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, December 26, 2010

Shark Legislation, Class Trailers, China's PITI, Iran Fuel Subsidies, Canada's Oilsands, EPA GHG Regulations (by Bob Percival)

Before it adjourned last week the U.S. Congress approved the Shark Conservation Act of 2010 to restrict the practice of cutting the fins off sharks and then dumping the sharks overboard. The legislation requires any fishing vessel landing sharks in U.S. waters to keep their fins attached and it prevents nonfishing vessels from transporting fins without their carcasses. The legislation, which had been introduced by Guam Delegate Madeleine Bordallo, initially was approved by the U.S. House by voice vote in March 2009. Before it was approved in the Senate last week an exemption was added at the insistence of Senator Burr (R-N.C.) to allow those catching smooth dogfish off the coast of North Carolina to bring in their fins separately.

In October Apple Computer released the latest version of its popular iMovie software program (iMovie ‘11) that includes among its new features templates to make movie trailers. It struck me that it would be fun to make trailers for my upcoming classes. Last week I tried using the templates and was amazed at how easy it was produce movie trailers. I made them for my Global Environmental Law Seminar, my Constitutional Law class, and for the upcoming Stetson International Environmental Moot Court Competition that Maryland will be hosting in March. The trailers can be viewed online from with any browser that can view Quicktime files. The trailer for my Global Environmental Law seminar is at http://gallery.me.com/rperci#100744. The trailer for my Constitutional Law class, featuring video I shot at Independence Hall earlier this month after speaking at a conference in Philadelphia, can be viewed at http://gallery.me.com/rperci#100738. The International Environmental Moot Court trailer, which includes photos from previous competitions and from last May’s Jordanian National Moot Court Competition, can be viewed at http://gallery.me.com/rperci#100753.

Last week I had an opportunity to review an advance draft of the results of the second Pollution Information Transparency Index (PITI) for China, which will soon be published by the Beijing office of the Natural Resources Defense Council (NRDC) and Ma Jun’s Institute for Public and Environmental Affairs. PITI ranks Chinese cities on how well they are implementing China’s Open Information Law, which is similar to the U.S.’s Freedom of Information Act, with respect to environmental information. It has had a remarkable impact on some cities whose officials view it much like deans view the U.S. News rankings of schools in the United States. I will not steal their thunder in advance of the publication of the second PITI, but I can note a couple of positive developments it lauds that already are public information in China. Last March China’s Ministry of Environmental Protection (MEP) disclosed a list of hundreds of key enterprises whose emissions exceeded applicable standards, the first time the central government had disclosed monitoring results for major polluters. Hubei Province subsequently released a similar list for polluters in its region and in August 2010 the Chinese Ministry of Industry and Information Technology released a list of 2,087 companies that were being required to phase out outdated production facilities in 18 industries, including the iron, steel, cement and smelting industries. Some local governments also are engaging NGOs. In May 2010 Weihai City in Shandong Province held a public workshop on information disclosure with NGOs, the media, and officials of the local Environmental Protection Boards (EPBs). Last month Jiaxing City in Zhejiang Province held a similar public forum.

Last week Iran finally implemented its plan to reduce dramatically the $100 billion it has been spending annually to subsidize the price of fuel and other basic commodities. Officials estimated that the move would at least quadruple the price of gasoline while raising prices for electricity and water by threefold. To ease the impact of the reduced subsidies on its citizens the government is spending half of its cost savings to provide compensation payments that it promises to double next year. Drivers now will receive 16 gallons of gasoline per month at a price of approximately $1.52 per gallon and they may purchase additional gasoline for a price 75% higher, which is close to the world market price. Spain’s plan to reduce its costly subsidies for solar energy projects has come under fire from investors who claim that it will exacerbate the country’s banking crisis by forcing many solar producers into default. Because the Spanish government agreed to pay solar photovoltaic projects ten times the price of electricity generated from gas and coal, Spain now has 3,200 megawatts of solar capacity, more than six times what the government had expected to have by the end of 2010. Guy Chazan, Spain’s Cuts to Solar Aid Draw Fire, Wall Street J., Dec. 23, 2010.

