On Wednesday January 26 the Economic Affairs Committee of the lower house of the Dutch Parliament held its long-awaited hearing on Royal Dutch Shell’s oil production activities in the Niger Delta. While conceding that the number of oil spills occurring in this area is “unacceptably high,” Ian Craig, Shell’s executive vice president for sub-Saharan Africa, blamed 70% of them on sabotage by militants or organized oil theft by others. Geert Ritsema of Friends of the Earth accused Shell of tolerating environmental damage in Nigeria that it never would accept in the Netherlands. Shell countered that it was not applying a double standard, citing its much better environmental record in Gabon where it did not face militant attacks. Ritsema argued that Shell’s practice of open burning (“flaring”) of excess gas from 100 wells in Nigeria released emissions equivalent to four million Dutch automobiles. A Dutch lawmaker argued that Shell should openly press the Nigerian government to stop corruption and oil theft, but Craig argued that these matters “should be discussed in private.” David Jolly, Dutch Lawmakers Question Shell on Oil Pollution in Nigeria, N.Y. Times, Jan. 26, 2011.
On Tuesday January 25 President Obama delivered his annual State of the Union message to a joint session of Congress. While pledging a renewed effort to eliminate obsolete regulations, Obama did not directly address climate change. He did challenge Congress to pursue a new goal of producing 80 percent of America’s electricity from clean-energy sources by the year 2035. This challenge initially surprised many observers, but it was subsequently learned that Obama’s definition of clean energy would rely heavily on increased use of natural gas and maybe even “clean coal” technology.
On Friday January 28, the U.S. marked the 25th anniversary of the space shuttle Challenger disaster, which killed seven astronauts. The tragedy occurred on the day President Reagan was to deliver a State of the Union message. I remember it well because the disaster occurred while I was testifying before Senator John Glenn, the first American astronaut to orbit the earth. Glenn was chairing a hearing of the Senate Governmental Affairs Committee on OMB’s abuses of power in blocking regulations by EPA and the Occupational Safety and Health Administration. I was one of the first witnesses because OMB Director James Miller had been delayed at a meeting with President Reagan at the White House to discuss the State of the Union message. I was testifying because I had brought the first lawsuit challenging the legality of OMB’s efforts to block EPA regulations on behalf of the Environmental Defense Fund for whom I worked. Senator Al Gore also was participating in the hearing and I recall their faces turning ashen when aides whispered the news to Glenn and Gore. They decided to continue the hearing and I did not learn about the disaster until after I finished testifying when one of Glenn’s aides told me. Coincidentally that afternoon the federal district court in Washington released its decision ruling that OMB had no authority to block the regulations. Environmental Defense Fund v. Thomas, 627 F. Supp. 566 (D.D.C. 1986).
As the world’s elite were gathering in Davos, Switzerland for the annual World Economic Forum, very different gatherings of people were taking place in Tunisia, Egypt, and other parts of the Middle East. The remarkable cascade in the Middle East began with Tunisians taking to the streets to force the end of President Zine al-Abidine Ben Ali’s 24 years in power. Egyptians are now doing the same in an effort to end President Hosni Mubarek’s nearly 30-year reign. Some have attributed the Tunisian protests in small part to the release of U.S. diplomatic cables by wikileaks that reported on astonishing levels of corruption by President Ben Ali and his family. Egypt’s government responded to the protests by shutting down the internet and cellphone traffic, a strategy that could easily backfire. Meanwhile Chinese internet censors are trying to keep China’s people from hearing about the protests in the Middle East. They reportedly have blocked web searches using the word “Egypt.” Jeremy Page, Beijing Blocks Protest Reports, Wall St. J., Jan. 31, 2011. Another jarring disclosure by the global press last week occurred in connection with Afghanistan’s decision to sign an agreement with the United Nations to end the use of child soldiers. The young boys in the Afghan military reportedly have been widely used as sex slaves by military commanders, a tradition known as “bacha bazi” (boy play) in Dari. Maria Abi-Habib, Officials Move to Curb Use of Underage Soldiers, Wall St. J., Jan. 30, 2011.
On Wednesday the New Mexico Supreme Court unanimously ruled that the state’s new governor Susana Martinez did not have the authority to prevent environmental regulations adopted by the previous administration from taking effect. The regulations require annual 3% reductions in greenhouse gas (GHG) emissions and control discharges of wastes from dairies. Arizona’s attorney general last week withdrew the state’s support for EPA’s “endangerment finding” for GHG emissions, which is being challenged in the U.S. Court of Appeals for the D.C. Circuit.
Last week a five-member Court of Appeals in Botswana overturned a decision that had barred the Baswara tribe from drilling new bore holes and using old ones to obtain water in the Central Kalahari Game Reserve. The decision is viewed as a major victory for the opposition Botswana Democratic Party. Baswara representatives are questioning whether the government will comply with the decision, citing the government’s failure to comply fully with a 2006 decision that had allowed the tribe to remain in the CKGR despite a government relocation program. A copy of the Court of Appeals decision is available online at: http://assets.survivalinternational.org/documents/545/bushmen-water-appeal-judgement-jan-2011.pdf
This week I attended the annual Macworld conference in San Francisco’s Moscone Center. Attendance appeared to be lower this year, but many companies were displaying cool new accessories and apps for Apple’s products. I was amazed at how many of these vendors were from foreign countries. I purchased a case for my iPhone that is made of baseball leather with stitching that gives it the look and feel of a baseball. The case is made by Trexta, a company headquartered in Turkey. There was considerable buzz about possible use of Near Field Communications “wave and pay” technology on the upcoming iPhone 5. The local press in San Francisco were trying to locate for comment the entrepreneur from Silicon Valley’s Narus who reportedly had sold Telecom Egypt the real time traffic intelligence equipment that facilitated that country’s internet shutdown.
