the Second Circuit that permits a climate change lawsuit brought by states against major utilities with coal-fired power plants to go forward. The September 2009 decision in the case of Connecticut v. American Electric Power reversed a district court decision holding that the lawsuit poses a nonjusticiable political question. (See the September 27, 2009 blog post). While the Justice Department, representing the Tennessee Valley Authority, does not take the position that the lawsuit poses a political question, it maintains that EPA’s efforts to regulate greenhouse gas (GHG) emissions justify blocking the lawsuit. This claim seems a bit of a stretch since EPA has not expressed a specific intent to preempt nuisance law and its nascent regulations on GHG emissions are a far cry from the comprehensive limits on water pollution mandated by law in the Clean Water Act that the Supreme Court said in 1981 preempted the federal common law of nuisance for interstate water pollution. Moreover, this still would not preempt the application of state nuisance law and, in any event, opponents of all GHG emissions controls cannot have it both ways -- if EPA’s GHG regulations are invalid, as they claim, they cannot preempt common law actions. I have written a detailed examination of the history of the preemption of the federal common law of interstate nuisance for water pollution. The Clean Water Act and the Demise of the Federal Common Law of Interstate Nuisance, 55 Ala. L. Rev. 717 (2004).
Last Monday I returned from Miami where I was helping my son move back to college. On Tuesday I greeted Huang Jing, a top Ph.D. student of China’s top public interest environmental law professor Wang Canfa of the China University of Political Science and Law (CUPL). Huang Jing, who served as my student assistant when I taught at CUPL in 2008, has just arrived in Maryland from China and will be a visiting scholar at Maryland this year. While Maryland’s classes all start tomorrow, last Thursday I taught an introductory Constitutional Law class for a really terrific group of new LL.M. students from China, Zambia, Venezuela, and Russia.
Sunday, August 29, 2010
Sunday, August 22, 2010
Britain & India to Raise Oil & Nuclear Liability Limits, New Order in Argentina's Mendoza Case, CEQ Report on Offshore NEPA Reviews (by Bob Percival)
Representatives of Britain’s oil industry voted last week to more than double their pooled assumption of liability for oil spills offshore of the United Kingdom and Northern Europe. While Britain has no liability cap on damages from oil spills, under the Offshore Pollution Liability Agreement (OPOL), which became effective in 1975, oil companies have voluntarily agreed each to contribute up to $120 million per incident to pay damage claims not satisfied by the company responsible for the spill. The companies voted to raise each of their obligations to $250 million per incident.
A parliamentary committee in India has agreed to triple the proposed liability limit for suppliers of nuclear power equipment to 15 billion rupees ($321.8 million). The proposal, which is likely to be approved by both house of the Indian Parliament, is expected to clear the way for Indian approval of a 2008 nuclear-power agreement with the United States. The Civil Liability for Nuclear Damage legislation was blocked last month in part by protests that the liability limits were set too low. Abhrajit Gangopadhyay, India Acts to Get U.S. Nuclear Pact, Wall Street Journal, Aug. 19, 2010. The proposal was quickly approved by the Indian cabinet. The legislation contemplates that nuclear power plants will be run by the Indian federal government.
Last week I received a copy of a new order issued on August 10th by the Supreme Court of Argentina in the long-standing Mendoza litigation to clean up of the polluted Matanza-Riachuelo river basin near Buenos Aires. In July 2008 the Court ordered all levels of government and polluting companies to participate in a comprehensive, long-term cleanup operation. In response to the Court’s order, the Argentine Congress created and funded a river Basin Authority to conduct the cleanup under the supervision of the Federal Court of Quilmes. While some polluting facilities have been shut down, the Supreme Court’s latest order reflects its concern that there has been considerable slippage in the implementation of the cleanup plan. The order demands an explanation of the reasons why there has been noncompliance with mandates to reduce industrial pollution, remediate contaminated landfills, expand the potable water supply and improve sanitation, and it requires implementation of a publicly accessible digital information system to enable better monitoring of cleanup operations.
On Monday August 16 the Council on Environmental Quality released a 41-page report on the Minerals Management Service’s compliance with the National Environmental Policy Act with respect to oil and gas development on the Outer Continental Shelf. A copy of the report is available online at: http://www.doi.gov/news/pressreleases/loader.cfm?csModule=security/getfile&PageID=42036. The report was commissioned by the White House on May 14 in response to the BP oil spill in the Gulf of Mexico. It finds that the process of tiered environmental reviews under NEPA was “not transparent,” raising concerns about their adequacy. The report makes several recommendations to “ensure robust environmental reviews for future oil and gas exploration and development activities.” It suggests that the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM) should:
“Perform careful and comprehensive NEPA review of individual deepwater exploration activities, including site-specific information where appropriate.
Track and take into account all mitigation commitments made in NEPA and decision documents that are used to determine the significance of environmental impacts, from the initial Programmatic EIS through site-specific NEPA analyses and decisions.
Ensure that NEPA analyses fully inform and align with substantive decisions at all relevant decision points; that subsequent analyses accurately reflect and carry forward relevant underlying data; and that those analyses will be fully available to the public.
Ensure that NEPA documents provide decisionmakers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low probability catastrophic spills for oil and gas activities on the Outer Continental Shelf.