On December 21 Canada’s Oilsands Advisory Panel released a report concluding that there is insufficient data to monitor the environmental effects of development of Canada’s oilsands. The panel had been appointed by former Canadian Environment Minister Jim Prentice. Canada’s current Environment Minister John Baird reacted to the report by announcing that the federal government of Canada accepts its findings and will work to establish a better system to monitor the environmental impact of oilsands development. Two other reports released this month - by Canada’s environment commissioner and the Royal Society of Canada also have faulted current environmental monitoring. U.S. environmental groups have asked the State Department to reject a Canadian request to double the size of Tanscanada Corporation’s Keystone pipeline for transporting oil from the Alberta area where the oilsands are concentrated. Edward Welsh & Nirmala Menon, Oil-Sands Monitoring Faulted in Report, Wall St. J., Dec. 22, 2010, at B4.

On December 23 the U.S. EPA announced that it had completed its plans for state greenhouse gas (GHG) permitting programs that will take effect in January. EPA will temporarily take over issuance of air permit in the states of Arizona, Arkansas, Florida, Idaho, Kansas, Oregon and Wyoming until these seven states have revised their programs to cover GHG emissions. Because Texas has refused to revise its air permitting program to include GHG emissions, EPA will take over the program. While this is the procedure specified in the Clean Air Act when a state implementation plan fails to meet federal standards, that did not stop Texas officials from denouncing it as “an arrogant act by an overreaching EPA that is trying to implement new, unnecessary controls on American industry.” James C. McKinley, Jr., “EPA Challenges Texas Over RUles on Emissions,” N.Y. Times, Dec. 23, 2010.

EPA also announced that it will propose new standards for controlling GHG emissions from power plants by July 2011 and for refineries by December 2011. Stung that many utility executives who have invested in clean energy projects support EPA’s new regulations on both GHG emissions and other pollutants, the Wall Street Journal ran an editorial last week denouncing “utility CEOs cheering on the Obama Administration’s plans to wipe out large portions of U.S. electric power capacity.” The editorial charged that “EPA is abusing environmental law to achieve policy goals that the democratic process has rejected, while also engineering a transfer of wealth to certain companies,” The EPA’s Utility Men, Wall St. J., Dec. 23, 2010, at A16. So companies who foresaw the need eventually to invest in clean energy sources because of long overdue regulations to improve protection of health and the environment are faulted by the Journal for (shockingly) actually making money at the expense of those who have profited for years from harming others with their pollution.

Monday, December 20, 2010

Russia Forest Road, Wikileaks, Culturomics, U.S. Sues BP, California GHG Regulations, SEC Regulations, New Counsel in Ecuador Suit (by Bob Percival)

On Tuesday December 14, Russian Deputy Prime Minister Sergei Ivanov announced that the controversial Moscow-St. Petersburg toll road will be routed through the Khimki Forest after all, despite environmental protests that led President Dmitry Medvedev to suspend work on the project last August (see Aug. 29, 2010 blog post). Ivanov chaired a commission examining the controversial $8 billion road project. Russia’s ministry of natural resources announced that it would seek to provide greater protection for the remaining portions of the forest and that it would increase the compensation to be paid for the road’s damage to the forest from 3 billion to 4 billion rubles (approximately $130 million). Ivan Blokov, Greenpeace’s Russia program director, vowed to take the fight to Vinci, a French company involved in the road construction project.