Monday, January 31, 2011
Sunday, January 23, 2011
Chinese NGOs Question Apple's Supply Chain, Hong Kong Biodiversity, New Obama Executive Order, European Carbon Trading Suspended (by Bob Percival)
Last week Ma Jun’s Institute for Public and Environmental Affairs (IPE) released a report rating Apple, Inc. last in responsiveness to health and environmental concerns in its Chinese supply chain from among 29 global technology companies studied by the IPE. BT Group PLC and Hewlett Packard Co. were among the highest-rated companies. The report cited an incident in which 49 workers were poisoned by exposure to a toxic chemical at a Chinese touch screen assembly plant in Apple’s supply chain. Apple maintains that the supplier no longer uses the toxic chemical that sickened the workers and that its own supplier responsibility reports document the success of the supply chain auditing program it launched in 2006. Thirty-six Chinese NGOs participated in the “Green Choice” initiative that prepared the report, which is available (in Chinese) online at: http://www.ipe.org.cn/Upload/IPE报告/苹果的另一面_Draft+Final_20110118-3.pdf
Last week Hong Kong-based NGO Civic Exchange announced a new program to promote protection of biodiversity in the former British outpost. The program will include annual biodiversity conservation reviews and a new strategy to improve nature protection in the Hong Kong area. The strategy is outlined in a report Nature Conservtion: a New Policy Framework for Hong Kong,” which Civic Exchange prepared through funding from the ExxonMobil Hong Kong Ltd. A copy of the report, which is designed to enable Hong Kong to participate in the Convention on Biological Diversity, is available at: http://www.civic-exchange.org/wp/wp-content/uploads/2011/01/110121NatureConservationEN.pdf Civic Exchange will host the first summit of local environmental NGOs in Hong Kong on March 21.
On Tuesday January 18 President Obama signed a new executive order on regulatory review. A copy of the order is available online at: http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order The new executive order largely continues the type of regulatory review that has been in operation since September 1993 when President Clinton issued Executive Order 12866. It supplements that order by asking agencies within 120 days to develop and submit to OMB’s Office of Information and Regulatory Affairs (OIRA) plans to streamline, modify, expand or repeal existing regulations to make them more effective or less burdensome. Although some business groups hailed this as a step in the right direction, when contacted by reporters to cite specific examples of rules to be repealed, they did not respond. Binyamin Applebaum & Edward Wyatt, Obama May Find Useless Regulations Are Scarcer than Thought, N.Y. Times, Jan. 22, 2011, at B1. The regulations the U.S. Chamber of Commerce has complained about in the past, including EPA’s regulations of greehouse gas emissions, are unlikely to be among the agency’s or the administration’s candidates.
Ever since the federalization of U.S. environmental law during the Nixon administration, every president has used some form of regulatory review because presidents care intensely about the work of regulatory agencies. I have written extensively on regulatory review and I brought the first successful lawsuit challenging the Reagan administration’s abuse of it. See, e.g., “Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency” 54 Law & Cont. Problems 127 (1991); “Presidential Management of the Administrative State: The Not-So-Unitary,” 51 Duke L. J. 963 (2001); Environmental Defense Fund v. Thomas, 627 F.Supp. 566 (D.D.C. 1986). My overall conclusion is that if it is conducted even-handedly, regulatory review may have modest benefits in improving the quality of regulation and spurring agencies to do their jobs. However, as the experience of the Reagan administration demonstrated, it also can used as a tool to prevent agencies from carrying out their statutory duties, sacrificing public health and the environment and serving as a back channel for favored industries. While it is simply too early to tell if the new executive order will produce any significant change in how the Obama administration conducts regulatory review, Republican Majority Leader Eric Cantor expressed irritation that President Obama was claiming credit for what Cantor believes was his idea.
The European Commission (EC) suspended trading in carbon allowances on January 19 after the revelation that cyber pirates stole 7 million Euros worth of permits during online attacks over the last two months. The permits were stolen from the Czech Republic’s permit registry. The suspension will last at least a week as the EC determines how to increase cyber security. Security was enhanced after a similar cyber attack stole 4 million Euros worth of permits from Germany in early 2010. Carbon trading has been underway in Europe for six years. From 2005 to 2007 the permits were distributed to companies for free. Companies now have to pay for a portion of their quotas but the EC has proposed to require that all permits be purchased at auction beginning in 2013 for European power companies and in 2020 for other heavy industries. Joshua Chaffin, Hackers Cast Cloud Over EU Emissions Trade Scheme, Jan. 20, 2011, at 22.
On Wednesday January 19 my Global Environmental Law seminar met for the first time this semester. We were pleased to host guest speaker Craig Dilworth, an environmental philosopher who teaches at Uppsala University in Sweden. Dr. Dilworth explained the philosophy outlined in his book “Too Smart for Our Own Good: The Ecological Predicament of Humankind.” Explaining his “vicious cycle principle,” Dilworth argues that whenever technological development creates surplus, human population expands and creates resource scarcity due to human consumption and pollution. Dr. Dilworth was accompanied to class by David Zoll, former general counsel of the Chemical Manufacturers Association (now the American Chemical Council) and Sam Hopkins, who has long worked on population issues.
Last week Hong Kong-based NGO Civic Exchange announced a new program to promote protection of biodiversity in the former British outpost. The program will include annual biodiversity conservation reviews and a new strategy to improve nature protection in the Hong Kong area. The strategy is outlined in a report Nature Conservtion: a New Policy Framework for Hong Kong,” which Civic Exchange prepared through funding from the ExxonMobil Hong Kong Ltd. A copy of the report, which is designed to enable Hong Kong to participate in the Convention on Biological Diversity, is available at: http://www.civic-exchange.org/wp/wp-content/uploads/2011/01/110121NatureConservationEN.pdf Civic Exchange will host the first summit of local environmental NGOs in Hong Kong on March 21.
On Tuesday January 18 President Obama signed a new executive order on regulatory review. A copy of the order is available online at: http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order The new executive order largely continues the type of regulatory review that has been in operation since September 1993 when President Clinton issued Executive Order 12866. It supplements that order by asking agencies within 120 days to develop and submit to OMB’s Office of Information and Regulatory Affairs (OIRA) plans to streamline, modify, expand or repeal existing regulations to make them more effective or less burdensome. Although some business groups hailed this as a step in the right direction, when contacted by reporters to cite specific examples of rules to be repealed, they did not respond. Binyamin Applebaum & Edward Wyatt, Obama May Find Useless Regulations Are Scarcer than Thought, N.Y. Times, Jan. 22, 2011, at B1. The regulations the U.S. Chamber of Commerce has complained about in the past, including EPA’s regulations of greehouse gas emissions, are unlikely to be among the agency’s or the administration’s candidates.