Review the use of categorical exclusions for OCS oil and gas exploration and development in light of the increasing levels of complexity and risk – and the consequent potential environmental impacts – associated with deepwater drilling. Determine whether to revise these categorical exclusions.
Continue to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted Exploration Plans.
Evaluate supplementing existing NEPA practices, procedures, and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP Oil Spill.”
Embracing the report, the Department of Interior (DOI) announced last week that it will limit categorical exclusions to “activities involving limited environmental risks” and that it will prepare a supplemental environmental impact statement for oil drilling in the Gulf of Mexico. The American Petroleum Institute (API) criticized DOI’s effort to expand environmental reviews, arguing that it will delay permitting of offshore drilling without providing additional environmental benefits. On August 17 API disclosed plans to hold “citizen rallies” to resist new laws and regulations on oil exploration and development. Stephanie Kirchgaessner and Sylvia Pfeifer, Oil Groups Ready to Fight Tougher Rules, Aug. 18, 2010. The “Rallies for Jobs” will be held in Beaumont, Corpus Christi and Houston, Texas; Farmington, New Mexico; Grand Junction, Colorado; Canton, Ohio; and Peoria, Illinois.
Companies whose securities are traded on Wall Street are pushing back against provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. These include “conflict minerals” provisions that require disclosure of the sources of minerals these companies use, Jean Eaglesham and Jeremy Lemer, Business Groups Lobby Against “Conflict Minerals” Disclosure Rule, Financial Times, Aug. 18, 2010, at 1, and a requirement that oil companies disclose payments they make to foreign government for oil concessions. These provisions were discussed in my May 23, 2010 and July 18, 2010 blog posts. While expressing sympathy for the goal of cutting off the supply of “conflict minerals,” companies are arguing that the SEC should not require detailed tracing of their supply chains. Oil companies are arguing that disclosure of payments to foreign governments will put them at a competitive disadvantage to other companies who are not subject to the disclosure requirement, such as predominately state-owned oil companies like CNOC.
A parliamentary committee in India has agreed to triple the proposed liability limit for suppliers of nuclear power equipment to 15 billion rupees ($321.8 million). The proposal, which is likely to be approved by both house of the Indian Parliament, is expected to clear the way for Indian approval of a 2008 nuclear-power agreement with the United States. The Civil Liability for Nuclear Damage legislation was blocked last month in part by protests that the liability limits were set too low. Abhrajit Gangopadhyay, India Acts to Get U.S. Nuclear Pact, Wall Street Journal, Aug. 19, 2010. The proposal was quickly approved by the Indian cabinet. The legislation contemplates that nuclear power plants will be run by the Indian federal government.
Last week I received a copy of a new order issued on August 10th by the Supreme Court of Argentina in the long-standing Mendoza litigation to clean up of the polluted Matanza-Riachuelo river basin near Buenos Aires. In July 2008 the Court ordered all levels of government and polluting companies to participate in a comprehensive, long-term cleanup operation. In response to the Court’s order, the Argentine Congress created and funded a river Basin Authority to conduct the cleanup under the supervision of the Federal Court of Quilmes. While some polluting facilities have been shut down, the Supreme Court’s latest order reflects its concern that there has been considerable slippage in the implementation of the cleanup plan. The order demands an explanation of the reasons why there has been noncompliance with mandates to reduce industrial pollution, remediate contaminated landfills, expand the potable water supply and improve sanitation, and it requires implementation of a publicly accessible digital information system to enable better monitoring of cleanup operations.
On Monday August 16 the Council on Environmental Quality released a 41-page report on the Minerals Management Service’s compliance with the National Environmental Policy Act with respect to oil and gas development on the Outer Continental Shelf. A copy of the report is available online at: http://www.doi.gov/news/pressreleases/loader.cfm?csModule=security/getfile&PageID=42036. The report was commissioned by the White House on May 14 in response to the BP oil spill in the Gulf of Mexico. It finds that the process of tiered environmental reviews under NEPA was “not transparent,” raising concerns about their adequacy. The report makes several recommendations to “ensure robust environmental reviews for future oil and gas exploration and development activities.” It suggests that the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM) should:
“Perform careful and comprehensive NEPA review of individual deepwater exploration activities, including site-specific information where appropriate.
Track and take into account all mitigation commitments made in NEPA and decision documents that are used to determine the significance of environmental impacts, from the initial Programmatic EIS through site-specific NEPA analyses and decisions.
Ensure that NEPA analyses fully inform and align with substantive decisions at all relevant decision points; that subsequent analyses accurately reflect and carry forward relevant underlying data; and that those analyses will be fully available to the public.
Ensure that NEPA documents provide decisionmakers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low probability catastrophic spills for oil and gas activities on the Outer Continental Shelf.
Review the use of categorical exclusions for OCS oil and gas exploration and development in light of the increasing levels of complexity and risk – and the consequent potential environmental impacts – associated with deepwater drilling. Determine whether to revise these categorical exclusions.
Continue to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted Exploration Plans.
Evaluate supplementing existing NEPA practices, procedures, and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP Oil Spill.”