Wikileaks continues to publish leaked cables from U.S. embassies. Of the more than 250,000 cables it reportedly possesses, a total of 7,992 deal with the “environmental affairs.” Cables published last week revealed that U.S. diplomats in Brazil saw President Lula de Silva as simply bowing to political reality when he decided in December 2009 to postpone enforcement of the Brazilian Forest Code’s requirement that rural landowners in the Amazon retain 80% of their forest holdings as reserves. Following the December 2009 Copenhagen Conference, U.S. diplomats specializing in Cuba complained that “Climate change is Fidel Castro’s latest pet project in which poor, socialist countries are the victims and rich, capitalist countries are entirely to blame. . . .Some element of the [Government of Cuba] may see climate change as a legitimate concern, but the view from the top is that of a political propaganda goldmine.” In November 2009 the U.S. Embassy at the Vatican notes that Pope Benedict is stressing environmental concerns. It reports: “While the Vatican's message on caring for the environment is loud and clear, its message on biotechnologies is still low-profile. Quietly supportive, the Church considers the choice of whether to embrace [gentically modified organisms] GMOs as a technical decision for farmers and governments. The Vatican's own scientific academy has stated that there is no evidence GMOs are harmful, and that they could indeed be part of addressing global food security. However, when individual Church leaders, for ideological reasons or ignorance, speak out against GMOs, the Vatican does not -- at least not yet -- feel that it is its duty to challenge them. Post will continue to lobby the Vatican to
speak up in favor of GMOs, in the hope that a louder voice in Rome will encourage individual Church leaders elsewhere to reconsider their critical views.” The cables also indicate that Saudi officials were privately telling U.S. diplomats that they understood the need for the world to work together to combat climate change even as they were publicly questioning the science behind it and doing everything they could to obstruct a global agreement at Copenhagen.

Last week a new searchable Google database was publicized that includes all 2 trillion words contained in 15 million books the company has scanned. The books represent about 12% of all books published in every language since the Gutenberg Bible in 1450. Researchers using the database have discovered that the number of words in the English language has nearly doubled in the past decade to more than 1 million words, including 500,000 that do not appear in any dictionary. The database, which is available online at http://ngrams.googlelabs.com/, allows one to search the relative frequency with which terms of up to five words appear in the database each year. This is spurring interest in a new field that has been dubbed “culturomics” to explore changes over time in the popularity of certain terms. A search for the term “global environmental law” indicates that the term first appeared in books in 1980, but increased significantly in use during the 1990s. A chart showing the frequency of the use of "global environmental law" in books between 1975 and 2000 is displayed as part of my December 19, 2010 post on my parallel blog at: www.globalenvironmentallaw.com.

On Wednesday December 15, the U.S. government filed a lawsuit seeking civil penalties against BP and others involved in drilling and insuring the Macondo well whose blowout caused the catastrophic oil spill in the Gulf of Mexico. The lawsuit, which was filed in federal district court in New Orleans, did not specify a dollar amount of the penalties the government is seeking, but they could run to more than $20 billion. The suit was filed to meet a deadline imposed by the judge overseeing the consolidated oil spill litigation.

On December 15 the U.S. Securities and Exchange Commission (SEC) issued its proposed rule implementing the “conflict minerals” provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (see July 18, 2010 blog post). The proposed rule would require a broad array of companies, including retailers who sell store brand products, that use certain minerals to report to the SEC what steps they have taken to verify that the minerals did not help fund rebel groups in the Democratic Republic of Congo. A fact sheet on the proposed rule, on which public comment will be accepted until January 31, 2011, is available online at: http://www.sec.gov/news/press/2010/2010-247.htm. The SEC also proposed a rule to implement another provision of the Dodd-Frank legislation that requires resource extraction industries to report on payments they made to foreign governments.

On Thursday December 16, the California Air Resources Board by a 9-1 vote adopted regulations to implement the state’s cap-and-trade program to reduce greenhouse gas (GHG) emissions in the state by 15 percent below 2012 levels by 2020. Felicity Barringer, California Approves Stringent Pollution Controls, N.Y. Times, Dec. 17, 2010, at A19.

Plaintiffs suing the Chevron Corporation over pollution of the Oriente region of Ecuador have hired new legal counsel in response to Chevron’s efforts to discredit its existing lawyers. The plaintiffs have hired the Washington law firm of Patton Boggs and they have received new funding from Burford Capital Ltd., a London-based hedge fund that invests in litigation. Ben Casselman & Angel Gonzalez, Chevron Forces Legal Change, Wall St. J., Dec. 18-19, 2010, at B4.