Ever since the federalization of U.S. environmental law during the Nixon administration, every president has used some form of regulatory review because presidents care intensely about the work of regulatory agencies. I have written extensively on regulatory review and I brought the first successful lawsuit challenging the Reagan administration’s abuse of it. See, e.g., “Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency” 54 Law & Cont. Problems 127 (1991); “Presidential Management of the Administrative State: The Not-So-Unitary,” 51 Duke L. J. 963 (2001); Environmental Defense Fund v. Thomas, 627 F.Supp. 566 (D.D.C. 1986). My overall conclusion is that if it is conducted even-handedly, regulatory review may have modest benefits in improving the quality of regulation and spurring agencies to do their jobs. However, as the experience of the Reagan administration demonstrated, it also can used as a tool to prevent agencies from carrying out their statutory duties, sacrificing public health and the environment and serving as a back channel for favored industries. While it is simply too early to tell if the new executive order will produce any significant change in how the Obama administration conducts regulatory review, Republican Majority Leader Eric Cantor expressed irritation that President Obama was claiming credit for what Cantor believes was his idea.
The European Commission (EC) suspended trading in carbon allowances on January 19 after the revelation that cyber pirates stole 7 million Euros worth of permits during online attacks over the last two months. The permits were stolen from the Czech Republic’s permit registry. The suspension will last at least a week as the EC determines how to increase cyber security. Security was enhanced after a similar cyber attack stole 4 million Euros worth of permits from Germany in early 2010. Carbon trading has been underway in Europe for six years. From 2005 to 2007 the permits were distributed to companies for free. Companies now have to pay for a portion of their quotas but the EC has proposed to require that all permits be purchased at auction beginning in 2013 for European power companies and in 2020 for other heavy industries. Joshua Chaffin, Hackers Cast Cloud Over EU Emissions Trade Scheme, Jan. 20, 2011, at 22.
On Wednesday January 19 my Global Environmental Law seminar met for the first time this semester. We were pleased to host guest speaker Craig Dilworth, an environmental philosopher who teaches at Uppsala University in Sweden. Dr. Dilworth explained the philosophy outlined in his book “Too Smart for Our Own Good: The Ecological Predicament of Humankind.” Explaining his “vicious cycle principle,” Dilworth argues that whenever technological development creates surplus, human population expands and creates resource scarcity due to human consumption and pollution. Dr. Dilworth was accompanied to class by David Zoll, former general counsel of the Chemical Manufacturers Association (now the American Chemical Council) and Sam Hopkins, who has long worked on population issues.
Sunday, January 16, 2011
2010 Hottest Year, Oil Spill Report, "Crude" Outtakes Decision, British Protesters Freed, Wikileaks on Icelandic Whaling (by Bob Percival)
On Wednesday January 12 the National Oceanic and Atmospheric Administration (NOAA) and NASA announced that 2010 tied 2005 as the warmest year since global temperature readings began to be recorded in 1880. The agencies reported that nine out of the ten warmest years on record have occurred in the last decade. NOAA scientists attributed the temperature anomalies to the influence of greenhouse gas (GHG) emissions.
Last week the U.S. Court of Appeals for the D.C. Circuit rejected a third request from the state of Texas to block EPA’s takeover of issuance of Clean Air Act permits in Texas. On Friday EPA held a hearing in Texas where its actions were widely supported by local environmental groups. Texas officials did not testify at the hearing. EPA Regional Administrator Al Armendariz stated that EPA was forced to take the action due to the refusal of Texas authorities to implement new requirements for controlling GHG emissions. Randy Lee Loftis, EPA Gets Citizen Backing in Texas Greenhouse-Gas Disp[ute, Dallas Morning News, Jan. 15, 2011.
On January 11 the President’s Commission on the Deepwater Hortizon oil spill released its final report. The report called for “fundamental reform” to produce dramatic improvements in oil industry safety practices. The Commission recommended that an independent safety agency be created to regulate offshore oil drilling and it called for significantly increased funding on oil spill response planning. The Commission expressed “serious concerns” about offshore drilling in Arctic waters off the northern coast of Alaska because of very limited industry response capabilities there. A copy of the report is available online at: http://www.oilspillcommission.gov/final-report. One indication of how eager the oil industry is to drill in Arctic waters was last week’s stock swap agreement between BP and Russia’s state-controlled Rosneft oil company. The agreement, which gives BP an additional 9.5% stake in Rosneft and Rosneft a 5% stake in BP, is expected to facilitate drilling by the companies in Russian Arctic waters. On January 11 the Trans Alaska pipeline restarted after a three-day shutdown caused by a leak at a pump station. While work continues to repair the damage, oil is flowing through the pipeline at a reduced rate.
On January 13 the U.S. Court of Appeals for the Second Circuit rejected the claims of a filmmaker who produced a documentary on the Ecuador litigation against Chevron that outtakes from his film are protected by the press privilege. Chevron sought the outtakes to bolster its claim that plaintiffs lawyers had colluded with Carlos Beristain, the special master appointed by the Ecuadoran court to assess environmental damage caused by oil drilling. In rejecting the press privilege the court emphasized that plaintiffs had asked Joe Berlinger, the filmmaker, to tell their story, which the court said undermined his claim that he collected the information for independent reporting. The court also noted that the film had been altered at the Ecuadoran plaintiffs’ request to delete scenes in which they interacted with the special master prior to his appointment. A copy of the decision, Chevron Corp. v. Berlinger, is available online at: http://www.ca2.uscourts.gov/decisions/isysquery/8b2ec3ba-a15a-46d8-a8ae-fcfe27105709/1/doc/10-1918_opn.pdf
On January 13 the U.S. Environmental Protection Agency (EPA) revoked a crucial Clean Water Act §404 permit that had been granted to Arch Coal for its proposed Spruce No. 1 mountaintop coal mining operation in Logan County, West Virginia. The project, which would have been one of the nation’s largest mountaintop removal operations, had been approved in 2007 by the George W. Bush administration. EPA concluded that by burying miles of streams under millions of tons of residue the project would have caused unacceptable environmental damage. The project reportedly is the only individual mountaintop mining operation to have been subject to a full blown environmental impact analysis. John M. Broder, U.S. Revoke Permit for West Virginia Mining Plan, N.Y. Times, Jan. 14, 2011, at A14.