Embracing the report, the Department of Interior (DOI) announced last week that it will limit categorical exclusions to “activities involving limited environmental risks” and that it will prepare a supplemental environmental impact statement for oil drilling in the Gulf of Mexico. The American Petroleum Institute (API) criticized DOI’s effort to expand environmental reviews, arguing that it will delay permitting of offshore drilling without providing additional environmental benefits. On August 17 API disclosed plans to hold “citizen rallies” to resist new laws and regulations on oil exploration and development. Stephanie Kirchgaessner and Sylvia Pfeifer, Oil Groups Ready to Fight Tougher Rules, Aug. 18, 2010. The “Rallies for Jobs” will be held in Beaumont, Corpus Christi and Houston, Texas; Farmington, New Mexico; Grand Junction, Colorado; Canton, Ohio; and Peoria, Illinois.
Companies whose securities are traded on Wall Street are pushing back against provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. These include “conflict minerals” provisions that require disclosure of the sources of minerals these companies use, Jean Eaglesham and Jeremy Lemer, Business Groups Lobby Against “Conflict Minerals” Disclosure Rule, Financial Times, Aug. 18, 2010, at 1, and a requirement that oil companies disclose payments they make to foreign government for oil concessions. These provisions were discussed in my May 23, 2010 and July 18, 2010 blog posts. While expressing sympathy for the goal of cutting off the supply of “conflict minerals,” companies are arguing that the SEC should not require detailed tracing of their supply chains. Oil companies are arguing that disclosure of payments to foreign governments will put them at a competitive disadvantage to other companies who are not subject to the disclosure requirement, such as predominately state-owned oil companies like CNOC.
Sunday, August 15, 2010
UN Sustainable Development Commission, BP Lawsuits to New Orleans, Mercury Regs, SPEECH Act, Palm Oil Audit (by Bob Percival)
As horrendous floods ravage Pakistan, massive wildfires burn in Russia, and landslides devastate villages in China, some scientists are suggesting that global warming is contributing to a summer of unusually violent weather phenomena. Warming seawater appears to be responsible for a 100-square mile sheet of ice four times the size of Manhattan breaking off from the Petermann ice shelf on the northwestern tip of Greenland.
After little progress was made toward narrowing differences over a new global greenhouse gas (GHG) emissions control regime during a week of talks in Bonn, UN Secretary General Ban Ki-moon announced the formation of a High-Level Panel on Global Sustainability. The 21-member panel, announced on August 9, includes former prime ministers of Norway (Gro Harlem Brundtland), South Korea, Japan, Mozambique and Australia, current high-level officials and advisers from Barbados, China, Indian, Mexico, Nigeria, Russia, Spain, Switzerland, Turkey, and the United Arab Emirates. The U.S. is represented on the panel by UN Ambassador Susan Rice and the EU by Connie Hedegaard, the EU’s Commissioner for Climate Change. The panel, which is co-chaired by the presidents of Finland and South Africa, is charged with reporting to the UN Conference on Sustainable Development in Brazil in 2012 on how to “lift people out of poverty while tackling climate change and ensuring that economic development is environmentally friendly.”
On Tuesday August 10 the Judicial Panel on Multi-District Litigation ruled that hundreds of federal lawsuits seeking damages from BP over the Gulf oil spill will be consolidated for trial before Judge Carl J. Barbier in federal district court in New Orleans. This decision is widely viewed as a defeat for BP because it had requested that the cases be tried in Houston. The panel did rule that shareholder litigation against BP would be consolidated for trial before Judge Keith P. Ellison in Houston. On Friday the state of Alabama filed lawsuits against BP and its partners in the drilling project that caused the Gulf oil spill seeking unspecified damages. The lawsuits were filed in federal district court in Montgomery, Alabama. A BP spokesperson seemed surprised by the new litigation, noting that the company had already voluntarily paid $347 million in claims from among the 148,000 claims it has received, without denying a single claim. BP has yet to act on 40,000 of these claims. On August 10 BP deposited the first $3 billion into the $20 billion compensation fund it had previously announced. On August 11 BP agreed to set aside its revenue stream from future U.S. oil production, a quarter of the company’s annual output, to guarantee that the $20 billion fund would be fully funded.
On Monday August 9 the U.S. Environmental Protection Agency (EPA) announced its first regulations under the Clean Air Act limiting mercury emissions from cement plants. Mercury emissions have become a global problem that is the subject of international negotiations to establish a global treaty (see February 22, 2009 post). Portland cement plants are the third largest source of mercury emissions in the U.S. A copy of EPA’s regulations is available online at: http://www.epa.gov/ttn/oarpg/t1/fr_notices/portland_cement_fr_080910.pdf
In another indication of the complex architecture of developing global law, last week President Obama signed into law the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act. The Act, which was inspired by New York’s 2008 Libel Terrorism Protection Act, makes libel judgments against U.S. writers obtained in foreign countries unenforceable in U.S. courts if they involve speech protected by the First Amendment to the U.S. Constitution. The SPEECH Act is designed to deter “libel tourists” from seeking to use British courts where there are far more limited free speech protections to obtain judgements against U.S. writers for acts that would not be deemed libelous under U.S. law. The law is expected to increase pressure on Britain to revise its libel laws.
