India Blocks Mining Project, Russia Blocks Forest Road, China's Mega Traffic Jam, , U.S. Seeks to Bar Climate Change Suit (by Bob Percival)

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.