On January 10 environmental activists who were scheduled to go on trial in Nottingham, England for plotting to occupy and temporarily shut down Britain’s largest coal-fired power plant had the charges dismissed against them. The dismissal came 12 hours after a British newspaper revealed that the group had been infiltrated by a government agent provocateur named Mark Kennedy. A jury previously had rejected the claim by other members of the group that they had a “lawful excuse” because they were acting to prevent greater harm of death and serious injury from the plant’s emissions. The defendants who had the charges dismissed argued that Mr. Kennedy, who assumed the fictitious name of Mark Stone, was responsible for involving them in the action. Kennedy has quit the police and gone into hiding abroad. The protesters previously convicted were given only minimal sentences earlier this month by Judge Jonathan Teare who stated that he had “no doubt that each of you acted with the highest possible motives.” John F. Burns, Charges Dropped Against British Protesters, N.Y. Times, Jan. 10, 2011.
On January 13 Wikileaks released diplomatic cables from the U.S. Embassy in Reykjavik, Iceland. The cables discussed the January 27, 2009 decision by Iceland’s outgoing Fisheries and Agriculture Minister Einar K. Gudfinson quietly to authorize a massive increase in commercial hunting of fin and minke whales from 2009 through 2013. The cables reported the initial anticipation that the minister who succeeded Gudfinson would quickly withdraw the order. But they subsequently noted that the new government claimed that it was legally bound by the action. The British and Swedish ambassadors proposed a strong, joint protest with the United States. The ambassadors from these three countries later were joined by those from Finland, Germany, France and the Netherlands at a meeting with the new minister to protest the action. The new minister Steingrimur J. Sigfusson expressed an interest in scaling back the new quotas, while noting that support for whaling in Iceland was so deap-seated it constituted a “clash of cultures” with the outside world. He also claimed that if he rescinded the quotas he might be removed from office by Parliament. At a subsequent meeting in April 2009 the minister confirmed that he had read a letter from the Whole Foods grocery conglomerate warning that it would boycott Icelandic products if whaling continued, but he “did not seem to take it seriously” according to the cable. “He admitted that he had received a stack of similar letters but hadn’t read them all.”
Last week the U.S. Court of Appeals for the D.C. Circuit rejected a third request from the state of Texas to block EPA’s takeover of issuance of Clean Air Act permits in Texas. On Friday EPA held a hearing in Texas where its actions were widely supported by local environmental groups. Texas officials did not testify at the hearing. EPA Regional Administrator Al Armendariz stated that EPA was forced to take the action due to the refusal of Texas authorities to implement new requirements for controlling GHG emissions. Randy Lee Loftis, EPA Gets Citizen Backing in Texas Greenhouse-Gas Disp[ute, Dallas Morning News, Jan. 15, 2011.
On January 11 the President’s Commission on the Deepwater Hortizon oil spill released its final report. The report called for “fundamental reform” to produce dramatic improvements in oil industry safety practices. The Commission recommended that an independent safety agency be created to regulate offshore oil drilling and it called for significantly increased funding on oil spill response planning. The Commission expressed “serious concerns” about offshore drilling in Arctic waters off the northern coast of Alaska because of very limited industry response capabilities there. A copy of the report is available online at: http://www.oilspillcommission.gov/final-report. One indication of how eager the oil industry is to drill in Arctic waters was last week’s stock swap agreement between BP and Russia’s state-controlled Rosneft oil company. The agreement, which gives BP an additional 9.5% stake in Rosneft and Rosneft a 5% stake in BP, is expected to facilitate drilling by the companies in Russian Arctic waters. On January 11 the Trans Alaska pipeline restarted after a three-day shutdown caused by a leak at a pump station. While work continues to repair the damage, oil is flowing through the pipeline at a reduced rate.
On January 13 the U.S. Court of Appeals for the Second Circuit rejected the claims of a filmmaker who produced a documentary on the Ecuador litigation against Chevron that outtakes from his film are protected by the press privilege. Chevron sought the outtakes to bolster its claim that plaintiffs lawyers had colluded with Carlos Beristain, the special master appointed by the Ecuadoran court to assess environmental damage caused by oil drilling. In rejecting the press privilege the court emphasized that plaintiffs had asked Joe Berlinger, the filmmaker, to tell their story, which the court said undermined his claim that he collected the information for independent reporting. The court also noted that the film had been altered at the Ecuadoran plaintiffs’ request to delete scenes in which they interacted with the special master prior to his appointment. A copy of the decision, Chevron Corp. v. Berlinger, is available online at: http://www.ca2.uscourts.gov/decisions/isysquery/8b2ec3ba-a15a-46d8-a8ae-fcfe27105709/1/doc/10-1918_opn.pdf
On January 13 the U.S. Environmental Protection Agency (EPA) revoked a crucial Clean Water Act §404 permit that had been granted to Arch Coal for its proposed Spruce No. 1 mountaintop coal mining operation in Logan County, West Virginia. The project, which would have been one of the nation’s largest mountaintop removal operations, had been approved in 2007 by the George W. Bush administration. EPA concluded that by burying miles of streams under millions of tons of residue the project would have caused unacceptable environmental damage. The project reportedly is the only individual mountaintop mining operation to have been subject to a full blown environmental impact analysis. John M. Broder, U.S. Revoke Permit for West Virginia Mining Plan, N.Y. Times, Jan. 14, 2011, at A14.