On Tuesday August 10 the Sinar Mas group, Indonesia’s largest palm oil company, claimed that the results of an independent audit showed that it did not destroy peatland and forests of high ecological value. The company said that it hoped that the audit, which it commissioned in April to respond to charges by Greenpeace, would persuade companies like Nestle and Unilever to resume using them as a supplier. The audit was performed by Control Union Certification and the BSI Group, which are recognized as independent auditors by the Roundtable on Sustainable Palm Oil (RSPO). A copy of the audit is available here: http://www.smart-tbk.com/pdfs/Announcements/IVEX%20Report%20100810.pdf. Greenpeace states that the audit results actually confirm most of its charges, including that Sinar Mas commenced land clearing operations before receiving necessary permits and without performing conservation assessments. Greenpeace urged Cargill to join Nestle and Unilever in suspending Sinar Mas as a palm oil supplier. For Greenpeace’s take on the audit see: http://www.greenpeace.org/international/en/news/Blogs/climate/sinar-mas-remains-a-notorious-forest-destroye/blog/26141.
While there is unprecedented global interest in the 2010-2011 Stetson International Environmental Moot Court Competition, to date only a few law schools from the western U.S. have entered teams in the Pacific Rounds of the North American regionals. The two top teams in the Pacific Rounds will advance to the international finals, which will be held at the University of Maryland from March 17-20, 2010. The problem involves a hypothetical oil spill that has international repercussions. For information on how to enter a team see http://www.law.stetson.edu/tmpl/academics/bio/internal-1-sub.aspx?id=4642.
After little progress was made toward narrowing differences over a new global greenhouse gas (GHG) emissions control regime during a week of talks in Bonn, UN Secretary General Ban Ki-moon announced the formation of a High-Level Panel on Global Sustainability. The 21-member panel, announced on August 9, includes former prime ministers of Norway (Gro Harlem Brundtland), South Korea, Japan, Mozambique and Australia, current high-level officials and advisers from Barbados, China, Indian, Mexico, Nigeria, Russia, Spain, Switzerland, Turkey, and the United Arab Emirates. The U.S. is represented on the panel by UN Ambassador Susan Rice and the EU by Connie Hedegaard, the EU’s Commissioner for Climate Change. The panel, which is co-chaired by the presidents of Finland and South Africa, is charged with reporting to the UN Conference on Sustainable Development in Brazil in 2012 on how to “lift people out of poverty while tackling climate change and ensuring that economic development is environmentally friendly.”
On Tuesday August 10 the Judicial Panel on Multi-District Litigation ruled that hundreds of federal lawsuits seeking damages from BP over the Gulf oil spill will be consolidated for trial before Judge Carl J. Barbier in federal district court in New Orleans. This decision is widely viewed as a defeat for BP because it had requested that the cases be tried in Houston. The panel did rule that shareholder litigation against BP would be consolidated for trial before Judge Keith P. Ellison in Houston. On Friday the state of Alabama filed lawsuits against BP and its partners in the drilling project that caused the Gulf oil spill seeking unspecified damages. The lawsuits were filed in federal district court in Montgomery, Alabama. A BP spokesperson seemed surprised by the new litigation, noting that the company had already voluntarily paid $347 million in claims from among the 148,000 claims it has received, without denying a single claim. BP has yet to act on 40,000 of these claims. On August 10 BP deposited the first $3 billion into the $20 billion compensation fund it had previously announced. On August 11 BP agreed to set aside its revenue stream from future U.S. oil production, a quarter of the company’s annual output, to guarantee that the $20 billion fund would be fully funded.
On Monday August 9 the U.S. Environmental Protection Agency (EPA) announced its first regulations under the Clean Air Act limiting mercury emissions from cement plants. Mercury emissions have become a global problem that is the subject of international negotiations to establish a global treaty (see February 22, 2009 post). Portland cement plants are the third largest source of mercury emissions in the U.S. A copy of EPA’s regulations is available online at: http://www.epa.gov/ttn/oarpg/t1/fr_notices/portland_cement_fr_080910.pdf
In another indication of the complex architecture of developing global law, last week President Obama signed into law the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act. The Act, which was inspired by New York’s 2008 Libel Terrorism Protection Act, makes libel judgments against U.S. writers obtained in foreign countries unenforceable in U.S. courts if they involve speech protected by the First Amendment to the U.S. Constitution. The SPEECH Act is designed to deter “libel tourists” from seeking to use British courts where there are far more limited free speech protections to obtain judgements against U.S. writers for acts that would not be deemed libelous under U.S. law. The law is expected to increase pressure on Britain to revise its libel laws.
On Tuesday August 10 the Sinar Mas group, Indonesia’s largest palm oil company, claimed that the results of an independent audit showed that it did not destroy peatland and forests of high ecological value. The company said that it hoped that the audit, which it commissioned in April to respond to charges by Greenpeace, would persuade companies like Nestle and Unilever to resume using them as a supplier. The audit was performed by Control Union Certification and the BSI Group, which are recognized as independent auditors by the Roundtable on Sustainable Palm Oil (RSPO). A copy of the audit is available here: http://www.smart-tbk.com/pdfs/Announcements/IVEX%20Report%20100810.pdf. Greenpeace states that the audit results actually confirm most of its charges, including that Sinar Mas commenced land clearing operations before receiving necessary permits and without performing conservation assessments. Greenpeace urged Cargill to join Nestle and Unilever in suspending Sinar Mas as a palm oil supplier. For Greenpeace’s take on the audit see: http://www.greenpeace.org/international/en/news/Blogs/climate/sinar-mas-remains-a-notorious-forest-destroye/blog/26141.