Last week Beijing’s Municipal Commission of Transport indicated that it is considering severe new measures to combat horrendous traffic congestion in China’s capital. The measures may include congestion fees and barring vehicles from certain roads at certain times based on license plate numbers. There are now 4.7 million cars in use in Beijing, 2.1 million more than in 2005 - more than 1,000 new cars a day. Chinese officials estimate that if present trends continue traffic will slow to an average speed of 15 kilometers (9 miles) per hour on the city’s expressways by 2015.

Construction started last week on Israel’s first large project to generate electricity from solar energy. The project in the Arava Valley in southern Israel will employ 18,000 solar panesl on 20 acres of land to generate 5 megawatts of electricity. Larger projects are in the planning stage as Israel seeks to meet its goal of generating 10% of its energy from renewable sources by the year 2020. Charles Levinson, In Israel, Big Solar Field Begins to Rise, Wall St. J., Dec. 14, 2010, at B12.

Sunday, December 12, 2010

Cancun Agreement, EPA GHG Regulations, Supreme Court to Hear Climate Suit, Iran Killer Smog (by Bob Percival)

After all night talks on Friday December 10 and the last minute dismissal of objections from Bolivia by Mexican Foreign Minister Patricia Espinosa, who was chairing the conference, the nations participating in COP-16 adopted the Cancun Agreement. The agreement postpones until next year’s conference in South Africa a decision on whether to extend the Kyoto Protocol for a year. But it adopts 33 pages of text outlining a framework for further progress negotiating emission reductions, monitoring and verifying emissions, funding adaptation and forest protection, and facilitating technology transfer. The most remarkable achievement of the conference seems to be the willingness of all but one of the 194 nations to put aside their differences to reach agreement on a path forward. An advance, unedited copy of the agreement is available online at: http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf

Last week there were two very significant developments in climate change litigation in the U.S. courts. On Friday December 10, the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA regulations governing emissions of greenhouse gases (GHGs) that are scheduled to take effect on January 2, 2011. In a brief order the court stated that the plaintiffs had not met the standard for a stay because they “have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).” The court also ordered that the legal challenges to EPA’s endangerment finding, vehicle rule, timing rule and tailoring rule be heard by the same panel of the court on the same day. While these decisions do not address the merits of the litigation in which 35 petitioners are raising 80 challenges to four EPA rules, they will allow the rules to take effect for now.

On Monday December 6, the U.S. Supreme Court announced that it had agreed to review the Second Circuit’s September 2009 decision (see Sept. 27, 2009 blog post) to allow a public nuisance action by a group of states to go to trial against major electric utilities with coal-fired powerplants. Justice Sotomayor did not participate in the decision to review the case, probably because she initially was on the Second Circuit panel that heard oral argument in the case, even though she was not on the panel that decided it after she became a Supreme Court Justice. In the Supreme Court the case will be known as American Electric Power v. Connecticut (No. 10-174). The U.S. is supporting the utilities by claiming that EPA’s actions to regulate GHG emissions should preempt the lawsuit. The utilities would like a broader ruling that lawsuits involving climate change should not be heard by the courts because they are nonjusticiable political questions. Justice Kennedy’s vote may be critical to the outcome in the case. With Justice Sotomayor’s recusal, the best the states could do is likeluy to be a 4-4 split, if Kennedy, Ginsburg, Kagan and Breyer voted in their favor. This would affirm the decision below and allow the lawsuits, which seek an injunction ordering gradual reductions in GHG emissions and not damages, to go forward.

On Thursday I spoke at a conference held in Philadelphia on “Significant Legal Developments Affecting the Chemical Industry.” I discussed China’s new program for regulating new chemicals that is modeled in part on the EU’s REACH program. One of the other speakers, a lawyer who represents Exxon, presented a litany of the arguments used by climate change deniers and reported a “growing consensus” that climate change science “simply isn’t there.” He expressed hope that the Supreme Court’s ultimate decision in the AEP v. Connecticut lawsuit would bury climate change litigation that he claimed is being brought by greedy lawyers seeking contingency fees (an observation not applicable to the AEP v. Connecticut litigation which is being brought by government officials and does not seek damages).

