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

Saturday, October 23, 2010

India’s Green Tribunal, CBD COP-10, China's 5-Year Plan, Chinese Smelter Shut Down, Canada’s Syncrude Fined & Dean Xi’s Visit (by Bob Percival)

On October 19 India launched a new National Green Tribunal, a specialized court to hear the country’s environmental cases. India’s Environment Minister Jairam Ramesh views the court, created by Parliament’s passage of the National Green Tribunal Act last June, as an important part of efforts to strengthen enforcement of the nation’s environmental laws. The tribunal has 20 members - ten from the judiciary and ten environmental experts -- with Justice Lokeshwar Singh Panta serving as chairperson. It will have four regional circuits to hear environmental cases in various parts of the country. Armin Rosencranz, perhaps America’s leading expert on India’s environmental laws, is skeptical that the tribunal will make much difference. In 1995 India established a specialized tribunal to hear cases related to hazardous waste and in 1997 the country created the National Environmental Appellate Authority, which will be replaced by the new tribunal. Both entities were widely criticized and viewed as less than successful.

Last week delegates from nearly every country in the world convened in Nagoya, Japan for the Tenth Conference of the Parties (COP-10) to the Convention on Biological Diversity (CBD). The United States is the only one of the 193 initial signatories to the CBD that has failed to ratify it. The high level ministerial portion of the conference will take place from October 27-29. As the CBD convened, the UN released a study on “The Economics of Ecosystems and Biodiversity. The study, prepared by Indian economist Pavan Sikhdev, estimated that environmental degradation causes damage ranging from $2 trillion to $4.5 trillion per year. One editorial writer noted that the range of the study’s estimate was so wide “as to be almost meaningless,” but “still better than nothing.” Nature by the Numbers, Financial Times, Oct. 20, 2010.

Even as China scrambles to meet the pledge in its current 11th five-year plan to reduce energy intensity by 20% by the end of this year, a new 12th five-year plan has been drafted. It reportedly pledges to reduce the energy consumed per unit of output by another 17.3% during the years 2011-2015. It also may have even more ambitious goals for reducing the carbon intensity of output. The new plan is to be approved at the next session of the National People’s Congress in March 2011. Frantic efforts to meet the existing plan’s energy efficiency target reportedly have led to closures of steel mills, electricity reductions to small businesses, and even a week-long dimming of traffic lights in Anping in Hebei province. Chinese energy intensity had fallen by 15.6% from 2005 to 2009, but in the first quarter of 2010 it rose by 3.2% in response to economic stimulus measures. Leslie Hook, China Feels the Strain in Rush to Save Energy, Financial Times, Oct. 19, 2010.

On Friday October 22, the Shenzen Zhongjin Lingnan Nonfemet Company revealed that Chinese environmental authorities had forced it to stop production at a large lead and zinc smelter it owns in Shaoguan in Guangdong province. The shutdown reportedly follows the discovery of thalium contamination in Guangdong’s North River. Because the smelter contributes 83% of the lead and zinc production by the company, which itself supplies 6% of China’s zinc, the shutdown had an impact on global zinc prices, which rose 1.5% on Friday. Some observers speculated that the shutdown may be related to China’s hosting of the 45-nation Asian Games in Guangzhou, which is 145 miles downstream. James T. Areddy, Zinc Prices Reel as China Probe Targets Plant, Wall St. J., Oct. 23, 2010.

On October 22 a court in Alberta, Canada fined Syncrude, Canada’s largest oil sands operator, $2.92 million for causing the deaths of 1,603 ducks who the company failed to prevent from landing on oily tailings impoundments it operated. The court noted that the company had cut back on its efforts to keep birds away from the toxic pools. Approximately $1.95 million of the penalty will be devoted to environmental projects to protect wildlife as part of the province’s new “creative sentencing” system. Greenpeace denounced the fine as “no more than a slap on the wrist.” Ian Austen, Canadian Oil Company Fined for Duck Deaths, New York Times, Oct. 23, 2010.