While there is unprecedented global interest in the 2010-2011 Stetson International Environmental Moot Court Competition, to date only a few law schools from the western U.S. have entered teams in the Pacific Rounds of the North American regionals. The two top teams in the Pacific Rounds will advance to the international finals, which will be held at the University of Maryland from March 17-20, 2010. The problem involves a hypothetical oil spill that has international repercussions. For information on how to enter a team see http://www.law.stetson.edu/tmpl/academics/bio/internal-1-sub.aspx?id=4642.
Monday, August 9, 2010
Ecuador/UNDP Trust Halts Amazon Oil Drilling, Impact of BP Spill of Global Opinion, Russian Wildfires & India Halts Posco Project
On Wednesday August 4, Ecuadoran President Rafael Correa agreed with the UN Development Program (UNDP) to prohibit oil drilling for at least ten years in three Amazon oil fields located under Ecuador’s Yasuni National Park. In return the UNDP agreed to establish a $3.6 billion trust fund for Ecuador, the amount the country would have earned if it developed the oil reserves. Ecuador pledged to use interest earned on the trust fund will be invested to protect the national park and 43 other nature reserves in the country. The trust will be funded by contributions from other countries, NGOs, and companies. Ecuador also is seeking to change the terms of its oil exploration agreements with foreign oil companies from production-sharing to fixed price service contracts. Spencer Swartz & Mercedes Alvaro, Ecuador Shifts Terms with Foreign Oil Firms, Wall St. J., Aug. 9, 2010, at A13.
A Harris poll commissioned by the FInancial Times shows strong support in several countries for increased regulation of oil companies following the BP oil spill. More than 90 percent of those aware of the spill in France, Spain, and Italy support increased regulation, compared to more than 75 percent in the United States. Not surprisingly the spill caused the greatest damage to BP’s reputation in the U.S. with nearly two-thirds of U.S. respondents reporting that they think less of BP due to the spill, while only one-third of those in Britain did so. However, 73% of Britons agreed that regulation of oil companies should be strengthened, as did more than 75% of Americans. The poll indicated that the spill affected the public’s attitude toward the oil industry in general. “Almost a third of Americans said they thought less of all energy companies following the accident, four in ten said they were now more worried about climate change and two-thirds said the disaster had increased their fears about their country’s dependence on oil.” James Boxell & Sylvia Pfeifer, BP Oil Spill Needs to Demand for More Regulation, Financial Times, August 9, 2010, at 2.
During the last several weeks more than 800 wildfires have swept across Russia in the midst of a record heat wave, causing such intense smoke pollution that air travel has been halted at times in Moscow and other cities. Pollution levels have greatly exceeded public health standards and deaths from respiratory illnesses reportedly have soared. Russian authorities have been criticized for inept responses to the fires and many are blaming the Kremlin for relaxing the national forest code in legislation championed by Vladimir Putin in 2006. The legislation disbanded a centralized system of 70,000 forest wardens, devolving responsibility to regional governments and logging firms who lease forest land.
On Friday August 6 the Indian Ministry of Environment and Forests ordered the state government of Orissa to stop purchasing land for a new steel plant to be built by South Korea’s Pohang Iron and Steel Company (Posco). The Ministry claims that the state government falsely claimed that no forest-dependent tribes were living in the area where the $12 billion plant was to be built and that it had violated India’s Forest Rights Act. Prasenjit Bhattacharya, India Halts Land Purchases for Korean Plant, Wall St. J., August 9, 2010.
A Harris poll commissioned by the FInancial Times shows strong support in several countries for increased regulation of oil companies following the BP oil spill. More than 90 percent of those aware of the spill in France, Spain, and Italy support increased regulation, compared to more than 75 percent in the United States. Not surprisingly the spill caused the greatest damage to BP’s reputation in the U.S. with nearly two-thirds of U.S. respondents reporting that they think less of BP due to the spill, while only one-third of those in Britain did so. However, 73% of Britons agreed that regulation of oil companies should be strengthened, as did more than 75% of Americans. The poll indicated that the spill affected the public’s attitude toward the oil industry in general. “Almost a third of Americans said they thought less of all energy companies following the accident, four in ten said they were now more worried about climate change and two-thirds said the disaster had increased their fears about their country’s dependence on oil.” James Boxell & Sylvia Pfeifer, BP Oil Spill Needs to Demand for More Regulation, Financial Times, August 9, 2010, at 2.
During the last several weeks more than 800 wildfires have swept across Russia in the midst of a record heat wave, causing such intense smoke pollution that air travel has been halted at times in Moscow and other cities. Pollution levels have greatly exceeded public health standards and deaths from respiratory illnesses reportedly have soared. Russian authorities have been criticized for inept responses to the fires and many are blaming the Kremlin for relaxing the national forest code in legislation championed by Vladimir Putin in 2006. The legislation disbanded a centralized system of 70,000 forest wardens, devolving responsibility to regional governments and logging firms who lease forest land.
