Ma Jun Receives Prince Claus Award

Ma Jun Receives Prince Claus Award
Chinese environmentalist Ma Jun receives the Prince Claus Award at the Dutch Royal Palace in Amsterdam on Dec. 6, 2017

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 25, 2011

Cuba Trip, End of Durban COP-17, EU Airline Cap & Trade Upheld, Incandescent Bulb Phaseout Delayed, EPA Mercury Rule (by Bob Percival)

I am back in D.C. after ten days in Cuba on a people-to-people exchange trip sponsored by the National Geographic Society. As anticipated, very limited internet access there precluded me from posting a blog entry a week ago. The trip was an amazing journey. A 40-minute flight from Miami seemed to transport us back more than 50 years in time to a land with little modern transportation or communication technology and a place where the Cold War still rages. Imagine a country with few cellphones, no private internet access, and where the only advertising is propaganda extolling the virtues of the socialist revolution more than half a century ago.

On our first full day in Havana we met with historic preservationist Miguel Coyula, who discussed the efforts being made to restore Havana’s spectacular colonial architecture. We then spent the day exploring old Havana. The next day we met with a group of Cuban officials, including Elpidio Pérez Suárez, a justice of Cuba’s Supreme Court, at the National Union of Jurists to discuss Cuba’s legal system. We then visited Finca Vigia, Ernest Hemingway’s home, which is located a short distance east of Havana. On our third full day in Cuba we traveled west of Havana to visit the famous Robaino tobacco farm near Pinar Del Rio and we stayed overnight in the picturesque Viñales Valley that features beautiful karst scenery. We later visited the Las Terrazes Bio-Park and a school that incorporates ecological education in all of its classes. We then shifted our base of operations to Cienfuegos from where we visited historic old Trinidad, a World Heritage site, and the Playa Giron where the ill-fated Bay of Pigs invasion took place in April 1961. We then returned to Havana where we met the famous Cuban artist José Fuster and toured the Cementerio Colon, an historic old cemetary. On our last full day in Cuba my wife and I split away from the group to attend a baseball game in Havana between Metropolitana and Granma. We were struck by the quality of play -- close to major league caliber -- as well as the absence of commercialism in the stadium (the only billboard display was a sign announcing in Spanish that “Sport is the right of the people”), and the passion of the fans.

We were blessed with wonderful guides - Christopher Baker ( who has authored several books about Cuba, including the wonderful “Mi Moto Fidel” about his motorcycle trip around the island, and Neyla Carpio, who works for the Cuban government and passionately disagreed with Baker’s criticisms of the ruling regime. One could not but be struck by the irony of people being transported on ox carts next to billboards extolling the virtues of the socialist system. Due to the U.S. embargo all that we brought back were CDs of Cuban music, but we still were pulled aside by U.S. Customs in Miami for an extra x-ray of our luggage. When I tried to check my Charles Schwab account via the internet from Havana, I received a message stating that access was denied because I was using a computer located in a “dangerous area” of the world. Upon returning to the U.S. I discovered that Schwab had frozen my account because of this (I subsequently was able to get it unfrozen with a phone call explaining the circumstances).

Cuba’s economy collapsed after the fall of the Soviet Union, a time now called the “special period” by the Cuban government. Cuba’s energy infrastructure now relies heavily on discounted oil from Venezuela traded in return for Cuban medical services. Cuba has greatly reduced power blackouts by decentralizing its electrical grid, reportedly in response to some of Amory Lovins’ work. Oliver Houck’s article “Environmental Law in Cuba,” 16 J. Land Use & Envt’l Law 1 (2000) is still the definitive work on environmental law in Cuba. Cuba has some wonderful protected areas, but it undoubtedly will face considerable environmental challenges as its development accelerates in response to greater economic openness. Once the country opens up and U.S. sanctions are lifted, the Cuba that I saw is likely to be radically transformed. The Cuban people express great warmth toward Americans, though not always toward the U.S. or Cuban governments. They seem particularly passionate about Cuban music, the beauty of their country, dogs, baseball, and ice cream. There were so many amazing things to photograph in Cuba that I took more photos than ever. I have edited and labeled the best and posted them online along with some brief video clips at: A 16-minute video slideshow of the trip that I prepared is available online at:

While I was in Cuba the Durban COP-17 conference went into overtime before concluding with a face-saving “agreement to agree” in the future on binding measures to control emissions of greenhouse gases. Opinion is divided about the significance of this agreement with the commentaries reflecting a kind of “glass half full/glass half empty” quality. To me it seems to represent a further confirmation of the diminishing importance of top-down approaches to international environmental law, in line with my theory about how global environmental law is now developing more from the bottom up. The most shameful performance at the Durban COP was that of the Canadian delegation, which during the conference denied persistent rumors that Canada planned to withdraw from the Kyoto Protocol only to confirm them shortly after the conference ended.

A further illustration of this trend is the European Union’s application of cap and trade regulations to control greenhouse gas emissions to all airlines who fly to and from the EU. On December 21 the European Court of Justice rejected legal challenges to the regulations that had been brought by foreign airlines. Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, Case C-366/10. The Court found that the regulations did not violate principles of customary international law including sovereignty of states over their airspace and freedom to fly over the high seas. The Court also found that the regulations were not precluded by the Chicago Convention on International Civil Aviation and that they did not violate the “Open Skies” Air Transport agreement between the United States and the European Union. The decision was not unexpected and U.S. airlines indicated that they would comply with it while still vowing to persuade the EU to rescind the rules, which will take effect on January 1, 2012. A press release in English from the Court describing the decision is available online at: A copy of the Court’s judgment is available at: Now that the EU can require U.S. airlines to reduce their greenhouse gas emissions on their flights to and from Europe, an appropriate U.S. response would be for us to do the same for flights by EU airlines to and from the U.S. But that may be difficult to do in the absence of a U.S. cap-and-trade system.

While I was in Cuba the U.S. Congress resolved a budget battle by agreeing to appropriations legislation that included a provision to block for nine months (until Sept. 30, 2012) the expenditure of funds to enforce tighter energy efficiency standards that would start to phase out incandescent light bulbs in the U.S. The tighter energy efficiency standards had been adopted by Congress with overwhelming bipartisan support in the 2007 Energy Independence and Security Act. Now it has become an article of faith among some on the right that they represent a severe interference with individual freedom. Canada also has postponed for two years to January 1, 2014, a ban on importation of inefficient incandescent light bulbs, which actually waste the vast majority of their energy by generating heat rather than light. The move to postpone the energy efficiency standards likely will harm U.S. suppliers of more efficient light bulbs who took the regulations seriously while providing temporary windfalls to foreign companies.

Last week the U.S. Environmental Protection Agency (EPA) released long-awaited regulations to require U.S. power plants to reduce their emissions of mercury and other air toxics. EPA estimates that the new regulations will prevent as many as 11,000 premature deaths and 4,700 heart attacks annually while preventing 130,000 cases of childhood asthma symptoms and 6,300 cases of acute bronchitis among children each year. Predictably the regulations were denounced by the editors of the Wall Street Journal, Lisa Jackson’s Power Play, Wall St. J., Dec. 22, 2011, who previously had argued that the regulations could may the lights go out. “If the Lights Go Out,” Wall St. J., Dec. 6, 2011. Their argument was complicated by letters to the editor from the CEOs of two large electric utilities who claim that the utility industry is “well-positioned to comply with these rules” and that the “rules should not be controversial” because “[n]o one disputes that mercury is harmful to human health or that the technology is available now to reduce mercury emissions dramatically.” “Utilities Have Planned for Years for the ‘New’ EPA Rule, Wall St. J., Dec. 10-11, 2011, at A14 (letters to the editor from Jack Fusco, CEO and President of Calpine Corp. and Ralph Izzo, Chairman, CEO and President of PSEG). The Journal editors responded to these letters by denouncing the utility executives as having a vested interest in profiting from higher electricity prices.

Next week I will review the top ten global environmental law developments of the year. Merry Christmas.

Friday, December 9, 2011

Cuba Trip, Durban COP, Beijing Air Pollution, U.S. Battery Recycling in Mexico, Laos Dam, Fracking Study & Call for Papers (by Bob Percival)

I am publishing this blog entry a little early this week because tomorrow morning I will be flying to Havana for a 10-day people-to-people visit arranged by the National Geographic Society. Because I am uncertain about the state of internet access in Cuba, I do not know if I will be able to post more blog entries until after I return to the U.S. on December 19.

Final negotiations are underway in Durban at the conference of the parties (COP-17) to the UN Framework Convention on Climate Change. On December 8 a courageous 21-year old college student from Middlebury College, Abigail Borah, interrupted a speech by Todd Stern, the chief U.S. climate negotiator, by saying: “I am speaking on behalf of the United States of America because my negotiators cannot. The obstructionist Congress has shackled justice and delayed action for far too long. I am scared for my future. 2020 is too long to wait. We need an urgent path to a fair, ambitious and legally binding treaty.” Ms. Borah’s interruption was greeted with applause even though she was ejected from the meeting hall. Stern later called a press conference where he described Ms. Borah as a “very sincere and passionate young woman.” He then suggested that the U.S. might indeed go along with an EU proposal to launch a process designed to reach a new climate agreement in 2015, which would become effective in 2020, rather than waiting until 2020 to negotiate such a treaty. The Global Carbon Project reported on December 4 that global emissions of carbon dioxide rose by a half billion tons in 2010, a 5.9% increase that likely was the largest jump in any year since the dawn of the Industrial Revolution.

This was a tough week for breathing in Beijing as a brown haze encircled the city and levels of particulates skyrocketed to extremely hazardous levels. The pollution was so bad that 700 outgoing flights were canceled over a two-day period and roads were shut down due to poor visibility. Environmental activists pushed the Chinese government to be more forthcoming in releasing air pollution data to the public. On December 6 the China Daily reported that air pollution is causing severe health problems, noting that lung cancer in Beijing has increased by 60% in the last decade even though the rate of smoking was unchanged. Edward Wong, Outrage Grows Over Air Pollution and China’s Response, N.Y. Times, Dec. 7, 2011, at A15.

On December 9 the New York Times published a shocking expose showing that major U.S. battery-manufacturing companies have shipped huge quantities of used batteries to recyclers in Mexico where the lead is recycled with virtually no environmental controls. Last year U.S.-based Johnson Controls shipped 160,000 metric tons of batteries to Mexican recyclers. The percentage of used batteries in the U.S. that are exported to Mexico has jumped from 6% in 2007 to 20% in 2010. The exports are harming domestic battery recyclers who must comply with much tougher environmental regulations. Mexican children living near the recycling operations are suspected of having lead poisoning, but virtually no funds are available to test them. Elisabeth Rosenthal, Used Batteries from U.S. Expose Mexicans to Risk, N.Y. Times, Dec. 9, 2011, at A1.

A plan to build the $3.5 billion Xayaburi dam on the Mekong River in Laos was deferred this week by a vote of the Mekong River Commission, whose members include Cambodia, Laos, Thailand, and Vietnam. This is the second time this year that the project has been deferred pending further study of its environmental impacts. James Hookway, Environmental Concerns Delay Mekong Dam Project, Wall St. J., Dec. 9, 2011, at A11.