On January 10 environmental activists who were scheduled to go on trial in Nottingham, England for plotting to occupy and temporarily shut down Britain’s largest coal-fired power plant had the charges dismissed against them. The dismissal came 12 hours after a British newspaper revealed that the group had been infiltrated by a government agent provocateur named Mark Kennedy. A jury previously had rejected the claim by other members of the group that they had a “lawful excuse” because they were acting to prevent greater harm of death and serious injury from the plant’s emissions. The defendants who had the charges dismissed argued that Mr. Kennedy, who assumed the fictitious name of Mark Stone, was responsible for involving them in the action. Kennedy has quit the police and gone into hiding abroad. The protesters previously convicted were given only minimal sentences earlier this month by Judge Jonathan Teare who stated that he had “no doubt that each of you acted with the highest possible motives.” John F. Burns, Charges Dropped Against British Protesters, N.Y. Times, Jan. 10, 2011.
On January 13 Wikileaks released diplomatic cables from the U.S. Embassy in Reykjavik, Iceland. The cables discussed the January 27, 2009 decision by Iceland’s outgoing Fisheries and Agriculture Minister Einar K. Gudfinson quietly to authorize a massive increase in commercial hunting of fin and minke whales from 2009 through 2013. The cables reported the initial anticipation that the minister who succeeded Gudfinson would quickly withdraw the order. But they subsequently noted that the new government claimed that it was legally bound by the action. The British and Swedish ambassadors proposed a strong, joint protest with the United States. The ambassadors from these three countries later were joined by those from Finland, Germany, France and the Netherlands at a meeting with the new minister to protest the action. The new minister Steingrimur J. Sigfusson expressed an interest in scaling back the new quotas, while noting that support for whaling in Iceland was so deap-seated it constituted a “clash of cultures” with the outside world. He also claimed that if he rescinded the quotas he might be removed from office by Parliament. At a subsequent meeting in April 2009 the minister confirmed that he had read a letter from the Whole Foods grocery conglomerate warning that it would boycott Icelandic products if whaling continued, but he “did not seem to take it seriously” according to the cable. “He admitted that he had received a stack of similar letters but hadn’t read them all.”
Monday, January 10, 2011
Oil Prices & Drilling Push, Regulatory "Hit List," Ecuador's Yasuni Fund, Dutch to Probe Shell in Nigeria, AALS (by Bob Percival)
Last week the International Energy Agency (IEA) warned that soaring oil prices may threaten the global economic recovery. The IEA reported that the cost of oil imported by the 34 OECD countries had risen by $200 billion a year to $790 billion annually. “High Oil Prices Pose Threat to Global Economic Recovery” at http://www.iea.org/index_info.asp?id=1737. The American Petroleum Institute (API) has launched a campaign to open more areas of the United States to oil drilling. Even before the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (Presidential Commission) releases its final report next Tuesday, API is lobbying to lift restrictions on offshore and onshore drilling. API points to a study it commissioned predicting that if drilling were permitted off the east and west coasts of the U.S., the eastern Gulf of Mexico, the Rocky Mountains and the Alaska National Wildlife Refuge (ANWR),150,000 jobs could be directed created by 2025 and another 380,000 jobs indirectly. Ed Crooks, U.S. Oil Groups Seek Easing of Drilling Curbs, Financial Times, Jan. 4, 2011. Meanwhile EPA’s Environmental Appeals Board (EAB) has reversed the granting of air quality permits for offshore drilling in the Beaufort and Chukchi seas off the northern coast of Alaska. The EAB found that the permits were premised on an inadequate analysis of nitrogen dioxide emissions as claimed by environmental groups who challenged the permits.
Last week the Presidential Commission investigated the BP oil spill released a draft chapter whose conclusions sounded remarkably similar to those of previous investigations of BP accidents, as ProPublica’s Abraham Lustgarten reported. Lustgarten compared quotations from the draft chapter with those from a 2007 U.S. Chemical Safety and Hazard Investigation Board inquiry and an internal BP inquiry into an explosion at a BP refinery in Texas, and a 2003 Scottish Environment Protection Agency report into accidents that occurred in 2000 at BP’s refinery in Grangemouth, Scotland. See http://www.propublica.org/article/deja-vu-the-national-commission-report-on-bps-gulf-disaster-echoes-old-find Lustgarten concludes that BP does not seem to learn from its past mistakes.
As newly-elected officials take office, some are acting quickly to change environmental policies. Susana Martinez, the new governor of New Mexico who is a skeptic of climate change, blocked a regulation from taking effect that would have required 3% annual reductions in greenhouse gas (GHG) emissions in the state. She also blocked a regulation to control waste discharges from dairies and dismissed the members of the state’s Environmental Improvement Board. Felicity Barringer, 2 Environment Rules Halted in New Mexico, N.Y. Times, Feb. 6, 2011. Representative Darell Issa, the new chair of the House Committee on Oversight and Investigations, has written a letters to 150 business leaders asking them to identify regulations that should be relaxed or repealed. This is reminiscent of the Reagan Administration’s efforts to compile a regulatory “hit list” through its Vice Presidential Task Force on Regulatory Relief, chaired by George H.W. Bush. That task force also contacted business leaders, including many in the oil industry, and then pressed EPA to abolish limits on the lead content of gasoline. This effort badly backfired once its horrendous health consequences were appreciated and EPA ultimately was able to phase out leaded gasoline.
As reported in this blog on August 9, 2010, Ecuador has agreed to block development of massive oil reserves under its Yasuni National Park if it receives $3.2 billion in compensation over 13 years from the international community. Yasuni is one of the most biodiverse areas on earth with a single hectare of the park containing more species of trees than found in the U.S. and Canada combined. However, less than $2 million has been raised for the UN-administered trust fund to compensate Ecuador for not developing the oil. Ecuador’s government has announced that it will abandon its promise to block oil development if the fund does not receive $100 million by the end of 2011. While Norway has agreed to contribute $1 billion to compensate Indonesia for a two-year moratorium on the issuance of logging permits, it has declined to contribute to the Ecuador fund because the fund is not yet covered by the UN’s REDD (Reducing Emissions from Deforestation and Forest Degradation) program. David Blair, Ecuador’s Novel Plan to Save Rain Forest, Financial Times, Jan. 4, 2011, at 4.