On October 19 I hosted Xi Xiangmin, the dean of the Ocean University School of Law in Qingdao, China. I first met Dean Xi in 2007 when we both spoke at a international conference on environmental legislation hosted by the National People’s Congress of China in Beijing. Dean Xi was a law school classmate of Professor Wang Canfa of the China University of Political Science and Law. He is an expert on environmental law. In the U.S. he is visiting the University of Maryland, the University of Baltimore, the Environmental Law Institute, and Vermont Law School. He also is stopping at Princeton University to visit his son who is studying there for a Ph.D. in mathematics. While visiting Maryland, Dean Xi met with Dean Phoebe Haddon and was given a tour of our East Asian Legal Studies Program. We presented him with a copy of Emeritus Professor Hungdah Chiu’s renowned Chinese language book on international law. A picture of Dean Xi has been posted on my blog at: www.globalenvironmentallaw.com

Monday, October 18, 2010

Offshore Drilling Moratorium Lifted, Canada Lists BPA as Toxic, Spruce Mine Permit Veto, Chilean Miners Rescued, Chinese Drywall (by Bob Percival)

On Tuesday October 12, Interior Secretary Ken Salazar lifted the moratorium on deepwater oil drilling that had been imposed in the wake of the BP oil spill in the Gulf of Mexico. The move was criticized both by environmentalists, who believed that it was too hasty, and by the oil industry who complained that new regulations they must comply with would delay their receipt of permits.

The chaotic state of U.S. energy policy in the wake of the failure of U.S. cap-and-trade legislation may be illustrated by the current dispute between Constellation Energy Group and its partner Electricité de France (EDF) over whether to abandon a project to build an additional nuclear power plant at Calvert Cliffs, Maryland. After U.S.-based Constellation announced that it was canceling the project, EDF offered last week to buy out the joint venture on the condition that Constellation not force it to take over 12 of its other powerplants that use fossil fuels. Clearly the foreign firm places a much higher value on generation assets with a lower carbon footprint than its U.S. partner does.

Last week Canadian Environment Minister Jim Prentice announced that the Canadian government was adding the chemical bisphenol-A (BPA) to its register of toxic substances under the country’s Chemical Management Plan. BPA is widely used to harden plastics, and some jurisdictions have limited its use in products likely to be used by children, such as baby bottles, due to test data raising toxicity concerns. Environment Canada based its decision on test data linking the chemical to harmful neurodevelopmental and behavioral effects in rodents. Based on this data, the agency stated it was “considered appropriate to apply a precautionary approach” to protect public health and the environment.

The 184 million gallons of toxic sludge released by the October 4th collapse of a containment reservoir at a plant that converts bauxite into alumina in Hungary has now killed 9 people and caused major damage to two villages. Despite initial assurances from Hungarian officials and the company that owned the plant that the sludge was not toxic, it contains high concentrations of arsenic and in undiluted form is a caustic as lye. Nonetheless, Zoltan Nakoyni, the chief executive of the company (MAL Hungarian Aluminum Productiona and Trade) that owned the plant was released by order of a judge who rejected demands that he be prosecuted for negligence. Hungary’s state minister for the environment Zoltan Illes warned that there are many other similar sites in central and eastern Europe where containment structures for toxic wastes have not been adequately maintained. Dan Bilefsky, Hungary Sludge a Warning for Other Sites in Europe, N.Y. Times, Oct. 15, 2010, at A10.

On Friday October 15, EPA Regional Administrator Shawn M. Garvin announced that he was recommending that the agency veto a permit for the largest mountaintop coal mining project in West Virginia. The permit, which had been approved by the George W. Bush administration, would allow dynamiting of 2,278 acres of land with the spoil to be dumped into nearby valleys. EPA found that the spoil would bury seven miles of streams, destroying all aquatic life and spreading toxic contaminants downstream. The company seeking the permit, Arch Coal, stated that it would vigorously contest any veto. John M. Broder, EPA Official Seeks to Block West Virginia Mine, N.Y. Times, October 16, 2010. An indication of how unpopular climate change legislation in West Virginia was provided last week when the state’s Democratic governor Joe Manchin released a campaign ad where he literally fires a bullet through the Waxman-Markey cap-and-trade bill. A video of the ad can be viewed at: http://www.youtube.com/watch?v=xIJORBRpOPM. As another blogger noticed, Manchin’s bullet actually hits the “s” in “to create clean energy jobs” in the preamble describing the bill’s purpose.