After three years of study, the U.S. Environmental Protection Agency (EPA) released a draft report on December 8 that links hydraulic fracturing for natural gas in Wyoming’s Pavillion field to contamination of drinking water wells in the vicinity. Companies using fracking to extract natural gas have long insisted that there is no proof that it has contaminated drinking water supplies. EPA discovered levels of various chemicals associated with fracking well above standards set by the federal Safe Drinking Water Act (SDWA) in groundwater monitoring wells near fracking sites. The Kirk Johnson, EPA Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 9, 2011, at A19. However, due to an amendment to energy legislation promoted by Vice President Dick Cheney in 2005, fracking has been exempted from the SDWA. The EPA study, which now will be subject to public comment and peer review, was undertaken in response to complaints from local residents about the smell and taste of their drinking water. The wells drilled in the Pavillion field were shallower than those used in fracking operations in other parts of the country.

This week the IUCN Academy of Environmental Law released a “Call for Paper/Presentation Abstracts” for the 10th Colloquium that will be held at the University of Maryland Francis King Carey School of Law from July 1-5, 2012. The Colloquium organizers welcome abstracts for papers and/or presentations on a broad array of topics. These include: approaches for improving global environmental law and governance, how to overcome political resistance to sustainable development policies, new strategies for promoting environmental justice and using law to advance sustainability, where are we after Rio+20 and where we should be going from here. Papers may focus on strategies for addressing specific environmental problems, new developments in national and regional environmental law, and the interaction of international and domestic law and policy. A copy of the call for papers is available online at: A “Call for Films” for the same Colloquium, which will host a festival of short environmental films, will be issued soon.

Monday, December 5, 2011

Gloom in Durban, Bali Montreal Protocol COP, Fracking Contracts, Supreme Court RCRA Case, Lovins Workshop (by Bob Percival)

After a week of meetings in Durban, South Africa, the Conference of the Parties to the UN Framework Convention on Climate Change (COP-17) remains sharply divided on most major issues, including how to fund the Green Climate Fund to provide financial assistance to developing countries and whether a global post-Kyoto treaty should be adopted. Some critics have begun to refer to the COP as the “Conference of Polluters”. There were a few positive developments with the Chinese delegation for the first time indicating that it eventually might support global limits on greenhouse gas emissions in a treaty to be negotiated by 2020. The International Chamber for Shipping, representing 80% of the world’s merchant marine, joined Oxfam and WWF to support a carbon tax on emissions from ships. COP-17 is scheduled to conclude on Friday and, as usually happens, it is likely that the most significant developments will occur in the waning hours of the meetings.

In a belated bit of news, the Bali meeting of the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer on November 21-25 failed to adopt a proposal backed by the U.S. for a 30-year phaseout of hydrofluorocarbons that are potent greenhouse gases. India, China and Brazil led opposition to the proposal, which had been supported by a significant majority of the participating parties. It is now widely appreciated that the Montreal Protocol, while directed to protecting the ozone layer, also has reduced greenhouse gas emissions by even more than the reductions required by the Kyoto Protocol.

Last week the New York Times ran a major story reporting that many owners of properties that have been leased for hydraulic fracturing (“fracking”) to extract natural gas have misunderstood the contractual terms of the leases. Ian Urbina & Jo Craven McGinty, Learning Too Late of Perils in Gas Well Leases, N.Y. Times, Dec. 2, 2011, at A1. The companies generally do not describe the environmental risks to the property owners and most of the contracts do not require the companies to provide compensation for environmental damage. At least two-thirds of the leases allow the companies unilaterally to extend the lease term. This article could provide terrific material for law students to study in a first-year Contracts course.

The U.S.-based battery maker Johnson Controls reported last week that its Shanghai factory has been cleared to resume production after a temporary shutdown to investigate lead pollution near the plant. James T. Areddy, Battery Maker Is Cleared in Shanghai Lead Probe, Wall St. J., Dec. 1, 2011, at B4. As reported in this blog on September 18, 2011, the plant had been shut down by Chinese authorities after the discovery of severe lead poisoning in children living nearby.

On November 28 the U.S. Supreme Court announced that it had agreed to review a case challenging the amount of a fine imposed on a corporation for illegally storing hazardous mercury waste in violation of the Resource Conservation and Recovery Act (RCRA). The Court’s motivation for taking the case over the opposition of the federal government may be a desire to clarify the limits of its 2005 opinion in Apprendi v. United States holding that enhanced sentences could not be imposed based on certain factual findings not proven before a jury. In the case before the Court -- Southern Union Co. v. United States, No. 11-94 -- the company claims that it should have been fined only $50,000 for a single incident of illegally storing waste, rather than the $18 million penalty imposed based on daily penalties for more than 2 years of illegal storage.

I have spent the last few days in one of the most beautiful parts of the world at a wonderful workshop on “The Tao of Global and Personal Ecology” with Amory Lovins and Chungliang Huang. The workshop was held at California’s Esalen Institute, which is located atop cliffs overlooking the Pacific Ocean near Big Sur. Lovins discussed his Rocky Mountain Institute’s new book “Reinventing Fire: Bold Business Solutions for the New Energy Era” which outlines a program for greening the four energy-intensive sectors of the economy: transportation, buildings, industry and electricity. See I was impressed with Lovins’s relentless optimism (“I don’t do problems, I only do solutions”) and his emphasis that the transition to a green economy could be accomplished not by emphasizing government intervention, but rather by convincing business leaders that it would be profitable. Lovins has been advising business leaders and the U.S. military on how to transform their use of energy. He and Chungliang Huang have been doing work in China where Lovins’s book “Natural Capitalism” was embraced by the Chinese leadership in part because of the many positive ways the title’s Chinese translation resonated with them. By contrast, I have long been told that the title of Al Gore’s “An Inconvenient Truth” did not translate well into Chinese, making it far less popular there.

Sunday, November 27, 2011


On Monday November 28 the 17th Conference of the Parties (COP-17) to the UN Framework Convention on Climate Change also meeting as the 7th Meeting of the Parties to the Kyoto Protocol convenes in Durban, South Africa. Even though developed countries’s Kyoto Protocol commitments to reduce emissions of greenhouse gases (GHGs) during the 2008-2012 period will expire next year, there seems to be little prospect of a new global agreement to succeed Kyoto. In an apparent effort to undermine the conference, thousands of more stolen emails from the Climate Research Unit of the University of East Anglia again have been posted anonymously on the internet, this time on a Russian server. They are from the same time period as the emails posted two years ago and they do not appear to contain any significant new revelations. Investigations spawned by the first incident led to the climate scientists whose emails had been purloined being cleared of any wrongdoing, but they gave some politicians a convenient excuse to retract their support for policies to control GHG emissions.

In pre-COP negotiations, the U.S. reportedly refused to agree to a new blueprint for the Green Climate Fund to provide financial assistance to developing countries for the transition to low-carbon economies. The fund, created in 2009 at COP-15 in Copenhagen, was supposed to provide $100 billion in annual assistance by the year 2020. Pilita Clark & Javier Blas, US Blocks Key Fund in Climate Agreement, Financial Times, Nov. 25, 2011, at 1. This will be a major issue to be subject to further negotiations at the Durban COP.

Last week the prices of carbon allowances fell to record lows. The price of UN-backed certificates of emission reductions (CERs) fell to €5.90 (approximately $7.85). This represents a decline in price of more than 50 percent since last June. On November 24 the price of EU cap-and-trade allowances hit a record low of €7.80 (approximately $10.35) per ton, a 15 percent decline in one week. Javier Blas, Carbon Prices Tumble to Record Low, Financial Times, Nov. 25, 2011, at 22. The decline may be due in part to fears of a European economic collapse if the current financial problems of countries in the Eurozone are not adequately resolved.

Last week the government of Brazil imposed a moratorium on offshore drilling by Chevron while it investigates the causes of a 3,000-barrel oil spill that occurred earlier this month at Chevron’s Frade project. On November 21 IBAMA, the Instituto Brasileiro do Meio Ambiente E Dos Recursos Naturais Renováveis (Brazilian Institute of Environment and Renewable Natural Resources), the Brazilian government agency responsible for regulating Chevron’s activities, fined the company ₨50 million (approximately $28 million), and it indicated that additional fines of up to ₨40 million could be imposed. The chief executive of Chevron’s Brazilian unit, George Buck, apologized for the spill during a hearing before Brazil’s Congress on November 23.

Sunday, November 20, 2011

O'Malley Attacks Clinic, Apple Audits China Suppliers, Chevron Brazil Spill, IPCC on Severe Weather, Renewable Energy, ABA Panel (by Bob Percival)

On November 16 Maryland Governor Martin O’Malley released a shocking letter denouncing a lawsuit filed last year by Maryland’s Environmental Law Clinic to stop poultry waste pollution of the Chesapeake Bay. The Governor’s letter claims that the lawsuit perpetuates an “ongoing injustice.” Despite the fact that the Clinic has won every motion in the case, he characterizes the lawsuit as of “questionable merit” and suggests that the clinic actually should be representing the defendants. A copy of the Governor’s letter is available on a link at my parallel blog at: www. (see Nov. 20th post). The governor’s action revives an attack on the clinic that was soundly beaten back in spring 2010 when the national legal community denounced an effort by Eastern shore legislators to cut the relatively minimal funding the law school receives from the state in an effort to force the clinic to drop its ground-breaking lawsuit against corporate agribusiness for polluting the Bay. On November 17 Maryland law dean Phoebe Haddon responded to the Governor with a letter defending the law clinic. She noted that there were “good grounds for the lawsuit, which seeks to protect the Chesapeake Bay for all Marylanders,” and she cited “inaccuracies” in the governor’s letter. A copy of Dean Haddon’s response is available on a link at my parallel blog at: www. (see Nov. 20th post). In an editorial the Baltimore Sun denounced the governor’s letter as “odious” and “shocking,” an attempt “to bully” our environmental law clinic, and “to interfere with ongoing civil litigation” by taking “the side of polluters against those who are simply trying to enforce federal law.” A link to the Baltimore Sun editorial criticizing the Governor’s letter is HERE.

Last week it was revealed that Apple Corporation has hired an outside firm to audit environmental compliance by companies in its supply chain in China. On November 15 Apple representatives met in Beijing with a coalition of environmental groups who released reports in January and August 2011 criticizing environmental compliance by Apple’s Chinese suppliers. See blog post of September 5, 2011. Ma Jun, director of the Institute of Public and Environmental Affairs, which had released the previous reports, described Apple’s actions as “progress,” but “just the beginning.” Kathrin Hills & Joseph Menn, Apple Launches Audit of Chinese Suppliers, Financial Times, Nov. 17, 2011.

On November 15 the Chevron Corporation announced that it had contained the flow of oil leaking from the ocean floor where it had drilled a deep water appraisal well at its Frade project off the coast of Brazil 230 miles northeast of Rio de Janeiro. Brazil’s federal police have opened an investigation of Chevron in connection with the spill. Brazilian authorities are expressing increasing annoyance at what they characterize as Chevron’s lack of transparency concerning the oil spill. They have threatened Chevron executives with criminal prosecution if it is determined that they intentionally misled Brazilian authorities and they are insisting that Chevron pay compensation for natural resource damages. Simon Romero, Brazilian Officials Warn Chevron Over Offshore Spill, N.Y. Times, Nov. 19, 2011, at A8.