On Friday August 6 the Indian Ministry of Environment and Forests ordered the state government of Orissa to stop purchasing land for a new steel plant to be built by South Korea’s Pohang Iron and Steel Company (Posco). The Ministry claims that the state government falsely claimed that no forest-dependent tribes were living in the area where the $12 billion plant was to be built and that it had violated India’s Forest Rights Act. Prasenjit Bhattacharya, India Halts Land Purchases for Korean Plant, Wall St. J., August 9, 2010.
Sunday, August 1, 2010
Int'l Congress of Comparative Law, Oil Drilling Legislation in U.S. & Nigeria, Climate Studies, NC v. TVA Decision, Climate Studies & BP Litigation
This week I attended the 43rd International Congress of Comparative Law organized jointly by the International Academy of Comparative Law and the American Society of Comparative Law. The week-long Congress, which is held every four years, took place in Washington, D.C., hosted by the law schools of American University, George Washington University and Georgetown University. Approximately 500 people from 64 countries participated in the conference, including nearly 220 legal scholars from Europe and more than 170 from North America. The conference was terrific. Most of the sessions were organized around reports summarizing legal developments pertaining to a particular subject in different countries. A reporter - usually the author of a general report synthesizing the national reports -- would begin by summarizing the developments, followed by discussion from the authors of the national reports and members of the audience. Copies of these reports, including a general report and 19 national reports on climate change law, are available online at: http://www.wcl.american.edu/events/2010congress/reports/index.cfm
I learned a lot at the conference, particularly with respect to how globalization is affecting many other areas of law beyond environmental law. The discussions provided strong evidence concerning the trends that Tseming Yang and I have referred to as the development of “global law” with the erosion of traditional distinctions between private and public law and between domestic and international law. I found especially interesting sessions on catastrophic damages, class actions, how to teach comparative law, transparency in global administrative law, the role of constitutional courts, human rights, and the complexity of transnational sources of legal authority. Justice Ruth Bader Ginsburg gave a luncheon address on Thursday. She recounted the long history of the U.S. Supreme Court considering the law of nations and expressed surprise at some of the questions concerning the relevance of foreign law asked of Elena Kagan during her recent confirmation hearings. Chinese law expert Jerry Cohen from NYU addressed the closing banquet, which was held at the Organization of American States (OAS) building. He urged the Congress to consider holding its 2018 meeting in Beijing (the 2014 meeting will be in Vienna) in order to more fully engage legal scholars in China. I counted only three law professors from mainland China in the registration list, along with eight professors from Taiwan and seven from Macau. Photos from the conference and the closing banquet at the OAS are online at: http://gallery.me.com/rperci/100700.
On Friday July 30 the U.S. House of Representatives by a vote of 209 to 193 approved a bill, called the Clear Act, that would impose stricter safety regulations on offshore oil drilling. The bill would remove the Oil Pollution Act’s $75 million cap on oil spill damages. It also would require independent certification of drilling equipment, more frequent inspections, and higher penalties for violations, while restricting waivers of environmental regulations. (The latter may be significant in light of evidence gathered by Congressman Edward Markey (D-Mass) that, despite an EPA directive restricting BP’s use of chemical dispersants in responding to the BP oil spill, the Coast Guard approved 74 waiver requests in 48 days, nearly all the requests the company made). The bill also would impose a $2/barrel fee on oil drilled pursuant to federal leases to fund a $5.3 billion conservation program. An amendment that would bar companies like BP with histories of serious environmental and safety violations from receiving new drilling permits was approved, but oil industry lobbyists are confident that they can defeat this portion of the legislation when it is considered in the Senate. Stephanie Kirchgaessner, Move to Block BP from U.S. Drilling, Financial Times, July 31-Aug. 1, 2010, at A1.
Nigeria’s Parliament has delayed its August recess in order to complete work on new legislation to regulate oil development in that country. The Petroleum Industries Bill the Parliament is considering would break up the allegedly corrupt Nigeria National Petroleum Corporation and raise taxes and royalties on deepwater oil drilling. Chevron, ExxonMobil, and Total have been lobbying against the bill, which they claim will deter future investments in Nigeria’s oil industry by raising the government’s royalty rates from 45 to 75%, in line with the rates charged by Angola. William Wallis, Nigeria to Push Through Oil Sector Reform, Financial Times, July31-Aug. 1, 2010, at A4.
On Monday July 26, the U.S. Court of Appeals for the Fourth Circuit reversed an important trial court decision holding that emissions from coal-fired powerplants in Tennessee and Alabama caused a public nuisance in North Carolina that required the installation of additional pollution controls. The case involved a lawsuit by the attorney general of North Carolina. Despite evidence that the pollution was causing harm in North Carolina, the Fourth Circuit stated that the ruling should be reversed because it “would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike.” A copy of the court’s decision is available online at: http://pacer.ca4.uscourts.gov/opinion.pdf/091623.P.pdf I joined a group of law professors in signing an amicus brief supporting North Carolina in this litigation.