Horrendous air pollution continued to afflict Iran this week, reportedly causing thousands of deaths. Iran’s minister of health said that emergency room admissions of people with respiratory problems increased 30% and an unofficial report put recent deaths from pollution at 2,500. Some Iranians are blaming the pollution on Western sanctions that have forced Iran to place greater reliance on domestic oil refineries to produce gasoline. Iranian gasoline reportedly has 10 times more particulates than imported gas. Farnaz Fassihi, Iranians Blame Smog on West’s Sanctions, Wall St. J., Dec. 11-12, 2010, at A8.

Now that classes are finished, I had a very busy week making presentations -- four in five days. On Monday December 6 I presented a paper promoting a petroleum price stabilization tax as a means for promoting investment in green energy technology at a meeting held in Berlin by the American Institute for Contemporary German Studies (AICGS). The meeting, part of AICGS’s Translatlantic Climate and Energy Dialogue, was held in the historic Haus Huth, the only building in Postdamer Platz that escaped World War II without significant damage. On Sunday afternoon I toured the Topography of Terror, an exhibit built on the site of Hitler’s bunker, that documents Hitler’s meticulous efforts to neutralize the legal system. I had hoped to fly back to D.C. Monday night, but mechanical troubles with the plane from Berlin to Frankfurt stranded me in Frankfurt for the night, so on Tuesday I flew from Frankfurt directly to New York where I joined my wife to attend a spectacular performance of “The Messiah” at the St. Thomas Church. On Wednesday I flew back to D.C. and spoke to a group of Rawlings Leadership Fellows in College Park at a seminar on environmental leadership. After the chemical industry conference in Philadelphia on Thursday, on Friday I gave a day-long workshop on forestry protection to a group of visiting Chinese officials from Hunan Province.

Sunday, December 5, 2010

Cancun Negotiations, BBC Talk Show, Wikileaks, Conflict Minerals, Student Films, Qatar World Cup (by Bob Percival)

Last Monday representatives of 193 nations began the 16th Conference of the Parties to the UN Framework Convention on Climate Change (COP-16) in Cancun, Mexico. Elizabeth Burleson has posted a guest blog report from Cancun. There are reports that the U.S. and China are making progress in negotiations concerning how to monitor and verify greenhouse gas (GHG) emissions. A proposal to extend the GHG reduction commitments in the Kyoto Protocol beyond their current 2012 expiration date has met with resistance from Japan, Russia and Canada. The talks are scheduled to conclude on Friday December 10.

On Friday December 3, I was a guest on the BBC World Service’s “World, Have Your Say” program to discuss climate change. The program is a kind of global talk show with callers from all over the world interacting with the panelists. We discussed the impact of individual behavior on climate change, the importance of collective action, and the political barriers to an enforceable global agreement. Callers from England, Latvia, Sweden, Mozambique, Belgium, South Africa, New Zealand, Mexico and Botswana spoke during the hour-long program and emails from India, Afghanistan, Uganda, Ireland, and Canada were read. A tape of the program is available online at: http://www.bbc.co.uk/programmes/p00c4pnd

The release of an enormous cache of confidential cables from U.S. diplomats by Wikileaks has caused considerable controversy. I noticed in the initial subject index Wikileaks had prepared that “Environmental Affairs“ was listed as among the most frequent subject discussed in the cables, which may reflect the growing importance of environmental diplomacy. There seem to be few surprises pertaining to the environment in the material released so far. EU External Affairs Minister Chris Patten is quoted in an April 2004 cable from the U.S. Embassy in Brussels as stating that Russia is willing to ratify the Kyoto Protocol in order to gain admittance to the World Trade Organization. A September 2009 cable from the U.S. embassy in Moscow explores why the U.S. should engage and assist Russia in a crackdown on illegal logging there.