On November 18 the Intergovernmental Panel on Climate Change (IPCC) reported that some severe weather events already can be attributed to ongoing climate change. Ongoing weather anomalies include the worst drought in the Horn of Africa in 60 years, heavy snow in the United States, and severe flooding in Thailand. However, the IPCC agreed that it was premature to attribute more intense hurricanes to climate change. It predicted that extreme weather events will occur more frequently and with greater intensity even as human vulnerability to them will grow in the future. Justin Gillis, Panel Finds Climate Change Behind Some Extreme Weather, N.Y. Times, Nov. 19, 2011.

Last week a spate of investments were announced in large renewable energy projects around the world. On November 17 the World Bank announced that it would help fund a massive solar energy project to be built in Morroco’s desert. The Ouarzazate solar complex, which will be built southeast of Marrakesh, will have a capacity of 500 megawatts, enough to power 90,000 homes. Morocco plans to build five large solar energy complexes by 2020 with a total capacity of 2,000MW. Pilita Clark, Morocco Wins Green Light for Solar Plant, Financial Times, Nov. 18, 2011, at 6. General Electric agreed last week to help build a $100 million wind energy farm in Mongolia. The project is expected to meet 5% of Mongolia’s energy needs when it is completed in the second half of 2012. Kathrin Hills, GE Signs $100 Million Mongolia Wind Deal, Financial Times, Nov. 18, 2011, at 17. Fourteen foreign energy companies have asked the Spanish government for more than 100 million Euros in compensation for Spanish government’s March 2011 reductions in subsidies for solar energy. The compensation is being sought under the 1998 Energy Charter Treaty. Miles Johnson, Investors Seek Compensation for Cuts to Spain’s Solar Subsidy, Nov. 18, 2011, at 17.

This has been a busy week for me. On Tuesday I presented a paper “On Coal, Climate and Carp: Reconsidering the Common Law of Interstate Nuisance” at a Faculty Research Workshop at Georgetown. The paper focuses on three recent decisions involving efforts by states to use federal or state common law to control transboundary pollution, including North Carolina’s effort to control pollution from TVA’s coal-fired power plants, the American Electric Power climate change litigation, and efforts by Great Lake states to stop the spread of invasive species. The paper argues that the common law remains an important backstop to prod regulatory action to redress environmental problems that are newly emerging or long-neglected by regulators.

On November 17 I spoke on a panel on presidential review of rulemaking at the fall meeting of the American Bar Association’s Section on Administrative Law and Regulatory Pracrice. On the panel with me were former Bush White House Counsel and former Ambassador to the EU (recess appoinment) C. Boyden Gray, current OMB general counsel Boris Bershteyn, Brian Callanan from the office of Senator Rob Portman, and Alan Raul from Sidley & Austin. Boyden Gray took issue with my opening statement when I noted that if President Reagan had had directive authority over agencies, EPA would have been forced to abolish all limits on lead in gasoline. The White House had forced EPA to propose such a disastrous policy, but they ultimately backed down in the face of environmental opposition. Bershteyn had the best line of the day when he said that he was glad that OMB was being criticized for events that occurred during the Reagan administration. However, it was quite telling that Callanan argued that by vetoing the ozone rule, President Obama had conceded that a super cost-benefit mandate, which is not in the current Clean Air Act, should be adopted by enactment of Senator Portman’s proposed Regulatory Accountability Act (RAA). I argued that the RAA would paralyze efforts to protect public health and the environment by codifying the Toxic Substance Control Act’s “least cost” mandate that prevented the U.S. from banning asbestos, a substance that has now been banned by virtually all other developed countries.

On November 18 I attended a conference on regulatory takings at Georgetown cosponsored by Vermont Law School and the Georgetown University Law Center. Tom Merrill gave a great presentation on the way courts are interpreting the Supreme Court’s 1978 Penn Central decision. Gregory Stein from the University of Tennessee explained why the Supreme Court’s Palazzolo decision has not had much impact on takings decisions. Georgetown Dean Michael Treanor, whose student note in the Yale Law Journal has become a classic on the history of the takings clause, gave the keynote address explaining why the original understanding of the clause only required compensation for physical takings of property.

On Friday night November 18 Maryland’s Environmental Law Program held its 20th annual program winetasting party. Nearly 200 students, faculty, and alums attended the event which featured a vertical tasting of the wines of Chateau Pichon Lalande, some celebrated California cabernets from the 1970s, and the certifiably perfect 1982 Chateau Mouton Rothschild. This year’s “mystery wine,” tasted blind, was a pinotage from South Africa. None of the participants in the contest identified it correctly, but Delegate Jon Cardin did get the vintage (2009) correct. The event confirmed once again that wine truly is “nature’s thanks for preserving the earth.”

Tuesday, November 15, 2011

Keystone XL Decision Delayed, China Air Pollution Monitoring, EU to Pass U.S. as Oil Importer, Australian Carbon Tax (by Bob Percival)

On November 10 the Obama administration announced that it would delay a decision on whether or not to approve TransCanada’s Keystone XL pipeline project to transport heavy tar sands oil to the U.S. The delay will give the administration time to consider routes that skirt around the important Ogalala aquifer in Nebraska. It also should postpone the decision until after the 2012 presidential election, extricating President Obama from a “no-win” situation. Christi Parsons & Paul Richter, Decision on Pipeline Put Off Until 2013, Los Angeles Times, Nov. 11, 2011, at A10.

The latest chapter in the long-running controversy over the accuracy of air pollution monitoring in China occurred last week when Chinese authorities announced that 40 lucky people per week would be allowed to tour Beijing’s air quality monitoring center. Air pollution in Beijing has been particularly nasty this fall and the U.S. Embassy’s online air quality monitoring, made available online through an iPhone app and Twitter, reportedly has been embarrassing Chinese authorities. Last year a Wikileaks cable revealed that the Chinese government had privately asked the U.S. Embassy to stop posting its monitoring data online. Pan Shiyi, a Chinese real estate developer with 7 million followers of his blog, asked the Chinese public to vote on whether more stringent air pollution standards should be adopted. More than 30,000 of the 40,000 respondents voted “Yes”. Andrew Jacobs, Beijing Acts to Calm Anger Over Reporting of Air Pollution, N.Y. Times, Nov. 9, 2011.

Last week the International Energy Agency (IEA) released its annual report. It reported that global carbon dioxide emissions grew in 2010 at the “almost unprecedented” rate of 5.3% to 30.4 billion metric tons. James Herron, Energy Agency Warns Government to Take Action Against Global Warming, Wall St. J., Nov. 9, 2011. The IEA also forecast that in 2015 the EU will surpass the U.S. as the world’s largest importer of oil. This somewhat surprising prediction is a result of the dramatic increase in U.S. fuel economy standards and increased U.S. natural gas and oil production. The report also forecast that by 2020 China would overtake the EU as the world’s largest importer of oil. Global demand for oil is expected to grow from last year’s 87 million barrels a day to 99 million barrels per day by 2035. The IEA concluded that every additional $1 invested in fossil fuel production will cause $4.30 in environmental damage after 2020. Julia Werdigier, Europe’s Oil Imports Poised to Pass Level of U.S., N.Y. Times, Nov. 9, 2011.

On November 7 the Australian Parliament gave final approval to a carbon tax. Beginning in July 2012 the top 500 emitters of greenhouse gases will be required to pay a tax of approximately $24 for each ton of carbon they emit. Beginning in July 2015 an emissions trading program will be launched. The decision represents a huge victory for Australian Prime Minister Julia Gillard as well as a dramatic turnabout for a country that until late 2008 had been the only developed country other than the U.S. that had failed to ratify the Kyoto Protocol.

On November 9 the U.S. Department of Commerce opened an investigation of charges that China is unfairly dumping below cost solar panels on the market. A new trade group representing buyers and installers of solar panels was established this week to press the argument that any trade sanctions imposed on Chinese solar manufacturers will cost U.S. jobs. Due largely to increased Chinese exports, prices of solar panels have plunged from $3.30 per watt in 2008 to only $1 to $1.20 per watt today.

On Friday Nov. 11 I spoke at a conference on “CERCLA and the Future of Liability-Based Environmental Regulation” at Southwestern University Law School in Los Angeles. Professor Percival compared CERCLA with other countries’ programs for remediation of environmental contamination. The conference was terrific. It featured lots of veterans from the early history of CERCLA and the war stories we shared were absolutely fascinating. Southwestern has what Dean Bryant Garth accurately described as the best building of any law school - a 1929 art Deco former Bullocks department store on Wilshire Boulevard. I joined several of the speakers on a fabulous tour of the building that emphasized how the school has gone to great links to preserve its historic builgin. I spent Saturday in a cold and rainy Vancouver, Canada, before returning to D.C. on Sunday.

Saturday, November 5, 2011

China Bans Incandescents, EU Airline Carbon Trading Attacked, Oral Argument Set in Challenges to EPA Climate Regulations (by Bob Percival)

Last week China announced that it will ban the import and sale of 100-watt and higher incandescent light bulbs beginning on October 1, 2012. The ban will be extended to 60-watt bulbs on October 1, 2014 and to 15-watt and higher bulbs on October 1, 2016. With this move China joins the EU and the United States in phasing out these notoriously inefficient light bulbs that waste most of their energy giving off heat rather than light.

The U.S. Food and Drug Administration (FDA) has asked Chinese authorities for help in implementing the Food Safety Modernization Act. The law, which was enacted in January 2011, requires U.S. importers of food to verify through their suppliers the safety of their imports. The FDA is seeking greater information sharing with China and other countries that export food to the U.S. The U.S. actually exports more agricultural products to China than China exports to the U.S., but enforcement of Chinese food safety laws has been notoriously weak, as Li Tairan, director of food safety at China’s Ministry of Health confirmed at a food safety conference on November 2. Laurie Burkitt, FDA Seeks Beijing’s Help Over Food Safety, Wall St. J., Nov. 4, 2011, at A8.

Last week the governing council of the UN’s International Civil Aviation Organization (ICAO) urged the European Union to drop its plan to include airlines flying to or from EU countries in its cap-and-trade program for carbon emissions. A total of 26 countries, including the U.S., China, Russia, and India had lobbied for the declaration, which argues that the ICAO is the best forum for resolving such issues. EU Climate Commissioner Connie Hedegaard criticized these countries for focusing solely on what not to do to reduce GHG emissions from the airline sector. The EU regulations will go into effect on January 1, 2013. Meanwhile the U.S. House of Representatives’ vote to prohibit U.S. airlines from participating in the EU’s cap-and-trade program has received a lot of attention, but for now it stands virtually no chance of being adopted by the full Congress. A report issued by Bloomberg News Energy Finance estimates that the cost to the airlines of participating in the EU program would be less than one-quarter of one percent of revenue from the routes subject to it in 2012 and about one-half of one percent in 2020. Pilita Clark, Nations Step Up Fight Over Air Carbon Permits, Financial Times, Oct. 30, 2011.