The Fourth Circuit’s decision strongly implies that the Clean Air Act preempts state nuisance law, but it does so by reference to cases that hold that federal environmental law only preempts FEDERAL common law. SInce 1862 when Bamford v. Turnley overruled the 1858 decision in Hole v. Barlow it has been clear that in the absence of specific preemption by statute even activities that comply with all applicable regulations can be held actionable under nuisance law if they cause foreseeable, significant harm, a proposition that the Fourth Circuit appears to reject. While common law actions rarely have been successful because of the difficulty of proving causal injury, here the court seems to be saying that even such a showing is insufficient so long as the plants have a permit. This would remove the ability of the common law to serve its traditional role as a backstop to stop harm that occurs when regulation proves inadequate. The court later shifts ground and suggests that state common law may not be preempted, but it accuses the trial court of applying North Carolina law rather than that of the source states as required by the Supreme Court’s Ouellette decision. But the court appears confused by the fact that North Carolina essentially codified the nuisance law of the source states when it adopted new legislation requiring North Carolina’s own powerplants to adopt emission controls that would be required to prevent significant harm from transboundary pollution. The court interpret the trial court as applying the law of the receiving state -- North Carolina -- when in fact there is no indication that the common law of source states Alabama or Tennessee is any more forgiving of pollution.
Studies released this week support the growing seriousness of global warming and climate change. The State of the Climate 2009 report found that climate change was “undeniable” in light of data gathered subsequent to the 2007 report of the Intergovernmental Panel on Climate Change. Gautam Naik, Climate Study Cites 2000s as Warmest Decade, Wall St. J., July 29, 2010, at A4. More than 300 scientists from 160 research teams in 48 countries contributed to the report. They found that each of the last three decades has been significantly warmer than the previous decade. The past decade was the hottest on record with the highest average global surface and lower-troposphere temperatures ever recorded. The study is available online at: http://www.ncdc.noaa.gov/bams-state-of-the-climate/2009.php A study published last week in the journal Nature found strong evidence linking rising sea surface temperatures and a significant decline in marine algae (phytoplankton) during the past century. Daniel Boyce, Marlon Lewis & Boris Worm, Global Phytoplankton Decline over the Past Century, Nature, July 29, 2010, at 591 (abstract available online at: http://www.nature.com/nature/journal/v466/n7306/full/nature09268.html).
On Thursday July 29 the seven-judge federal Judicial Panel on Multidistrict Litigation, meeting in Boise, Idaho, heard presentations from 23 lawyers on proposals to consolidate the hundreds of lawsuits concerning the BP spill that have been filed in various federal district courts. The courts (and judges) being proposed to hear the litigation are located in Louisiana, Texas, Mississippi, Alabama, Florida, and South Carolina. Many of the representatives of the oil industry favor Houston as the site for the litigation. Some proposals would assign to different courts different types of cases. John Schwartz, Lawyers, Far From Gulf, Skirmish on Spill Claims, N.Y. Times, July 20, 2010, at A13. Two of BP’s competitors - ExxonMobil and Royal Dutch Shell -- told their shareholders last week that the BP spill and subsequent offshore drilling moratorium will not have a significant effect on their profits or operations. Sheila McNulty, ExxonMobil Shrugs Off the Effect of Drilling Moratorium, Financial Times, July 29, 2010; Adam Jones, Shell Sees No Need to Change its Deepwater Operations, Financial Times, July 29, 2010.
I learned a lot at the conference, particularly with respect to how globalization is affecting many other areas of law beyond environmental law. The discussions provided strong evidence concerning the trends that Tseming Yang and I have referred to as the development of “global law” with the erosion of traditional distinctions between private and public law and between domestic and international law. I found especially interesting sessions on catastrophic damages, class actions, how to teach comparative law, transparency in global administrative law, the role of constitutional courts, human rights, and the complexity of transnational sources of legal authority. Justice Ruth Bader Ginsburg gave a luncheon address on Thursday. She recounted the long history of the U.S. Supreme Court considering the law of nations and expressed surprise at some of the questions concerning the relevance of foreign law asked of Elena Kagan during her recent confirmation hearings. Chinese law expert Jerry Cohen from NYU addressed the closing banquet, which was held at the Organization of American States (OAS) building. He urged the Congress to consider holding its 2018 meeting in Beijing (the 2014 meeting will be in Vienna) in order to more fully engage legal scholars in China. I counted only three law professors from mainland China in the registration list, along with eight professors from Taiwan and seven from Macau. Photos from the conference and the closing banquet at the OAS are online at: http://gallery.me.com/rperci/100700.
On Friday July 30 the U.S. House of Representatives by a vote of 209 to 193 approved a bill, called the Clear Act, that would impose stricter safety regulations on offshore oil drilling. The bill would remove the Oil Pollution Act’s $75 million cap on oil spill damages. It also would require independent certification of drilling equipment, more frequent inspections, and higher penalties for violations, while restricting waivers of environmental regulations. (The latter may be significant in light of evidence gathered by Congressman Edward Markey (D-Mass) that, despite an EPA directive restricting BP’s use of chemical dispersants in responding to the BP oil spill, the Coast Guard approved 74 waiver requests in 48 days, nearly all the requests the company made). The bill also would impose a $2/barrel fee on oil drilled pursuant to federal leases to fund a $5.3 billion conservation program. An amendment that would bar companies like BP with histories of serious environmental and safety violations from receiving new drilling permits was approved, but oil industry lobbyists are confident that they can defeat this portion of the legislation when it is considered in the Senate. Stephanie Kirchgaessner, Move to Block BP from U.S. Drilling, Financial Times, July 31-Aug. 1, 2010, at A1.