The Dutch Parliament has announced that it will hold hearings on January 26 to probe the activities of Royal Dutch Shell in Nigeria. The hearings, which long have been sought by opposition parties in the Dutch Parliament, will examine widespread oil pollution in the Niger delta. Shell blames most of the pollution on sabotage and oil theft. Guy Chazan, Shell Faces Query on Nigeria, Wall St. J., Jan. 4, 2011, at A10.
Last night I returned from San Francisco where I attended the Annual Meeting of the American Association of Law Schools. At the conference I counted at least five publishers of law books who were holding drawings for free iPads, perhaps an indication that publishers are starting to appreciate the coming shift toward e-readers for law school textbooks. I attended several terrific programs including panels on water law, what future environmental lawyers should learn in law school, and the constitutionality of the Affordable Care and Patient Protection Act. My wife and I also found time to do our own field trips to Alcatraz and a fabulous culinary tour of the Mission District of San Francisco (see www.foodieadventures.com). Photos of these can be viewed online at: http://gallery.me.com/rperci/100765.
Last week the Presidential Commission investigated the BP oil spill released a draft chapter whose conclusions sounded remarkably similar to those of previous investigations of BP accidents, as ProPublica’s Abraham Lustgarten reported. Lustgarten compared quotations from the draft chapter with those from a 2007 U.S. Chemical Safety and Hazard Investigation Board inquiry and an internal BP inquiry into an explosion at a BP refinery in Texas, and a 2003 Scottish Environment Protection Agency report into accidents that occurred in 2000 at BP’s refinery in Grangemouth, Scotland. See http://www.propublica.org/article/deja-vu-the-national-commission-report-on-bps-gulf-disaster-echoes-old-find Lustgarten concludes that BP does not seem to learn from its past mistakes.
As newly-elected officials take office, some are acting quickly to change environmental policies. Susana Martinez, the new governor of New Mexico who is a skeptic of climate change, blocked a regulation from taking effect that would have required 3% annual reductions in greenhouse gas (GHG) emissions in the state. She also blocked a regulation to control waste discharges from dairies and dismissed the members of the state’s Environmental Improvement Board. Felicity Barringer, 2 Environment Rules Halted in New Mexico, N.Y. Times, Feb. 6, 2011. Representative Darell Issa, the new chair of the House Committee on Oversight and Investigations, has written a letters to 150 business leaders asking them to identify regulations that should be relaxed or repealed. This is reminiscent of the Reagan Administration’s efforts to compile a regulatory “hit list” through its Vice Presidential Task Force on Regulatory Relief, chaired by George H.W. Bush. That task force also contacted business leaders, including many in the oil industry, and then pressed EPA to abolish limits on the lead content of gasoline. This effort badly backfired once its horrendous health consequences were appreciated and EPA ultimately was able to phase out leaded gasoline.
As reported in this blog on August 9, 2010, Ecuador has agreed to block development of massive oil reserves under its Yasuni National Park if it receives $3.2 billion in compensation over 13 years from the international community. Yasuni is one of the most biodiverse areas on earth with a single hectare of the park containing more species of trees than found in the U.S. and Canada combined. However, less than $2 million has been raised for the UN-administered trust fund to compensate Ecuador for not developing the oil. Ecuador’s government has announced that it will abandon its promise to block oil development if the fund does not receive $100 million by the end of 2011. While Norway has agreed to contribute $1 billion to compensate Indonesia for a two-year moratorium on the issuance of logging permits, it has declined to contribute to the Ecuador fund because the fund is not yet covered by the UN’s REDD (Reducing Emissions from Deforestation and Forest Degradation) program. David Blair, Ecuador’s Novel Plan to Save Rain Forest, Financial Times, Jan. 4, 2011, at 4.
The Dutch Parliament has announced that it will hold hearings on January 26 to probe the activities of Royal Dutch Shell in Nigeria. The hearings, which long have been sought by opposition parties in the Dutch Parliament, will examine widespread oil pollution in the Niger delta. Shell blames most of the pollution on sabotage and oil theft. Guy Chazan, Shell Faces Query on Nigeria, Wall St. J., Jan. 4, 2011, at A10.
Last night I returned from San Francisco where I attended the Annual Meeting of the American Association of Law Schools. At the conference I counted at least five publishers of law books who were holding drawings for free iPads, perhaps an indication that publishers are starting to appreciate the coming shift toward e-readers for law school textbooks. I attended several terrific programs including panels on water law, what future environmental lawyers should learn in law school, and the constitutionality of the Affordable Care and Patient Protection Act. My wife and I also found time to do our own field trips to Alcatraz and a fabulous culinary tour of the Mission District of San Francisco (see www.foodieadventures.com). Photos of these can be viewed online at: http://gallery.me.com/rperci/100765.
Sunday, January 2, 2011
U.S. GHG Regulations Take Effect, New Congress, Tea Party and Cancun "Astroturf", Beijing Auto Limits, Review of 2010 Developments (by Bob Percival)
Today (January 2) EPA regulations to control greenhouse gas (GHG) emissions from large new or modified sources (sources of more than 75,000 tons of carbon dioxide per year) take effect. The regulations are not horribly draconian -- they simply require these sources to use the best technology to control their emissions. Three weeks ago the U.S. Court of Appeals for the D.C. Circuit refused to stay the regulations, despite a legal challenge to them the court will hear. On December 30 Texas filed a new lawsuit against EPA in the D.C. Circuit challenging the agency’s decision to take over issuance of Clean Air Act permits in Texas response to the state’s refusal to implement the new GHG regulations. Texas previously had asked the U.S. Court of Appeals for the Fifth Circuit to block EPA’s takeover of permit-issuance authority in Texas, but the court denied the motion on December 29.