On Nov. 2 the U.S. Court of Appeals for the D.C. Circuit announced that it will hear two days of oral argument on February 28 & 29, 2012 on the consolidated legal challenges to EPA’s regulations governing greenhouse gas (GHG) emissions. The panel hearing the case will be Judges Sentelle, Rogers, and Tatel. Judge Sentelle is a severe critic of environmental regulation, but Judges Rogers and Tatel are much more supportive. On November 3, I participated in a dinner of “Distinguished Environmental Advocates” at Bistro Bis in Washington, D.C. The dinner was sponsored by ABA’s Section on Environment, Energy & Resources and the Environmental Law Institute. George Frampton addressed the group and argued that the Fukushima Daiichi accident would not have a gret impact on the demand for nuclear power because the Chinese and Russian governments still are committed to building new nuclear power plants. I expressed disagreement with this view, noting that public opinion in Japan, Germany and China is now distinctly anti-nuclear due to the accident. At the dinner I asked several of the major figures in the environmental bar for their predictions concerning the fate of the legal challenges to EPA’s regulation of GHG emissions. Virtually everyone agreed that EPA’s endangerment finding would be upheld aby the D.C> Circuit. Many thought EPA would beat back all of the legal challenges to its regulation of GHG emissions. Surprinsgly, this group even included some prominent industry lawyers. However, a few others, including a prominent supporter of EPA, believed that EPA’s tailoring rule would be struck down.

I visited Goucher College on November 1 to give a lecture on the Law of the Sea to an environmental studies class. It is really heartening to see how many colleges and universities are expanding their environmental offerings at the undergraduate level.

Sunday, October 30, 2011

9th Circuit Rejects Kiobel, Setback for Cape Wind, Nebraska Special Session on Pipeline, Brazil Dam Protest, "Hot Spots" in Japan (by Bob Percival)

Last week seven of eleven judges from the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, joined the Seventh and D.C. Circuits in rejecting the Second Circuit’s Kiobel decision holding that corporations cannot be held liable for violating the law of nations, the predicate for liability under the Alien Tort Statute. A copy of the court’s decision is available online at: As discussed in the October 23, 2011 blog post, the U.S. Supreme Court has agreed to review the Kiobel decision and likely will decide the case by the end of June 2012. The Ninth Circuit’s decision in Sarei v. Rio Tinto, revives a lawsuit filed by citizens of Papua, New Guinea, alleging that the Rio Tinto mining corporation purposefully aided and abtetted the New Guinean government in committing genocide and crimes against humanity. The Ninth Circuit easily could have deferred issuing a decision until after the U.S. Supreme Court decides Kiobel, but the judges likely wanted to make the Court aware of their views before it decides Kiobel.

On October 28 the U.S. Court of Appeals for the D.C. Circuit ruled that the Federal Aviation Administration (FAA) had failed to adequately consider the impact on aircraft safety of the Cape Wind project, the first commercial-size offshore wind project in the U.S. Plaintiffs in the case included the Alliance to Protect Nantucket Sound and the City of Barnstable, Massachusetts. The decision is expected to delay the start of construction work on the project.

Republican Governor Dave Heineman has called Nebraska’s legislature back into special session, beginning on Tuesday, to consider legislation to block or to alter the route of the Keystone XL pipeline. The pipeline is designed to carry oil from Canada’s tar sands fields to the United States. Heineman has objected to the project out of fears that it may endangered the quality of groundwater in Nebraska’s Ogallala Aquifer.

Japanese authorities last week confirmed that they had discovered far-flung “hot spots” of radioactive fallout from the accident at the Fukushima Daiichi nuclear power plant. The “hot spots” were found in Kashiwa, 125 miles from the damaged reactor and just 18 miles northeast of Tokyo. Officials attribute the contamination to cesium-laced rain that fell in the area shortly after the accident. Yuka Hayashi, Tokyo Cite Rain for “Hot Spot,” Wall St. Journal, Oct. 25, 2011, at A15. Scientists now estimate that the amount of cesium-137 released in the Japanese accident was 42% of the amount released in Chernobyl in 1986 and that 79% of it drifted over the Pacific Ocean while 19% ended up on Japanese land and 2% in other countries. A. Stohl, et al., Xenon-133 and Caesium-137 Releases into the Atmosphere from the Fukushima Dai-ichi Nuclear Power Plant: Determination of the Source Term, Atmospheric Dispersion, and Deposition, 11 Atmos. Chem. Phy. Discussion 28319 (2011).

Last week presidential candidate Mitt Romney appeared to backtrack in his views on climate change. “My view is that we don’t know what’s causing climate change on this planet,” Romney said, contradicting his statement earlier this year that humans contribute to climate change. Romney stated that it was not wise to spend “trillions and trillions of dollars to try to reduce CO2 emissions,” despite his support as governor of Massachusetts for a nine-state cap-and-trade agreement. Jonathan Wisman, Romney Rivals See Flip-Flop, Wall St. Journal, Oct. 29-30, 2011, at A4.

Sunday, October 23, 2011

U.S. Supreme Court to Hear ATS Case, Chinese Solar Subsidies Challenged, Bolivian Amazon Road Stopped, Pipeline Safety Bill Advances (by Bob Percival)

On Monday October 17 the U.S. Supreme Court announced that it will review a decision holding that corporations cannot be held liable under the Alien Tort Statute (ATS) because the “law of nations” does not apply to their conduct. The decision the Court agreed to review is a September 2010 judgment by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 10-1491 (see blog post of Oct. 4, 2010). The decision was by a split (2-1) panel of the Second Circuit with Judge Cabranes writing the majority opinion and Judge Leval writing a vigorous dissent. Last summer two other U.S. Courts of Appeal expressly rejected the holding in Kiobel - the D.C. Circuit in a case involving Indonesians challenging alleged human rights abuses by ExxonMobil (see blog posts of July 11, 2011) and the Seventh Circuit in a lawsuit against Bridgestone Firestone Tire (see blog post of July 17, 2011). The split in the circuits virtually guaranteed that the Court would agree to hear the case. Although the issue is one of statutory interpretation - the meaning of the ATS’s authorization of suits challenging conduct in violation of the “law of nations” -- it essentially will require the Court to address the scope of international law. The case is likely to be argued next spring and decided by the end of June 2012.

On October 19 a coalition of seven American companies filed a complaint with the U.S. Department of Commerce and the International Trade Commission arguing that the Chinese government has unfairly subsidized Chinese companies making solar panels. The U.S. companies are asking for the agencies to impose tariffs of more than 100% on solar panels imported from China. Solar companies based in the U.S. have been laying off workers due to competition from Chinese producers who have driven down the price of such panels from $3.30 per watt in late 2008 to between $1.00 and $1.20 per watt today. China has sold more than $1.6 billion in solar panels to the U.S. in the first eight months of 2011. Environmentalists are concerned that the imposition of tariffs could cripple the diffusion of solar technology. The Chinese ministry of commerce described the complaint as creating “a lose-lose situation” that “will cause an adverse impact on the bilateral trade interests of the two counties.” Keith Bradsher, China Charges Protectionism in Call for Solar Panel Tariffs, N.Y. Times, Oct. 22, 2011, at B6.

Last week President Evo Morales of Bolivia responded to protests by indigenous groups by suddenly canceling the construction of a highway through an ecologically sensitive region of the Amazon. The decision was made after indigenous groups completed a two-month march over hundreds of miles to the capital of La Paz to demand that the project be halted. The highway was to be built by a Brazilian construction firm. The indigenous groups feared that its construction would facilitate the expansion of coca leaf farming into the Isiboro Secure National Park, spawning increased deforestation. John Lyons, Bolivian Chief Scraps Road, Wall St. Journal, Oct. 22-23, 2011, at A12.

On October 17 the U.S. Senate unanimously approved a bill updating pipeline safety regulations. A similar bill has been approved by a House committee and awaits a vote on the House floor. The legislation is a response to the September 9, 2010 pipeline explosion in San Bruno, California. It will require more testing of pipelines, increase the number of pipeline inspectors and increase fines for major violations of pipeline regulations to as much as $2.5 million. Ryan Tracy, Pipeline-Safety Measure Passes Senate Unanimously, Wall St. J, Oct. 18, 2011, at A6. In an effort to win approval of the Keystone XL pipeline, TransCanada Corporation agreed last week to post a $100 million bond to ensure that funds would be available to respond to future spills. The company also agreed to build a concrete containment ditch to surround the pipeline when it crosses through environmentally sensitive areas of Nebraska. These and other concessions are designed to prevent the Nebraska legislature from forcing significant changes in the pipeline’s proposed route.

Last week Andarko Petroleum agreed to pay BP $4 billion to cover its share of liability for the Deepwater Horizon oil spill. Andarko owned a 25% stake in the project. Andarko agreed to drop its claim of gross negligence against BP and to transfer its stake in the project back to the British company. The money will be placed in BP’s $20 billion compensation fund for victims of the spill. Last week BP received preliminary approval to drill its first new well in the Gulf since the April 2010 spill. U.S. regulators also announced last week that they will inspect the an offshore oil drilling rig built in China that Repsol YPF SA, a Spanish company, plans to deploy in Cuban waters near the coast of Florida. Russell Gold, U.S. Will Inspect Cuban Rig, Wall St. Journal, Oct. 17, 2011, at A3.

Last week I visited my alma mater Macalester College in St. Paul, Minnesota. On Thursday October 20 I had dinner with faculty from the school’s interdisciplinary Environmental Studies department. On October 21 I gave guest lectures to a seminar on Climate and Society taught by Professor Louisa Bradtmiller and to Professor Katie Pratt’s Environmental Politics and Policy class. I had a wonderful lunch with students interested in environmental law followed by individual meetings with the school’s Environmental Studies faculty and the co-directors of the school’s Legal Studies program. It is so encouraging to see how strong student interest in environmental law is at the undergraduate level.

Sunday, October 16, 2011

Australian Carbon Tax, Ozone Lawsuit, Uganda Oil Scandal, 168th House Anti-Environment Vote, ABA SEER Conference (by Bob Percival)

On October 12 the lower house of the Australian Parliament approved by a narrow 2-vote margin (74-72) a carbon tax to combat climate change. Approval of the tax, which is expected to become law after being approval by a larger margin in the upper house of Parliament, represents a significant victory for Prime Minister Julia Gallard’s Labor government. Under the legislation more than 400 of Australia’s largest emitters of greenhouse gases (GHGs) will pay a tax of A$23 ($23.80 US) per ton of GHG emissions beginning in July 2012. This is a particularly significant development for global environmental law because Australia was the last developed country to approve the Kyoto Protocol except for the U.S., which remains the sole holdout. Due to its economy’s heavy dependence of fossil fuel industries, Australia refused to ratify the Kyoto Protocol until 2008. Peter Smith & Pilita Clark, Gillard Scores Victory as MPs Support Carbon Tax, Financial Times, Oct. 12, 2011.

On October 11 five national environmental and health groups in the U.S. filed suit to challenge the national ambient air quality standard (NAAQS) for ozone initially promulgated by the Bush administration and reinstated by the Obama administration after it decided for now not to tighten the standard. The ozone NAAQS sets the permissible concentration of the pollutant at .075 parts per million, despite the unanimous recommendation by EPA’s Clean Air Scientific Advisory Committee that it be set between .060 and .070 ppm. John M. Broder, Groups Sue After EPA Fails to Shift Ozone Rules, N.Y. Times, Oct. 12, 2011.

Last week three officials of the government of Uganda resigned due to an investigation of alleged bribery by Tullow Oil, a British company seeking to develop the country’s estimated 2.5 billion barrel oil deposits that were discovered in 2006. The officials who resigned included foreign minister Sam Kutesa, the governing party’s parliamentary whip and a lower level labor minister. Tullow had previously caused controversy by proposing to drill for oil in protected areas of the country. The Ugandan Parliament voted to impose a temporary moratorium on new oil development projects while the bribery allegations, which Tullow vehemently denies, are investigated.