The U.S. Securities and Exchange Commission (SEC) is considering how to implement the conflict minerals disclosure provisions of the Dodd/Frank Wall Street Financial Reform and Consumer Protection Act (see July 18, 2010 blog entry). The Wall Street Journal reports that U.S. retailers such as Walmart and Target who carry their own private label products are arguing that they should be exempt from the law because they do not exercise direct control over how these products are manufactured. Jessica Holzer, “Retailers Fight to Escape ‘Conflict Minerals’ Law,” Wall St. J., Dec. 2, 2010, at B1. How the SEC crafts its regulations implementing the law could have a major impact on the extent to which it encourages companies to green their supply chains.

On Monday December 1 my Environmental Law class screened the initial cuts of the short films the students made for this year’s Environmental Law Film Festival. The students made nine films. They included: a lego version of the 1972 film “Silent Running,” a sock puppet rock opera on oil drilling in the Arctic National Wildlife Refuge, the little mermaid takes on ocean pollution, an interview with a couple who were featured in BP’s “Beyond Petroleum” ad campaign, oysters in the Chesapeake Bay, geoengineering, the Leadership in Environmental Energy and Design (LEED) program, the story of the Patapsco River, and the health hazards of jumping into Baltimore Harbor. The films will be submitted to a panel of judges who will vote for the “Golden Tree” awards that will be presented to the students on March 23.

As the U.S. Environmental Protection Agency (EPA) celebrated its 40th anniversary last week, horrendous air pollution afflicted both Shanghai and Tehran. Many Chinese believe that Shanghai’s severe pollution is associated with the end of temporary measures to keep the air clean during the World Expo that closed on October 31. Air pollution was so bad in Tehran that the government closed public offices, banks and universities for a “pollution holiday” last Wednesday.

On Thursday FIFA awarded the 2022 World Cup to Qatar, the country that has by far the world’s largest GHG emissions per capita - 46 metric tons of CO2 per person annually in 2006, compared to 27.5 tons/person in second place United Arab Emirates and 19.3 tons/person in seventh-place U.S. To cope with summer temperatures that can reach 130 degrees Fahrenheit, Qatar plans to air condition the outdoor stadiums, though they are exploring using solar energy to power the cooling systems. Qatar will build nine new soccer stadiums to host the event, but it plans to dismantle and recycle some of them to developing nations after the event.

The U.S. Supreme Court had the Connecticut v. American Electric Power certiorari petition on its conference list for Friday December 3. It may announce tomorrow whether or not it will review the decision by the U.S. Court of Appeals for the 2nd Circuit allowing a common law nuisance action premised on climate change to go forward against large utilities that operate coal-fired powerplants.

On a personal note, my wife received wonderful news last Wednesday when her oncologist declared her chemotherapy complete and her cancer in remission for now. We celebrated together before I left for Europe. I am now in snowy Berlin, Germany where I will be making a presentation tomorrow morning on how to encourage green energy innovation at a conference sponsored by the American Institute for Contemporary German Studies (AICGS).

Saturday, December 4, 2010

Guest Blog Post on Cancun Negotiations by Elizabeth Burleson

Elizabeth Burleson, a visiting professor at the University of Oregon School of Law, has been spending the week at the Cancun climate change negotiations. She submitted this report, which also was shared with the environmental lawprofs listserv. Alan Miller has had to cancel his trip to Cancun.

COP 16 Innovation and Diffusion Update (6pm on Friday December 3) by Elizabeth Burleson

Slow negotiations are creeping forward regarding a new Climate Technology Mechanism, Technology Secretariat, Technology Fund, and a Technology Clearinghouse. I have spoken with World Bank, German, Japanese, G77+China, and a range of other state party, inter-governmental, and non-governmental delegates on efforts underway to removing bracketed language from the negotiating text. The emerging picture is one of retaining good will by postponing controversy. It remains to be seen to what degree technology transfer commitments will emerge as confidence building measures. Finance and technology transfer have been split, leaving many concerned about the means by which innovation and diffusion of environmentally sound technology may come about. Little discussion of the TRIPS / UNFCCC nexus has occurred here or elsewhere. On the bright side, genuinely environmentally sound technology transfer remains an area where mitigation and adaptation can be advanced together.