My wife, daughter and I were glued to the TV last week to watch the rescue of the 33 Chilean miners who had been trapped underground for 69 days. My daughter is Chilean and my wife and I will be visiting Chile next week where I will speak at an environmental conference at the University of Chile Law School’s Center for Environmental Law. The rescue was an inspiration to the entire world and it demonstrated how global publicity can create support for enhanced safety standards. Chilean President Sebastián Piñera stated that “If Chile wants to be a developed country it’s not just about sitting at the table with European countries but about treating workers as if we were a developed country.” He vowed to upgrade health and safety standards to respect the “life, health, integrity and dignity” of workers. Jude Webber, Chilean President Pledges “New Deal”, Financial Times, October 14, 2010. Editorial cartoonist Jeff Danziger portrayed officials in China, where more than 2,600 coal miners were killed in 2009 (down from 7,000 deaths in 2003), as asking whether this means that they will have to rescue trapped Chinese miners. See the fifth cartoon in the slideshow at: http://www.washingtonpost.com/wp-dyn/content/gallery/2010/10/15/GA2010101505085.html?referrer=emaillink

On Thursday October 14 a federal judge in New Orleans approved a settlement between homeowners, importers, manufacturers and distributors of drywall manufactured by a Chinese company, Knauf Plasterboard Tianjin. The drywall was linked to sulfur fumes that corroded metal and wiring and allegedly caused health problems for occupants of homes in which it was used. The companies agreed to remove and replace the drywall and electric wiring, gas tubing and appliances in 300 homes in 4 states at a cost estimated at $150,000 per home. It is believed that the settlement, which does not resolve claims of harm to health, could serve as a model for future settlements of similar lawsuits. M.P. McQueen, Deal in Drywall Case, Wall St. J., Oct. 15, 2010, at A5.

On Tuesday October 12 I was the luncheon speaker for the National Oceanic and Atmospheric Administration’s Law of the Sea Convention Working Group at NOAA headquarters in Silver Spring, Maryland. The topic of my talk was “Liability for Transboundary Environmental Harm and Emerging Global Environmental Law.” After the talk I had lunch with a group of NOAA attorneys and interns, including a Maryland law student who is interning at the agency.

Monday, October 11, 2010

Hungarian Sludge Spill, Tianjin COP-16 Preparatory Meeting, Cap-and-Trade Postmortem & EAB Field Trip (by Bob Percival)

On October 4 the collapse of an impoundment structure at the MAL Hungarian Aluminum Production & Trade plant in Ajka, Hungary spilled more than 200 million gallons of toxic red sludge that killed seven people, sent more than 100 to the hospital with chemical burns, and polluted waterways 100 miles southwest of Budapest. The sludge contains heavy metals that burned those who came into contact with it. Hungarian authorities sought to dilute the heavily alkaline sludge by dumping gypsum into tributary rivers and opening sluice gates to raise water levels. Hungarian environmental NGOs claimed that they had urged the government for years to control risks from the impoundment at the plant, but the company maintained that the waste was not considered toxic under EU standards. By October 7 the sludge had reached the Danube River, though with diminished alkalinity of 8.5 pH that was killing fewer fish than in the vicinity of the plant. Fears that a second impoundment structure will collapse led to the evacuation of the village of Kolantar on October 9.

Last week representatives from more than 190 nations gathered in Tianjin, China for the final meeting in preparation for the 16th Conference of the Parties (COP-16) to the UN Framework Convention on Climate Change, which will open in Cancun, Mexico on November 29. Unfortunately, little progress was made and few are expecting any dramatic results from the Cancun meeting. China’s representative reportedly called the U.S. delegate a “preening pig” given the lack of U.S. action on cap-and-trade legislation. Todd Stern, the chief U.S. climate negotiator, continued to promise that the U.S. would reduce its greenhouse gas (GHG) emissions by 17% by 2020, in line with its Copenhagen pledge and what the Waxman-Markey legislation that passed the House, but not the Senate, was expected to produce. Disagreement also continued on the size of a fund to assist developing countries in controlling their GHG emissions, though some reports suggest that progress was made on logistical details concerning how the fund would operate.

With cap-and-trade legislation now being disavowed by congressional candidates, many are discussing the reasons why the Senate failed to act and fingers are being pointed in several directions. Columnist Tom Friedman identifies five factors: “Mindless tribal partisanship,”
 “A TV network acting as the political enforcer of the Republican Party,” “Special interests buying policy,” “Politicians who put their interests before the country’s,” and “A political system that cannot manage multiple policy shifts at once -- even though it needs to.” Thomas L. Friedman, “An X-Ray of Dysfunction,” New York Times, Oct. 9, 2010.