The new session of the U.S. Congress will convene this week with the Republicans taking control of the House of Representatives. In an op-ed on December 28, Congressman Fred Upton, the new chairman of the House Energy and Commerce Committee, decried EPA’s GHG regulations as “an unconstitutional power grad that will kill millions of jobs -- unless Congress steps in.” Fred Upton and Tim Phillips, How Congress Can Stop the EPA’s Power Grab, Wall St. J., Dec. 28, 2010. Upton proposes to have Congress “overturn” the regulations “outright,” but he recognizes that this will be politically difficult since the Republicans control only the House. His second best solution is “a sensible bipartisan compromise to mandate that the EPA delay its regulation until the courts complete” their review of them. Of course, as even Upton acknowledges, the regulations were issued by EPA in direct response to the Supreme Court’s decision in Massachusetts v. EPA, which makes his claim that they are “an unconstitutional power grab” ludicrous. I suspect that a major reason opponents of the EPA regulations are pressing for a stay is because the longer they remain in effect the harder it will be to ascribe to them the kind of dire consequences opponents currently are forecasting. When asked to predict what the biggest political surprise of 2011 will be, former Bush press secretary Dana Perino opined that Fred Upton will lead a successful charge to repeal the portion of the 2007 energy legislation he sponsored that mandates a phaseout of incandescent light bulbs by 2014.
For the second year in a row no new coal-fired powerplants commenced construction in the U.S. in 2010. While some environmentalists are hailing the death of coal as a source of new electric power generation in the U.S., coal-fired plants in Kansas, Illinois and Texas received permits last year and a project in Mississippi is about to begin construction. The nation’s largest generator of electric power, American Electric Power, has only one new coal-fired plant under construction, an “ultra supercritical” model that would meet the new EPA best technology standards. Steven Mufson, Coal’s Burnout, Washington Post, Jan. 2, 2010, at G1.
The co-author of Upton’s op-ed was Tim Phillips, president of Americans for Prosperity, an “astroturf” group founded by oil billionaire David Koch who helped spearhead the initiative to repeal California’s regulation of GHG emissions that California voters soundly defeated last November. On January 1 the Washington Post ran a profile of Ohio Tea Party activist Gena Bell who described how Americans for Prosperity gave her an all expense-paid trip to the Cancun climate summit last month. While Bell had looked forward to engaging in a genuine debate over climate change, she instead found herself “standing where she was told and smiling for the cameras” as a prop at rallies staged by the group. They gave her and other Tea Party activists they flew to Cancun t-shirts with the slogan “Bureaucrats Gone Wild” and had them hold a giant novelty check made out for $100 billion to mock proposals to help the developing world reduce GHG emissions. The article states that Bell found the experience “irritating” and doubted whether she would participate in similar events in the future. Amy Gardner, Tea Party at Turning Point as GOP Takes House Reins, Washington Post, Jan. 1, 2011, at A1.
With Republicans taking over the U.S. House of Representatives with many new Tea Party supporters, it would be nice for everyone to recall the issue that inspired the original Boston Tea Party: taxation without representation. If the Tea Party is true to these roots, its number one priority should be voting rights for the District of Columbia whose more than 601,000 residents have no voting representation in Congress. Wyoming, which has more than 18,000 fewer residents than D.C., is represented by two Senators and a Congressman. (Full disclosure: This issue particularly galls me since I have been a D.C. resident for more than 30 years since moving to Capitol Hill to clerk for Supreme Court Justice Byron White in 1979). Here’s a challenge: if Tea Party members want to demonstrate that they truly are not beholden to the Republican party and that they are loyal to the initial movement from which their name is taken, will a few brave souls step forward to champion D.C. voting rights, as Republican Senator Prescott Bush (father of one president and grandfather of another) and Republican President Eisenhower did to spur adoption of the Twenty-Third Amendment that at least gave D.C. electoral votes?
In an effort to combat horrendous traffic congestion, Beijing authorities have severely restricted the number of new automobiles they will license in 2011 to 240,000, about a third of the 750,000 licensed in 2010. Thus, instead of more than 2,000 new vehicles taking to the streets of China’s congested capital each day, only 657 will. The lucky licensees will be decided by lottery. During the first 11 hours of 2011 a total of 40,000 people applied for the lottery to receive new auto licenses. To deter Beijing residents from simply registering their cars elsewhere only cars licensed in Beijing will be allowed to enter the city center. China’s Administration of Taxation also increased the tax on small cars from 7.5% to 10%, eliminating a preferential low rate that had been designed to encourage the purchase of more fuel efficient vehicles.
With the arrival of 2011, it is time to look back on the top global environmental developments of 2010. Here is my list, in no particular order: (1) the BP oil spill in the Gulf of Mexico, (2) developments in transnational environmental tort litigation, including the continuing battle between Chevron and Ecuadoran plaintiffs, a Dutch court’s conviction of Trafigura, the Second Circuit’s Kiobel decision, and the Ninth Circuit’s Carijano decision permitting U.S. courts to hear a lawsuit against Occidental Petroleum for oil pollution in Peru; (3) the Chinese government’s more enlightened position on climate change and China’s push to become a global leader in green energy technology, (4) EPA’s development of GHG regulations and the failure of the U.S. Congress to enact climate change legislation, (5) the uneven, but determined European effort to transition to a greener energy infrastructure even as financial problems spurred cutbacks in renewable energy subsidies and France abandoned a planned carbon tax, (6) the Cancun conference building on Copenhagen’s recognition that a global, consensus multilateral agreement may no longer be a practical response to climate change, (7) burgeoning interest in the creation of specialized environmental courts in many countries, (8) the growing importance of sub-national environmental initiatives, including California’s program to reduce GHG emissions which is taking effect following voters’ overwhelming rejection of a referendum to repeal it, (9) surprising decisions in favor of environmental concerns in developing countries, such as the Costa Rican Administrative Litigation Court’s disapproval of Infinito Gold’s Crucitas gold mine, and (10) increased demands for transparency on the part of multinational corporations, particularly in extractive industries, as reflected in provisions in the Dodd-Frank legislation in the U.S. and Britain’s new Bribery Act.
