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.