Nigeria’s Parliament has delayed its August recess in order to complete work on new legislation to regulate oil development in that country. The Petroleum Industries Bill the Parliament is considering would break up the allegedly corrupt Nigeria National Petroleum Corporation and raise taxes and royalties on deepwater oil drilling. Chevron, ExxonMobil, and Total have been lobbying against the bill, which they claim will deter future investments in Nigeria’s oil industry by raising the government’s royalty rates from 45 to 75%, in line with the rates charged by Angola. William Wallis, Nigeria to Push Through Oil Sector Reform, Financial Times, July31-Aug. 1, 2010, at A4.
On Monday July 26, the U.S. Court of Appeals for the Fourth Circuit reversed an important trial court decision holding that emissions from coal-fired powerplants in Tennessee and Alabama caused a public nuisance in North Carolina that required the installation of additional pollution controls. The case involved a lawsuit by the attorney general of North Carolina. Despite evidence that the pollution was causing harm in North Carolina, the Fourth Circuit stated that the ruling should be reversed because it “would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike.” A copy of the court’s decision is available online at: http://pacer.ca4.uscourts.gov/opinion.pdf/091623.P.pdf I joined a group of law professors in signing an amicus brief supporting North Carolina in this litigation.
The Fourth Circuit’s decision strongly implies that the Clean Air Act preempts state nuisance law, but it does so by reference to cases that hold that federal environmental law only preempts FEDERAL common law. SInce 1862 when Bamford v. Turnley overruled the 1858 decision in Hole v. Barlow it has been clear that in the absence of specific preemption by statute even activities that comply with all applicable regulations can be held actionable under nuisance law if they cause foreseeable, significant harm, a proposition that the Fourth Circuit appears to reject. While common law actions rarely have been successful because of the difficulty of proving causal injury, here the court seems to be saying that even such a showing is insufficient so long as the plants have a permit. This would remove the ability of the common law to serve its traditional role as a backstop to stop harm that occurs when regulation proves inadequate. The court later shifts ground and suggests that state common law may not be preempted, but it accuses the trial court of applying North Carolina law rather than that of the source states as required by the Supreme Court’s Ouellette decision. But the court appears confused by the fact that North Carolina essentially codified the nuisance law of the source states when it adopted new legislation requiring North Carolina’s own powerplants to adopt emission controls that would be required to prevent significant harm from transboundary pollution. The court interpret the trial court as applying the law of the receiving state -- North Carolina -- when in fact there is no indication that the common law of source states Alabama or Tennessee is any more forgiving of pollution.
Studies released this week support the growing seriousness of global warming and climate change. The State of the Climate 2009 report found that climate change was “undeniable” in light of data gathered subsequent to the 2007 report of the Intergovernmental Panel on Climate Change. Gautam Naik, Climate Study Cites 2000s as Warmest Decade, Wall St. J., July 29, 2010, at A4. More than 300 scientists from 160 research teams in 48 countries contributed to the report. They found that each of the last three decades has been significantly warmer than the previous decade. The past decade was the hottest on record with the highest average global surface and lower-troposphere temperatures ever recorded. The study is available online at: http://www.ncdc.noaa.gov/bams-state-of-the-climate/2009.php A study published last week in the journal Nature found strong evidence linking rising sea surface temperatures and a significant decline in marine algae (phytoplankton) during the past century. Daniel Boyce, Marlon Lewis & Boris Worm, Global Phytoplankton Decline over the Past Century, Nature, July 29, 2010, at 591 (abstract available online at: http://www.nature.com/nature/journal/v466/n7306/full/nature09268.html).
On Thursday July 29 the seven-judge federal Judicial Panel on Multidistrict Litigation, meeting in Boise, Idaho, heard presentations from 23 lawyers on proposals to consolidate the hundreds of lawsuits concerning the BP spill that have been filed in various federal district courts. The courts (and judges) being proposed to hear the litigation are located in Louisiana, Texas, Mississippi, Alabama, Florida, and South Carolina. Many of the representatives of the oil industry favor Houston as the site for the litigation. Some proposals would assign to different courts different types of cases. John Schwartz, Lawyers, Far From Gulf, Skirmish on Spill Claims, N.Y. Times, July 20, 2010, at A13. Two of BP’s competitors - ExxonMobil and Royal Dutch Shell -- told their shareholders last week that the BP spill and subsequent offshore drilling moratorium will not have a significant effect on their profits or operations. Sheila McNulty, ExxonMobil Shrugs Off the Effect of Drilling Moratorium, Financial Times, July 29, 2010; Adam Jones, Shell Sees No Need to Change its Deepwater Operations, Financial Times, July 29, 2010.
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