Congressman Henry Waxman revealed last week that the U.S. House of Representatives has voted 168 times this year against the environment, making it “the most anti-environmental Congress in history.” Fortunately the Democratic-controlled U.S. Senate has prevented the measures approved by the House, many of which would strip EPA of authority to prevent air or water pollution, from becoming law. On October 14 the House approved a measure to block EPA from regulating coal ash as a hazardous waste. The bill would leave the problem largely to state regulation. A total of 37 Democrats joined Republicans in supporting the bill, which was approved by a vote of 267 to 144.

After class on October 13 I flew to Indianapolis in order to attend the opening of the 19th Annual Fall Meeting of the American Bar Association’s Section on Environment, Energy & Resources. More than 300 people attended the event. I was the opening keynote speaker and I spoke about “The Global Transformation of Environmental Law.” An abstract of my remarks is available online at: After my presentation I attended a session on the impact of the Fukushima Daiichi nuclear accident on regulation of nuclear power and a session on the Supreme Court’s American Electric Power v. Connecticut decision before having to return to Washington.

As a member of Maryland’s law school appointments committee I spent October 14 and 15 interviewing faculty candidates at the annual American Association of Law Schools (AALS) Faculty Recruitment Conference in Washington, D.C. We interviewed more than 30 candidates over the two days, an exhausting process, but one that was not without its intellectual rewards. After we finished on Saturday I was able to attend the final half hour of an open house for my dear friend Zhang Jingjing, her husband, and new baby, at the home of her in-laws in Garrett Park, Maryland. Jingjing, who has been called “the Erin Brockovich of China,” is currently the Deputy Director of PILnet: Global Network for Public Interest Law in Beijing. Her daughter Meghan, whose Chinese name means “little flower” is truly adorable. Jingjing will be returning to China on October 25.

Tuesday, October 11, 2011

EU Airline Carbon Cap Supported, Chiu Symposium, Koh Lecture, Keystone XL EIS, Arctic Ozone Hole & China Course (by Bob Percival)

On October 6 Juliane Kokott, the European Court of Justice Advocate General, advised the Court that it should reject a legal challenge by non-EU airlines to their upcoming inclusion in the EU’s cap-and-trade program for carbon emissions. Ms. Kokott opined that: "The inclusion in the EU emissions trading scheme of flights of all airlines from and to European airports is compatible with the principle of fair and equal opportunity laid down in the Open Skies Agreement. Indeed it is precisely that inclusion that establishes equality of opportunity in competition, as airlines holding the nationality of a third country would otherwise obtain an unjustified competitive advantage over their European competitors if the EU legislature had excluded them from the EU emissions trading scheme." Her opinion is likely to carry considerable weight with the Court, which is expected to rule on the challenge in the near future.

On October 5 & 6 the University of Maryland School of Law hosted a terrific symposium in honor of my late colleague Hungdah Chiu, one of the top East Asian legal scholars who played a major role in helping Taiwan improve relations with the PRC. Professor Jerry Cohen of NYU, the world’s leading China law scholar, delivered the opening address. The Thursday keynote on “Professor Hungdah Chiu, Taiwan and Cross-Strait Relations” was presented by Su Chi, former secretary general of Taiwan’s National Security Council. He reviewed the history of relations between Taiwan and the PRC and the important role that Professor Chiu played in shaping them. Su argued that Taiwan is no longer the “tail wagging two dogs” (the U.S. and the PRC).

In a lecture at Maryland on October 6 State Department Legal Adviser Harold Koh delivered a strong defense of the Obama administration’s policies. Koh’s lecture on “International Law in a Post 9/11 World” was the Pearl Laurence I. and Lloyd M. Gerber Memorial Lecture given annually at Maryland. Koh disputed the notion that the Obama administration has simply continued the Bush administration’s policies to combat terrorism. He articulated six ways in which Obama’s policies are significantly different from Bush’s. These include that the Obama administration has (1) placed greater reliance on legislation rather than asserting inherent constitutional authority, (2) uses International law to informs its actions, (3) has absolutely banned torture and insisted on humane treatment for prisoners, (4) has employed a mixed paradigm that observes both the laws of war and enforcement of domestic law, (5) is fighting Al-Quaeda and the Taliban rather than a “global war on terror,” and (6) that the Obama administration employs a fact-based, rather than a label-based approach, in determining legitimate targets. Koh explained that while he formerly focused on learning the names of his students, he now must concentrate on knowing the names of terrorists.

Last week it was revealed that Cardno Entrix, a Houston-based environmental contractor hired by the U.S. State Department to help the agency prepare the environmental impact statement (EIS) for the proposed Keystone XL pipeline project, has close ties to TransCanada, the company proposing to build the pipeline. TransCanada is a major client of Cardno Entrix and it recommended that the State Department hire the consultant, who also is playing a major role in organizing public hearings on the project. Environmentalists suggested that this relationship undercuts the credibility of the EIS, while State Department officials defended it. Elisabeth Rosenthal and Dan Frosch, Pipeline Review Is Faced With Question of Conflict, N.Y. Times, Oct. 8, 2011, at A11.

Ozone holes have been common over the Antarctic, but last week the journal Nature reported that the first significant ozone hole had opened up over Arctic regions last winter. The hole, which reached as far south as Russia and Mongolia last February, surprised scientists who attribute it to releases of chlorofluorocarbons (CFCs) during the twentieth century. The Montreal Protocol that phases out such ozone-depleting substances on a global basis has now been signed by 191 countries and is considered the most successful international treaty to protect the environment. The Nature article, Manney, et al., Unprecedented Arctic Ozone Loss in 2011, is available online at:

Like millions of other uses of Apple products, I was saddened by the death of Steve Jobs last week. As someone who has regularly attended the annual Macworld conference, I had watched Jobs deliver several of his famous keynote addresses, including the introduction of iTunes in 2001, the iPhone in 2007 and the conference where Jobs gave free copies of the Keynote presentation program to everyone attending his keynote address. Under Jobs’ leadership Apple made so many insanely great products that I often wondered whether the company could have rescued the auto industry by making an iCar. There is no other corporate leader that can fill Jobs’ shoes and his passing leaves a great void.

Last week I agreed to teach a summer course on Comparative U.S./Chinese Environmental Law from July 23-August 4 at Vermont Law School. The course is likely to be followed by a class field trip to China. On October 10 I hosted an informational session for Maryland’s upcoming student trip to China during spring break from March 8-18, 2012. There is still space available on the trip and I am delighted that a few of my Georgetown students have indicated that they may join us.

Tuesday, October 4, 2011

Myanmar Halts Dam, Girl Scouts Limit Palm Oil Use, Geoengineering Push Urged, VJEL China Symposium (by Bob Percival)

Perhaps the most stunning news of the last week was the decision by President Thein Sein of Myanmar to cancel the construction of the $3.6 billion Myitsone dam project on the Irrawaddy River in the northern part of the country. The cancellation occurred after vigorous environmental opposition to the dam endorsed by 1991 Nobel Peace Prize winner Aung San Suu Kyi, who recently emerged after seven years of house arrest imposed by the country’s former military government. Myanmar residents questioned why the country was planning to flood an area the size of SIngapore and cause immense environmental damage, as documented in an environmental impact assessment, for a project from which 90% of the electrical generation was to be exported to China. The cancellation apparently has angered Chinese officials, including Lu Qizhou, president of the China Power Investment Corporation that was constructing the 6,000 MW project.

Last week the Girl Scouts of America announced that they will move to reduce the use of palm oil in Girl Scout cookies in response to an environmental campaign launched by two teenager scouts from Michigan - Madison Vorva and Rhiannon Tomtishen. The campaign was launched after revelations that palm oil plantations in Southeast Asia had been contributing to massive deforestation that contributes to climate change. The Girl Scouts announced that they have directed their suppliers to use as little palm oil as possible in Thin Mints, Samoas, and Trefoils and to switch to sustainable palm oil by 2015. Julie Jargon, Girl Scouts Move to Limit Palm Oil in Cookies, Wall St. J., Sept. 28, 2011.

The Bipartisan Policy Center’s 18-member Task Force on Climate Remediation Research has endorsed a crash research program into geoengineering as a means to protect the planet from climate change. Geoengineering includes proposals to scatter particles in the upper atmosphere to reflect sunlight away. A copy of the report is available online at:

An independent panel in Japan revealed on September 30 that the country’s Nuclear and Industrial Safety Agency had sought to enlist employees of the country’s nuclear power plants to attend public forums and voice support for nuclear power. Mitsuru Ore, Japan Nuclear Agency Adds to Mistrust, Wall St. J., Oct. 1-2, 2012, at A11. This tactic seems to mimic that employed by the American Petroleum Institute in organizing “energy citizen” rallies enlisting employees of fossil fuel power plants to exaggerate opposition to environmental regulation, except for the additional scandal of a government agency being involved in promoting the rallies. Another panel advising the Japanese government concluded that it will be difficult to ensure the financial stability of the Tokyo Electric Power Company without allowing it to restart some of its undamaged nuclear reactors. Mitsuru Ore & Kana Inagaki, Tepco Reactor Restarts Are Push, Wall St. J., Oct. 4, 2011 at B5.

This week I received a copy of the latest issue of the Vermont Journal of Environmental Law with articles from Vermont Law School’s March 2011 symposium on “China’s Environmental Governance.” The articles include John Nagle’s “How Much Should China Pollute?,” Jason Czarneski’s “Climate Policy & U.S. China Relations,” Adam Moser’s “Pragmatism Not Dogmatism: The Inconvenient Need for Border Asjustment Tariffs Based on What Is Known About Climate Change, Trade and China,” Jennifer Turner’s “Choke Point China: Confronting Water Scarcity and Energy Demand in the World’s Largest Economy,” and my article on “China’s ‘Green Leap Forward’ Toward Global Environmental Leadership.” The articles are not yet posted online, but hopefully the VJEL will soon update its website.

Monday, September 26, 2011

Court Lifts Injunction Barring Ecuador Collection of Chevron Judgment, Chinese Protests, Nuclear Power & TRAIN Act (by Bob Percival)

The long-running dispute between residents of Ecuador and the Chevron Corporation over the cleanup of oil pollution from drilling decades ago in Ecuador took a sudden turn last week. On Monday September 19 the U.S. Court of Appeals for the Second Circuit issued an order vacating a federal district court’s injunction barring enforcement of an Ecuadoran trial court’s $18 billion judgment against Chevron. The order was issued after the three judges hearing an appeal of injunction (Rosemary S. Pooler, Richard C. Wesley, and Gerald E. Lynch) expressed extreme skepticism over its legality at oral argument on September 16. The injunction had been issued by federal district judge Lewis Kaplan in March in response to a RICO lawsuit by Chevron accusing the plaintiffs of trying to shake down the company through a fraudulent conspiracy. The Second Circuit denied the plaintiffs’ request for a writ of mandamus removing Judge Kaplan from the case for bias, but it granted the plaintiffs’ motion for an order imposing a stay to prevent Judge Kaplan from proceeding with a November trial as a prelude to making the injunction permanent. The court indicated that it will issue an opinion explaining its order in due course.