On Thursday October 7, 23 students from my Environmental Law class made a field trip to EPA to watch an oral argument before the Environmental Appeals Board (EAB) in a case challenging a permit for an oil drilling platform off the coast of Alaska. The five students who arrived first were escorted to the argument by the Board’s clerk and reported that it was a fascinating argument with some judges sharply challenging Region 10’s seeming deference to Shell Oil in drafting the permit. However, 18 students who arrived a few minutes late due to heavy traffic then waited for an hour in EPA’s lobby after clearing security because the guards insisted that they needed an escort to the argument who was expected shortly, but who never materialized. Thus, even though the argument was being conducted in a room with plenty of empty seats only a few doors away from where the students were required to wait, EPA security would not let them in the Administrative Courtroom. Even the U.S. Supreme Court allows latecomers to attend its arguments so long as there is space in the courtroom. We had submitted all of the students’ names to EPA a week in advance and every student who said they were coming made the pilgrimage from Baltimore. I am amazed that this happened and I doubt if the students will be eager to visit the EAB again.

Monday, October 4, 2010

U.S. Supreme Court 2010-2011 Term, 2nd Circuit ATS Decision, Indian Smelter Shutdown & U.S. Fuel Economy Targets (by Bob Percival)

Today is the first Monday of October and the U.S. Supreme Court begins its 2010-2011 Term with a new Justice (Elena Kagan) and no environmental case on its argument calendar. Despite the Court’s bare environmental docket, the importance of the judiciary in the development of environmental law has been illustrated by recent cases. For example, on September 17, a panel of the U.S. Court of Appeals for the Second Circuit ruled 2-1 that corporations cannot be held liable for violations of the Alien Tort Statute (ATS) because international law does not hold corporations civilly liable for torts in violation of the law of nations. The majority opinion in the case of Kiobel v. Royal Dutch Petroleum was authored by Judge Jose Cabranes over a vociferous dissent from Judge Pierre Leval. The decision would wipe out many existing ATS suits, while still allowing individuals to be sued under the ATS. It would have barred the lawsuits that led to large settlements by Unocal in the Burma litigation and by Shell Oil with the survivors of Ken Saro-wiwa in Nigeria. In his strong dissent Judge Leval argues that there is no authority supporting the majority’s position which would allow corporations to profit from egregious violations of universal norms of behavior with impunity from civil liability. Plaintiffs are likely to seek a rehearing en banc and the issue ultimately could be decided by the U.S. Supreme Court, which narrowly avoided neutering the ATS six years ago in the Sosa v. Alvarez-Machain case.

Last week the Madras High Court in India ordered Sterlite Industries, a subsidiary of Vedanta Resources, to close its Tuticorin copper smelter for violating environmental regulations in a sensitive coastal area of Tamil Nadu state. The smelter, which was built in 1996, is located 15 kilometers from the Gulf of Mannar, a national marine park, despite a requirement that it be no closer than 25 kilometers. The company also had failed to develop a 250 meter green belt around the plant. The decision sent shock waves through the Bombay Stock Exchange. The head of research for JPMorgan India, Jahangir Aziz, stated that “Somebody has to be made an example of. They ran into some judges who said: ‘Enough is enough. Nobody is doing anything [to enforce environmental laws] so we are’.” Amy Kazmin, Fresh Blow to Vedanta’s Battered Green Credentials, Financial Times, Sept. 29, 2010. On Friday October 1 the Supreme Court of India granted a temporary stay of the lower court’s order to close the smelter until a hearing on October 18.

Last week the U.S. Environmental Protection Agency (EPA) and the Department of Transportation (DOT) proposed a dramatic increase in U.S. fuel economy standards to require vehicles to average as much as 62 miles per gallon by the year 2025. The agencies are seeking public comment on this proposal. Regulations they issued in April require vehicles to average 35 mpg by model year 2016. The Wall Street Journal reported that General Motors Company, which is now 61% controlled by the U.S. government, is accelerating plans for a new, more fuel-efficient, line of large sport utility vehicles. Siobhan Hughes & Sharon Terlep, GM Plans New SUVs Ahead of Fuel Goals, Wall Street J., Oct. 2-3, 2010, at 1.