The new session of the U.S. Congress will convene this week with the Republicans taking control of the House of Representatives. In an op-ed on December 28, Congressman Fred Upton, the new chairman of the House Energy and Commerce Committee, decried EPA’s GHG regulations as “an unconstitutional power grad that will kill millions of jobs -- unless Congress steps in.” Fred Upton and Tim Phillips, How Congress Can Stop the EPA’s Power Grab, Wall St. J., Dec. 28, 2010. Upton proposes to have Congress “overturn” the regulations “outright,” but he recognizes that this will be politically difficult since the Republicans control only the House. His second best solution is “a sensible bipartisan compromise to mandate that the EPA delay its regulation until the courts complete” their review of them. Of course, as even Upton acknowledges, the regulations were issued by EPA in direct response to the Supreme Court’s decision in Massachusetts v. EPA, which makes his claim that they are “an unconstitutional power grab” ludicrous. I suspect that a major reason opponents of the EPA regulations are pressing for a stay is because the longer they remain in effect the harder it will be to ascribe to them the kind of dire consequences opponents currently are forecasting. When asked to predict what the biggest political surprise of 2011 will be, former Bush press secretary Dana Perino opined that Fred Upton will lead a successful charge to repeal the portion of the 2007 energy legislation he sponsored that mandates a phaseout of incandescent light bulbs by 2014.
For the second year in a row no new coal-fired powerplants commenced construction in the U.S. in 2010. While some environmentalists are hailing the death of coal as a source of new electric power generation in the U.S., coal-fired plants in Kansas, Illinois and Texas received permits last year and a project in Mississippi is about to begin construction. The nation’s largest generator of electric power, American Electric Power, has only one new coal-fired plant under construction, an “ultra supercritical” model that would meet the new EPA best technology standards. Steven Mufson, Coal’s Burnout, Washington Post, Jan. 2, 2010, at G1.
The co-author of Upton’s op-ed was Tim Phillips, president of Americans for Prosperity, an “astroturf” group founded by oil billionaire David Koch who helped spearhead the initiative to repeal California’s regulation of GHG emissions that California voters soundly defeated last November. On January 1 the Washington Post ran a profile of Ohio Tea Party activist Gena Bell who described how Americans for Prosperity gave her an all expense-paid trip to the Cancun climate summit last month. While Bell had looked forward to engaging in a genuine debate over climate change, she instead found herself “standing where she was told and smiling for the cameras” as a prop at rallies staged by the group. They gave her and other Tea Party activists they flew to Cancun t-shirts with the slogan “Bureaucrats Gone Wild” and had them hold a giant novelty check made out for $100 billion to mock proposals to help the developing world reduce GHG emissions. The article states that Bell found the experience “irritating” and doubted whether she would participate in similar events in the future. Amy Gardner, Tea Party at Turning Point as GOP Takes House Reins, Washington Post, Jan. 1, 2011, at A1.
With Republicans taking over the U.S. House of Representatives with many new Tea Party supporters, it would be nice for everyone to recall the issue that inspired the original Boston Tea Party: taxation without representation. If the Tea Party is true to these roots, its number one priority should be voting rights for the District of Columbia whose more than 601,000 residents have no voting representation in Congress. Wyoming, which has more than 18,000 fewer residents than D.C., is represented by two Senators and a Congressman. (Full disclosure: This issue particularly galls me since I have been a D.C. resident for more than 30 years since moving to Capitol Hill to clerk for Supreme Court Justice Byron White in 1979). Here’s a challenge: if Tea Party members want to demonstrate that they truly are not beholden to the Republican party and that they are loyal to the initial movement from which their name is taken, will a few brave souls step forward to champion D.C. voting rights, as Republican Senator Prescott Bush (father of one president and grandfather of another) and Republican President Eisenhower did to spur adoption of the Twenty-Third Amendment that at least gave D.C. electoral votes?
In an effort to combat horrendous traffic congestion, Beijing authorities have severely restricted the number of new automobiles they will license in 2011 to 240,000, about a third of the 750,000 licensed in 2010. Thus, instead of more than 2,000 new vehicles taking to the streets of China’s congested capital each day, only 657 will. The lucky licensees will be decided by lottery. During the first 11 hours of 2011 a total of 40,000 people applied for the lottery to receive new auto licenses. To deter Beijing residents from simply registering their cars elsewhere only cars licensed in Beijing will be allowed to enter the city center. China’s Administration of Taxation also increased the tax on small cars from 7.5% to 10%, eliminating a preferential low rate that had been designed to encourage the purchase of more fuel efficient vehicles.
With the arrival of 2011, it is time to look back on the top global environmental developments of 2010. Here is my list, in no particular order: (1) the BP oil spill in the Gulf of Mexico, (2) developments in transnational environmental tort litigation, including the continuing battle between Chevron and Ecuadoran plaintiffs, a Dutch court’s conviction of Trafigura, the Second Circuit’s Kiobel decision, and the Ninth Circuit’s Carijano decision permitting U.S. courts to hear a lawsuit against Occidental Petroleum for oil pollution in Peru; (3) the Chinese government’s more enlightened position on climate change and China’s push to become a global leader in green energy technology, (4) EPA’s development of GHG regulations and the failure of the U.S. Congress to enact climate change legislation, (5) the uneven, but determined European effort to transition to a greener energy infrastructure even as financial problems spurred cutbacks in renewable energy subsidies and France abandoned a planned carbon tax, (6) the Cancun conference building on Copenhagen’s recognition that a global, consensus multilateral agreement may no longer be a practical response to climate change, (7) burgeoning interest in the creation of specialized environmental courts in many countries, (8) the growing importance of sub-national environmental initiatives, including California’s program to reduce GHG emissions which is taking effect following voters’ overwhelming rejection of a referendum to repeal it, (9) surprising decisions in favor of environmental concerns in developing countries, such as the Costa Rican Administrative Litigation Court’s disapproval of Infinito Gold’s Crucitas gold mine, and (10) increased demands for transparency on the part of multinational corporations, particularly in extractive industries, as reflected in provisions in the Dodd-Frank legislation in the U.S. and Britain’s new Bribery Act.
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