Plaintiffs’ counsel assured the court at oral argument that they will not seek to enforce the Ecuadoran judgment until after review of it has been completed by an appellate court in Ecuador, which is expected to take several months. Thus the main impact of the court’s order is to shift the focus of the litigation for now back to the Ecuadoran courts. Some elements of the judgment are highly questionable, particularly the provision that what initially was an $8.6 billion judgment would double in size if Chevron did not immediately apologize to the people of Ecuador for its actions. Thus, if the Ecuadoran appellate courts are fair they should dramatically reduce the size of the judgment. But Chevron’s claim that the judgment was a product of fraud seems far-fetched. This is a case that should have been settled long ago, but the level of animosity between the parties is so high that this seems most unlikely at this point. Chevron (and its predecessor in interest Texaco) could have had this case decided by a U.S. federal court, which is where it initially was filed by the plaintiffs in 1993, but the company persuaded the U.S. court that Ecuador was a more convenient forum. For the last year or so Chevron’s legal strategy seems to have been to bleed the plaintiffs dry by filing actions in new venues including the Permanent Court of Arbitration in the Hague and several U.S. courts in aid of discovery on its fraud allegations. However, when the plaintiffs obtained financing from several hedge funds, the playing field was leveled so that it is now a battle between well-heeled U.S. law firms with Gibson, Dunn representing Chevron and Patton Boggs representing the Ecuadoran plaintiffs. Stay tuned, but do not expect a quick resolution of this case.

Four days of vehement protests by Chinese citizens about air and water pollution from a solar panel factory owned by the Zhejiang JinkoSolar Company resulted in the Chinese government temporarily shutting down production at the plant. Residents blame the plant, which is located in Haining city in eastern China, for an unusual number of cancer deaths in the area.

New York authorities have arrested 12 people in Chinatown on misdemeanor charges for illegally importing a rat poison that is 60 times more potent than the level considered safe under U.S. pesticide regulations. The pesticide, which contains the chemical brodifacoum, apparently was smuggled into the U.S. from China. U.S. EPA officials expressed particular concern about the impact of the illegal rat poison on young children. William K. Rashbaum, 12 Held in Sale of Pest Poisons, One 60 Times as Potent as the Legal Limit, N.Y. Times, Sept. 20, 2011, at A20.

Siemens, the largest energy conglomerate in Europe, announced that it will stop building nuclear powerplants anywhere in the world. The company had built 17 nuclear power plants in Germany, but it is now concentrating on its renewable energy division, which has experienced the fastest growth of any of its lines of business. Judy Dempsey, Siemens Ends Building of Nuclear Power Plants, N.Y. Times, Sept. 20, 2011, at B2. Russian authorities have decided to extend the life of the country’s nuclear power plants to 45 years from 30 years. These include 11 Chernobyl-era nuclear (RMBK) reactors designed to operate without containment vessels. RMBKs have been retired in Ukraine and Lithuania, but Russia has refused to bow to international pressure to shut down its aging reactors. David Crawford & Rebecca Smith, Russia to Extend Life of Aging Reactors, Wall St. J., Sept. 22, 2011, at A15.

On Friday September 23, the U.S. House of Representatives by a vote of 249-169 approved the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, which is designed to halt EPA Clean Air Act regulations. Fewer than 20 Democrats supported the legislation, which President Obama has threatened to veto. The TRAIN Act would block EPA rules from taking effect while establishing an interagency panel chaired by the Commerce Department to examine the impact of EPA rules on the economy. The legislation is not expected to pass the U.S. Senate.

During down time while in Boston for a family wedding last weekend, I attended the opening session of a Conference on the Constitutional Convention at Harvard Law School. Harvard law professor Larry Lessig and Tea Party Patriot founder Mark Meckler argued at the opening that both fed up conservatives and liberals should support using Article V of the Constitution to call a new convention to rewrite the world's oldest written constitution. I think it is a really bad idea, particularly at a time of extreme political polarization, to put our founding charter up for grabs. My fears were compounded when Texas law professor Sandy Levinson proposed that delegates to such a constitutional convention (that Congress is supposed to call after petitioned by two-thirds of the states) should be selected by lottery.

Sunday, September 18, 2011

New BP Spill Report, Shanghai EPB Suspends Lead Plants, Japan Nuclear Regulations, Sotomayor at Maryland Name Launch (by Bob Percival)

On September 14 the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the U.S. Coast Guard released their final joint report on last year’s oil spill in the Gulf of Mexico. The report was highly critical of BP and its contractors Halliburton and Transocean, while finding that BP bore ultimate responsibility for the spill. Links to each part of the report are available at:

On Friday the Shanghai Environmental Protection Board (EPB) ordered operations suspended at two battery manufacturing plants due to the discovery of elevated lead levels in children living nearby. The action was taken after a microblogging campaign by parents of children found to have elevated levels of lead when given health tests at the start of the school year. It was reported that 12 of 25 children found to have elevated lead levels were hospitalized. The levels ranged up to 50 micrograms per deciliter, five times the 10 microgram/dl level of medical concern recognized by health authorities in both the U.S. and China. The plants, which are located in suburban Shanghai near the Pudong International Airport, include one owned by U.S.-based Johnson Controls Inc. A company spokesperson noted that Johnson’s emissions of lead are one-seventh the relevant standard and its wastewater emissions of lead are only one-tenth permissible limits. Johnson’s Shanghai plant is 13 years old and was acquired from another company six years ago. Johnson recently announced that it would build a new $100 million battery plant in China. James T. Areddy, Shanghai Shuts Plants in Lead Probe, Wall St. J., September 17, 2011, at A10. In 1990 the U.S. Supreme Court held that a Johnson Controls’ policy barring women of child-bearing age from positions where they would be exposed to lead from battery manufacturing constituted unlawful sex discrimination. In August China suspended operation of companies that mine and produce rare earth metals in order to conduct a three-month review of their environmental practices. Some suspect that this move, which has sent global prices of compact fluorescent light bulbs soaring, may be motivated by a desire to deflect complaints of protectionism. Keith Bradsher, China Consolidates Grip on Rare Earths, N.Y. Times, Sept. 16, 2011, at B1.

Japan officials are drafting new regulations to govern operation of the country’s nuclear power plants in the wake of the March 2011 tsunami and nuclear accident at the Fukushima Daiichi power complex. Kojiro Irikura, who is chairing the panel drafting regulations for the the country’s Nuclear Safety Commission, stated last week that all plants will have to be able to withstand a 9.0 earthquake and 15-meter tsunami. Only 11 of Japan’s 54 nuclear reactors are currently operating, but federal authorities are trying to encourage the restart of some of the plants. Irikura believes that previous safety guidelines were too lenient because they focused on most likely events rather than worst case scenarios. Chester Dawson, Big Japan Quakes Still a risk, Wall St. J., Sept. 16, 2011, R 10.

Industry efforts to make federal regulations a scapegoat for the sluggish economy continued this week when U.S. Speaker of the House John Boehner told the Economic Club of Washington that “219 new rules” were pending that each would cost the U.S. economy at least $100 million per year. After further investigation Washington Post Fact Checker Glenn Kessler discovered that a significant portion of these “rules” are simply agency actions to transfer federal funds to recipients, many involve rules that generate benefits greatly in excess of their projected costs, and others involve actions already completed or that are not likely to be completed in the near future. As a result Kessler awarded “three Pinnochios” to Boehner. Glenn Kessler, John Boehner’s Misfire on Pending Federal Regulations, Sept. 16, 2011.

On Friday Justice Sonia Sotomayor came to the University of Maryland School of Law to participate in ceremonies marking the launch of its new name as the University of Maryland Francis King Carey School of Law. The new name honors the school’s 1880 graduate whose decendants are responsible for the W.P. Carey Foundation’s $30 million gift to the school. Sotomayor was both warm and eloquent in responding to questions from both Maryland law students and high school students.

Sunday, September 11, 2011

Tenth Anniversary of 9/11, NRC Allows Withdrawal of Yucca Mt. Application, More Fallout from Japanese Nuclear Accident (by Bob Percival)

Sunday September 11 marked the 10th anniversary of the 9/11 terrorist attacks in New York City, Washington, D.C. and Pennsylvania. I remember leaving my home in Washington, D.C. on the morning of September 11, 2001 for the trip to Baltimore and feeling exhilarated by what a spectacularly beautiful day it was. I was on the telephone from my car to a financial services company in New York City when the news broke about the first plane to hit the World Trade Center. I continued to drive to Baltimore and eventually was able to reach my wife who was working in an elementary school on Capitol Hill. She reported that they could see the smoke rising from the Pentagon where another plane had crashed. When I reached Baltimore I called her parents because it was difficult for anyone to make contact by mobile phones given circuit overload.

Two events that occurred the day before and the day after 9/11 remain particularly striking to me. On Monday July 10, 2001 I was a guest speaker at the annual conference of the National Association of Administrative Law Judges in Rehoboth Beach, Delaware. My talk was on the history of environmental risk regulation and I remember noting that two of the concerns that A cartoon published the weekend before depicted someone’s car being hit by a shark talking on a cellphone. While driving back to Baltimore after my morning presentation, I listened in my car to C-Span Radio which broadcast a presentation from the National Press Club by Delaware Senator Joe Biden. He was criticizing the Bush administration for its decision to pursue a missile defense shield for the U.S. Biden argued that future threats facing America were unlikely to include nuclear missiles, but instead would feature unconventional attacks by terrorists, including perhaps suitcase nuclear bombs.

The second memory was that I was scheduled to host a delegation of environmental law professors from Iran who were going to speak at a faculty lunch at Maryland day after 9/11. In May 2001 I had joined Bern Johnson from E-Law International and Richard Lazarus from Georgetown on a trip to Iran to present a week-long environmental law workshop at the University of Tehran. The trip was sponsored by a group called Search for Common Ground. On that trip we met many inspiring individuals from the public interest movement in Iran which was struggling mightily against an oppressive government. I subsequently agreed to serve on the Advisory Board of the University of Tehran’s impressive Journal of Environmental Research. The five-person delegation from Iran was at Georgetown on 9/11 and we agreed to continue with our scheduled program at Maryland the following day. During the program I showed the faculty a film I had made about our workshop that included lots of scenes of daily life in Iran. The five Iranian environmental law professors participated in a panel discussion that touched on the events of the previous day, with the Iranians questioning why their government was immediately considered a suspect. The Iranians reported that their country was in mourning for the victims of the terrorist attacks and that the Mayor of Tehran had sent his condolences to Mayor Giuliani. The group visited my Environmental Law class that day where they discussed their efforts to upgrade Iran’s environmental laws.

I regret that subsequent events have made it impossible for me to continue regular contact with the inspiring public interest community in Iran even though my name is still on the list of advisors to the Journal of Environmental Research, which I receive regularly and read with interest. Prior to 9/11 the Bush administration had tried to justify its abrupt March 2001 about-face on controlling emissions of greenhouse gases by arguing that the cost would wreck the U.S. economy. Yet after 9/11 it spent far more money on the “war on terror” without producing the forecast economic damage (the severe 2008 global recession was spawned by subsequent events). An article in today’s New York Times estimates that the cost of the 9/11 attacks to the U.S. has been $3.3 trillion when one takes into account the physical and economic damage of the attacks ($55 billion and $123 billion, respectively), the cost of increased homeland security ($589 billion), the cost of wars in Iraq and Afghanistan ($1.649 trillion plus $277 in future war funding through 2016 and $589 billion for the future cost of caring for veterans). Amanda Cox, A 9/11 Tally: $3.3 Trillion, N.Y. Times, Sept. 11, 2011, at 13 (special section). For an explanation of how security barriers have become more ecologically conscious, see Henry Fountain, The Age of the Eco-Citadel, N.Y. Times, Sept. 11, 2011, at 23 (“The Reckoning” special section).

Last week the U.S. Nuclear Regulatory Commission (NRC) split 2-2 (with one recusal due to a perceived conflict of interest) in ruling on a motion to deny the Obama administration’s request to withdraw the Department of Energy’s application to site a repository of high-level radioactive waste at Yucca Mountain, Nevada. As a result of this vote, the application will be withdrawn. Ryan TRacy, Regulator’s Vote Dims Prospects for Yucca Project, Wall St. J., Sept. 10, 2011.

Yoshio Hachiro, the new Japanese minister for trade and industry, was forced to resign last week as a result of statements he made about the Fukushima Daiichi nuclear accident. Last Thursday he created a furor by referring to cities in the exclusion zone around the plant as “dead towns.” Later that day he exclaimed “look out, radiation!” while pretending to wipe contamination off his protective clothing on a reporter after returning from a trip to the plant. Martin Fackler, Japense Official Resigns Over Radiation Joke, N.Y. TImes, Sept. 9, 2011.

A bit of good news: the adult smoking rate in the United States fell last year. Only 19.3% of adults in the U.S. smoked in 2010. This is a decrease from the 21% who reportedly smoking five years earlier in 2005.

Monday, September 5, 2011

Obama Blocks Ozone Rule, Chinese Groups Criticize Apple, Nuclear Update, Cheney's Memoir, Expanded Lacey Act (by Bob Percival)

After fierce lobbying from industry groups, President Obama announced on Friday September 2 that he had directed EPA Administrator Lisa Jackson to withdraw a proposal to tighten the national air quality standard for ozone. President Obama cited “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover” ( In a memo directing EPA to reconsider the rule, OMB’s Cass Sunstein noted that EPA could consider a new standard in two years and that other recent rules also will reduce ozone pollution (which presumably would reduce the cost of meeting a tighter standard). Sunstein’s letter is available online at:

The administration’s decision leaves in place the 2008 ozone standard (0.075 ppm over 8 hours) that the Bush administration had promulgated over the unanimous objections of EPA’s Clean Air Scientific Advisory Committee (CASAC). CASAC had recommended that the standard be set within a range from 0.060 to 0.070 ppm. The best that could be said for Obama’s decision is that he is being honest about the reason for the action, unlike his predecessor who frequently directed EPA in secret to weaken regulatory decisions without publicly disclosing the real reasons. And the Obama administration did pledge to complete a new review of the ozone standard by 2013. But it sets a terrible precedent by buying into industry scapegoating of environmental regulations for economic problems, lending credibility to the “now is not the time” argument that always is used to oppose new environmental laws or regulations. In 1990 when the spectacularly successful 1990 Clean Air Act Amendments were about to be adopted by Congress, industry opponents assembled a group of Nobel Prize-winning economists who argued that it would seriously harm the economy, an argument repeated in 1997 when EPA tightened air quality standards. Both predictions proved dead wrong, see Motoko Rich & John Broder, A Debate Arises on Job Creation v. Environmental Regulation, N.Y. Times, Sept. 5, 2011, at B1, but President Obama has now caved to similar pressure, which will make it harder to explain why other EPA regulatory actions also should not be put on hold.

Of course the “now is not the time” argument is remarkably versatile and is employed even in times of robust economic growth when it is argued that “now is not the time” because any new regulation will kill the robust growth. Actually the ozone rule is particularly ill-suited as a target for this argument because it would take many years to implement since states first have to change their implementation plans, obtain EPA approval, and then issue permits. Describing America’s polluting coal, oil and chemical industries as “masters of the art” of “economic scare tactics,” Christopher Swann reminds us that industry claimed the 1990 Clean Air Act would increase electricity prices by 13% when in fact they fell by 20%. Christopher Swann, “Backing Off Air Rules,” N.Y. Times, Sept. 5, 2011, at B2. Moreover the decision to scrap the new rules penalizes companies who invested in new pollution control technology in anticipation of the existing Clean Air Act being implemented in a timely fashion. The decision will hurt the natural gas industry, which had anticipated increased demand for its product as the ozone rules forced dirtier energy providers to close. Liam Denning, Obama Burns Gas Drillers on Ozone, Wall St. J., September 3-4, 2011, at B16. For a devastating insider’s account of the history behind this decision by NRDC attorney John Walke see:

Of course the Clean Air Act makes it illegal for EPA to consider economic impacts when setting purely health-based standards like national air quality controls (costs can be considered at the implementation stage). Also the President does not have the legal authority to dictate to the EPA Administrator what decision she should make in setting air quality standards under the Clean Air Act. See Robert V. Percival, “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” 79 Fordham L. Rev. 2487 (2011). However, there is widespread agreement that the President could fire EPA Administrator Lisa Jackson if she refused to comply with his directive.  On Friday Jackson appeared to accept the President’s directive while definitely not endorsing it. After citing EPA’s other actions to control air pollution during the Obama administration, she concluded: ”We will revisit the ozone standard, in compliance with the Clean Air Act.”  Her statement is available online at:

Last week five Chinese environmental groups led by Ma Jun’s Institute for Public and Environmental Affairs released another report criticizing pollution by Chinese suppliers of Apple. The report, entitled “The Other Side of Apple 2” is based on data collected during a seven-month investigation of Apple’s suspected suppliers. It finds that 27 of these suppliers have released toxic pollutants that have harmed communities or the environment. Apple executives responded to the report by reiterating the company’s commitment to environmental compliance by its suppliers and by agreeing to speak with the authors of the report. Last week the World Bank released a report urging China to act to reduce the rise of non-communicable diseases including diseases caused by air and water pollution. The report, entitled “Toward a Healthy and Harmonious Life,” is available online at: The report notes that China can save a staggering $10.7 trillion from 2010 to 2040 if it can just reduce by 1% its rate of cardiovascular disease.

Japan’s new prime minister Yoshihiko Noda confirmed that he supports a gradual phaseout of nuclear power. Last week, in his first address to the Japanese nation, Noda stated that it would be “unrealistic” to build any new nuclear power plants or to extend the life of existing plants in light of the severe accident at the Fukushima Daiichi reactor complex. Last week the Associated Press released the results of a lengthy investigation concluding that seismic risks at U.S. nuclear power plants have been significantly underestimated, by a figure of 24 times in one case. The study concluded that nearly one-quarter of the 104 nuclear plants in the U.S. may need to be modified to protect against seismic risks. Dina Cappiello & Jeff Donn, Quake Risk to Reactors Greater than Thought, AP ( On September 1 the U.S. Nuclear Regulatory Commission (NRC) released for public comment a draft letter requesting its licensees to reevaluate their facilities’ vulnerability to earthquakes and to supply the NRC with data to assist in the revision of safety standards for seismic risks. 76 Fed. Reg. 54507 (Sept. 1, 2011).

Like President George W. Bush’s memoir (see Nov. 14, 2010 blog post), former Vice President Dick Cheney’s “In My Time” almost entirely ignores environmental issues. The words “climate change,” “global warming,” “Kyoto Protocol,” and even “Christie Todd Whitman” are never mentioned in his book. One would have thought Cheney would be proud enough to explain how he engineered President Bush’s repudiation of his campaign pledge to control emissions of CO2 or his successful effort to neuter EPA Administrator Whitman, issues covered extensively in Bart Gellman’s Angler and Whitman’s own memoir (“It’s My Party Too”). However, Cheney cannot resist describing his failed energy task force as a triumph, not because it changed policy, but rather because he was able to defeat lawsuits seeking greater disclosure of its operations. Cheney portrays environmentalists as naive for promoting renewable energy and expresses pride in his famous statement that “Conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.“ Cheney claims that environmentalists do not understand the need to increase the domestic supply of fossil fuels and again raises the bogus specter of the lights going out if we do not do so. He never mentions Ken Lay or the role of Enron’s energy traders in engineering the brief escalation of electricity prices in California that initially was used to justify formation of his task force.

In 2008 the federal Lacey Act that makes it illegal to import wildlife in violation of U.S. or foreign laws was amended to extend its protections to forest products. The law requires companies to use “due care” to ensure that their suppliers of forest products are in compliance with the law, making it a powerful tool to decrease demand for the fruits of illegal logging operations. Federal agents recently raided a Gibson Guitar factory in Tennessee to investigate whether ebony from India was shipped to the company in violation of Indian law. The raid has been taken as a signal that the U.S. Department of Justice will aggressively enforce the Lacey Act as extended to forest products. Anderson Hardwood Floors expresses strong support for the law as a means of protecting it from unscrupulous competitors who obtain wood through illegal logging. Anderson, which now makes 90% of its products in the U.S., imports wood only from Paraguay where it can be confident that its suppliers are complying with the law. Kris Maher & James R. Hagerty, Forestry Law Splits Wood Industry, Wall St. J., Sept 2, 2011, at B2.

Last week I began teaching Environmental Law at both the Georgetown University Law Center, where I am a visiting professor this fall, and the University of Maryland School of Law. There are 56 students in my Georgetown class and 66 in the Maryland class. In both classes we are using my casebook Environmental Regulation: Law, Science and Policy, which has just been issued by Wolters Kluwer in an electronic edition that enables professors to annotate and update the casebook instantly and to embed interactive video links into the text. The new SmartBook technology also enables students to brief cases, highlight the text, prepare outlines, and access the text from mobile media. These are really exciting developments that have been enthusiastically embraced by the students who have elected to use the SmartBook version of the casebook. For more information see my casebook website at

Monday, August 29, 2011

Vietnamese Delegation, Superbugs & GMOs, XL Pipeline Decision, Kenya E-Court, Danish Arctic Plan, China Sues Conoco Phillips (by Bob Percival)

On Tuesday August 23 I hosted a group of visiting environmental professionals from Vietnam at the University of Maryland School of Law. The group included Dr. Loi Van Dang, Deputy Director of the Department of Pollution Control at the Vietnam Environment Administration (VEA), Mr. Son Minh Hoang, Deputy Director of the VEA’s Department of Policy and Legislation, Dr. Dong The Nguyen, VEA’s Deputy General Director in the Ministry of Natural Resources and Environment, and Dr. Khanh Quoc Nguyen, Director of the VEA’s Center for Environmental Information and Data. It also included Mr. Phuong Nam Nguyen, Director of the Vietnam Environment Protection Fund, Mr. Sy Thi Nguyen, Deputy Director of the Environmental Crime Prevention Unit in Vietnam’s Ministry of Public Security and an environmental journalist, Dr. My Thi Pham, who is the Editor-in-Chief of the newspaper Natural Resources & Environment. Vietnam is in the process of revising its environmental laws, as is customary every five years, and the group was visiting the U.S. under the sponsorship of the U.S. Department of State’s International Visitor Leadership Program. I was asked to present a lecture to them summarizing aspects of U.S. environmental law that might be useful to them in updating Vietnam’s laws.

When I visited Vietnam in May 2008, I spent an afternoon in Hanoi at what was then called the Vietnam Environmental Protection Agency, meeting with Dr. Tran Hong Ha, who was then the agency’s Director General. (See May 4, 2008 blog posting). Last Tuesday I showed the Vietnamese visitors a photo of my visit with Dr. Ha, who they explained has been promoted to an even more important position in the Vietnamese government. Half way through my presentation the ceiling started rumbling and the floor shook. One of the interpreters who had lived for many years in California jumped under a table and declared that it was an earthquake. I continued lecturing for another 15 minutes until a security guard burst into the room and asked why we had not evacuated the building (answer: no one told us to). The evacuation enabled me to introduce the visitors to several members of our faculty, gathered in the park across the street from the law school, but it precluded us from completing our workshop.

Hurricane Irene hit the east coast and the Washington area this weekend. While it was not nearly as bad as people initially had feared, the concern that major urban areas like New York City could be flooded by Katrina-like storm surges seems to have pointed the way to what we can expect in the future as sea level rise and stronger hurricanes (both forecast by the IPCC) occur with greater frequency.

Despite a strong stock market rally today, Monsanto Corp. was one of the few companies that saw its stock decline in price. The reason apparently was an article in the Wall Street Journal that publicized a discovery by scientists from Iowa State University. The scientists found that some agricultural pests appear to have developed immunity tonsanto’s genetically modified crops that are supposed to be resistant to the bugs. Scott Kilman., Monsanto Corn Plant Losing Bug Resistance, Wall St. J., Aug. 29, 2011, at B1. Are presidential candidates who question the theory of evolution listening?

Despite strong protests from environmental groups, the U.S. State Department on August 25 approved construction of the XL pipeline to transport crude oil from Alberta’s tar sands to U.S. refiners. Several prominent environmentalists,, including Gus Speth, were arrested and spent last weekend in jail after protesting in front of the White House. Environmentalists fear that the piepline will help Canada market oil derived from Alberta tar sands that generates significantly more greenhouse gase emissions than alternative fuels.

In August 2010 the nation of Kenya adopted an ambitious new constitution that, among other reforms, created a Land and Environmental Court. The constitution was approved by a vote of 67% of Kenyans who voted in a referendum in August 2010. Under the terms of the new constituton, Kenya’s Parliament was supposed to enact implementing legislation within one year of adoption of the constitution. With the deadline looming, Kenya’s Parliament did in fact adopt legislation to implement the terms of the new constitution. While I do not have direct confirmation that this included legislation to establish Kenya’s Land and Environment Court in July 2011, draft legislation to implement this provision of the constitution was unveiled in late July 2009.

On August 23 the Foreign Ministry of Denmark unveiled a new 10-year plan for the Arctic that shifts the focus of government policy from environmental protection to commercial and economic development. The strategy was agreed upon by the governments of Denmark, Greenland, and the Faroe Islands. Danish Foreign Minister Lene Esperson explained that “Previously, the discussion about the Arctic region has focused on the environment, on whether we oughtn’t turn the region into one large natural preserve. But Denmark, Greenland and the Faroe Islands have now agreed that we want to utilize the commercial and economic potential of the area.” The plan seeks to encourage private investment in the area to improve the living standards of people residing there. Flemming Emil Hansen, Arctic Strategy Shifts to Economic Development, Wall St. J., Aug. 24, 2011, at A6.

Press reports last week confirmed that the Chinese government’s maritime authority is about to sue the U.S. oil company Conoco-Phillips for two major oil spills that occurred in June 2011 in Bohai Bay. China’s State Oceanic Administration is reviewing applications from 49 Chinese law firms to help with the litigation. The two spills released 3,2000 barrels of oil and drilling fluids in the Penglai 19-3 offshore oil field, spreading pollution over 324 square miles of Bohai Bay. Conoco states that its cleanup of the spills is more than 95% complete and that it will “do the right thing” with respect to compensating victims of the spills. Edward Wong & Clifford Krauss, Chinese Maritime Agency Plans to Sue American Oil Company Conoco Phillips Over Two Spills, N.Y. Times, Aug. 25, 2011 (

Sunday, August 21, 2011

Dalian Protest, Japan Reorganizes Nuclear Regulation, Uganda Mabira Forest Dispute, GOP Candidates v. EPA (by Bob Percival)

Last week a large group of Chinese citizens - officially estimated to number 12,000, but many more by other estimates -- gathered in the northern port town of Dalian to protest the operation of a $1.5 billion chemical plant. The Fujia chemical plant, which has been operating for two years, makes paraxylene, a toxic chemical used to manufacture polyester. The plant is located on the coast. After the plant’s seawall was breached in a typhoon that hit a week earlier, seawater lapped at the walls of the plant, causing the public to fear that toxic chemicals would be released. The city’s Communist party secretary reportedly stood atop a car to beg the demonstrators to disperse, promising them that the plant would be closed. Sharon LaFraniere & Michael Wines, Protest Over Plant Shows Citizen Pressure on China, N. Y. Times, Aug. 15, 2011. The demonstration, organized in part through social media and other internet communications, is another sign of the potential power of public protests in China. Although the Dalian protest was peaceful, my Chinese sources indicate that some of the protesters may have been roughed up by police.

On August 15 the Japanese government announced that it will move the agency responsible for regulating nuclear power from the Ministry of Economy, Trade and Industry to the Environment Ministry. A new Nuclear Safety Agency will be created in April replacing the current Nuclear and Industrial Safety Agency and the Nuclear Safety Commission. It will be an affiliate of the Environment Ministry. The move is widely viewed as a means of strengthening regulation of nuclear power in light of the perception that the existing regulatory agencies were too close to the industry. Mitsuru Ore, Japan Tightens Nuclear Oversight, Wall St. J., April 16, 2011, at A9.

The shutdown of nuclear power plants in Japan in the wake of the March 2011 accident at the Fukushima Daiichi nuclear power complex continues to spread. Strong pressure from the Japanese public has prevented the restart of reactors temporarily idled for routine inspections. As a result, only 15 of the country’s 54 nuclear power plants are in operation now. If this trend continues through next spring Japan’s entire nuclear power industry, which accounted for 30% of the country’s electric generation prior to the accident, could be shut down. Although conservation measures reduced peak electric demand in Japan in July 2011 by 20 percent, several old fossil-fueled power plants have been placed in operation to prevent severe power shortages. In addition to increasing the cost of electricity generation by nearly $40 billion per year, increased use of oil and coal could increase Japan’s greenhouse gas (GHG) emissions by 16% over 1990 levels by the year 2013. Hiroko Tabuchi, Quake in Japan Causes Costly Shift to Fossil Fuels, N.Y. Times, Aug. 20, 2011, at B2. The Kyoto Protocol requires Japan to reduce its GHG emissions by 6% over 1990 levels during the 2008-2012 period. Meanwhile in the U.S. the board of the Tennessee Valley Authority has voted to resume construction of a nuclear power plant that had been put on hold in 1988. The decision to restart construction was taken to replace old coal-fired plants that are being retired in part due to pollution and climate change concerns. Matthew L. Wald, Alabama Nuclear Reactor, Partly Built, to Be Finished, N.Y. Times, Aug. 19, 2011, at A12.

The U.S. Department of Interior announced on August 19 that on December 14 it will conduct the first sale of leases for offshore oil drilling in the Gulf of Mexico since the Deepwater Horizon oil spill in April 2010. The Department raised the minimum bid to $100 per acre from $37.50 per acre in an effort to prevent oil companies from stockpiling properties that are never developed. Leases that are not developed can revert back to the federal government at the end of their term, though extensions routinely have been granted in the past. ExxonMobil recently sued the Interior Department for refusing to extend the term of its leases for the Julia oil field in the Gulf of Mexico that the company estimates may contain one billion barrels of recoverable oil. Russell Gold, Exxon, U.S. Government Duel Over Huge Oil Find, Wall St. J., Aug. 18, 2011, at A1. Statoil ASA of Norway, whose lease extension request also was denied, filed suit on August 15, claiming that Interior’s action was unprecedented because lease extension requests never previously have been denied for deepwater oil fields.

On August 15 the U.S. Fish & Wildlife Service released its draft comprehensive conservation plan (CCP) for the Arctic National Wildlife Refuge (ANWR) in northern Alaska. 76 Fed. Reg. 50490. Public comment on the CCP and a companion draft environmental impact statement will be accepted until November 14. The CCP governs how ANWR will be managed for the next 15 years. Among the alternative it proposes are inclusion of parts of ANWR in the National Wilderness Preservation System as well as inclusion of some of the rivers in the area in the Wild and Scenic Rivers System.

Opposition reportedly is growing to Uganda President Yoweri Museveni’s plan to turn over part of the protected Mabira Forest Reserve for development by a family of sugar magnates. The Mehta family is promising to create jobs by developing the land for sugar cane production and to build a road and a power plant. Environmentalists are outraged that the property transfer, first proposed several years ago, would be done without observing procedures required by existing laws. While President Museveni is framing it as a “jobs v. environment“ dispute, the opposition to the proposal is broadening to include many groups not normally aligned with environmental concerns as well as some members of Museveni’s own party. Frederick Golooba-Mutebi, Uganda: Nation Lines Up Against Museveni Over Protected Forest, The Nigerian Daily, Aug. 20, 2011.

“Jobs v. the environment” may become a prominent theme of Republican presidential candidates in the U.S. Many are bashing EPA for issuing “job-killing regulations” even as public opinion polls continue to show strong public support for the agency. John M. Broder, Bashing EPA Is New Theme in G.O.P. Race, N.Y. Times, Aug. 18, 2011, at A1. Texas Governor Rick Perry’s claims that climate scientists “have manipulated data so that they will have dollars rolling into their projects” and that “almost weekly or even daily scientists . . . are coming forward and questioning . . . man-made global warming” received “Four Pinnocchios” as whopping lies by Washington Post “Fact Checker” Glenn Kessler. Noting that five investigations into the East Anglia email hacking had exonerated the scientists involved, Kessler declared the “scandal to be a figment of Perry’s imagination.” When asked to substantiate the claim that scientists increasingly are questioning climate change, Perry’s campaign cited “The Petition Project” ( that claims 31,487 American scientists question climate change. The Fact Checker noted that the petition includes very few people with expertise in climate research, that 10 million people in the U.S. would qualify under the project’s broad definition of “scientists” (see, and that there have been virtually no new signers in the last three years. Glenn Kessler, “Rick Perry’s Made Up ‘Facts’ About Climate Change,” Washington Post, Aug. 20, 2011.

Last Sunday afternoon my former student Neal Kemkar, who works at the White House’s Council on Environmental Quality (CEQ), was kind enough to give my wife and I a private tour of the West Wing of the White House. White House staff are allowed to give such tours on nights and weekends when it will not interfere with other business being conducted there. Among the sites we visited were the Office of the Vice President, the White House Mess, the Rose Garden, the Cabinet Room, the Oval Office, and the Roosevelt Room. The Situation Room, where the famous photo was taken of President Obama monitoring the raid that killed Osama bin Laden, is not on the tour, but it is directly across from the White House Mess and as staffers entered and exited it was possible to get a brief glimpse inside of what is a surprisingly small room crammed with technology. Outside of the Cabinet Room is the “Blackberry basket” where all cabinet officers must leave their cellphones prior to entering cabinet meetings. As cabinet officers enter the room, a White House staffer posts stickies on each cellphone to identify its owner. The highlight of the tour is the Oval Office. President Obama has placed busts of Abraham Lincoln and Martin Luther King on the wall opposite his famous desk that is made from timbers of the HMS Resolute. One of the three original copies of the Emancipation Proclamation is above the bust of King. A bowl of Washington apples, delivered fresh each day, sits on the table between couches.