10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Monday, February 28, 2011

Global Law Conference, China's Historic UN Vote, Spanish Speed Limit, Oil Drilling in Congo Park, Walmart Bans PBDEs & GM Plantings (by Bob Percival)

On Friday February 25 I spoke at a symposium on “Global Law and its Exceptions” at the University of Washington School of Law in Seattle. The conference featured a terrific group of speakers who explored how global law is evolving in several fields, including constitutional law, corporate law, environmental law, administrative law, human rights, and family law. The symposium agenda is online at: https://www.law.washington.edu/cle/seminars/Global/agenda.pdf. I gave a presentation on “Global Law and the Environment,” and Professor Bill Rodgers responded to my presentation. The symposium was the brainchild of Professor Joel Ngugi who did an excellent job of framing the issues for discussion by proposing four ways to think about global law: legal harmonization, the transplant thesis (countries have always “borrowed” law from one another), the resistance thesis (that what’s happening is pernicious and should be resisted), and the emancipation thesis (that law is malleable and can be used for many ends).

Duncan Kennedy of Harvard then gave a keynote presentation. David Law of Washington University in St. Louis made a terrific presentation on global constitutional law, noting the high degree of borrowing in constitutional language (90 percent of constitutions have the same 9 rights and 70 percent the same 25 rights). He disputed the notion that Supreme Court judges from different countries are engaged in a cross-national “dialogue” and argued that citation of foreign sources by courts was largely a function of the extent to which judges had been trained in comparative law. Professor Frank Gevurtz of McGeorge expressed skepticism about global law, arguing that legal convergence occurs in cycles over time as corporate law tracks whatever fad is in vogue. There was a terrific audience of nearly 200, consisting mostly of lawyers, who generated a lively dialogue following the presentations. Papers prepared for the conference will be published in a symposium edition of the University of Washington Law Review. The University of Washington School of Law has a required first year course in Comparative and International Law.

The continued turmoil in Northern Africa and the Middle East is posing an immense challenge to global foreign policy. The unanimous vote by the United Nations Security Council to impose sanctions on Libyan leader Moammar Gadhafi and to refer his brutal repression of protests to the International Criminal Court represents an historic vote by China in favor of sanctions on another country for suppressing dissent. It is estimated that China has 30,000 citizens in Libya, which supplies 3 percent of China’s imports of oil. The temporary surge in oil prices last week that followed the shutdown of oil supplies from Libya spurred the government of Spain to lower that country’s national speed limit from 120 km/hour to 110 km/hour (from 74 to 68 miles per hours) in order to conserve gasoline.

A group of 41 members of the Parliament in the Democratic Republic of the Congo (DRC) are asking the government to redraw the boundaries of Africa’s oldest national park to permit oil exploration activities there. Virunga National Park is a World Heritage Site that is home to some of the famous mountain gorillas. But after Tullow Oil, a British company, discovered oil just west of the park in Uganda, Soco International and Dominion Petroleum have been pressing the DRC to grant them permission to drill in the park. Katrina Manson, Battle Over Oil in Congo National Park, Financial Times, Feb. 21, 2011.

Walmart continues to use its market power over suppliers to promote greener products. The company recently informed its suppliers that it would begin testing on June 1 to ensure that the products it carries do not contain polybrominated diphenyl ethers (PBDEs), a class of chemicals widely used as a flame retardant in a wide variety of products. Even though use of the chemical remains legal in the United States, studies have linked it to a variety of health problems. Last year EPA listed PDBEs as “chemicals of concern,” but it will take some time before the agency is able to regulate them, making Walmart’s action another example of voluntary private action to reduce risks to consumers. Lyndsey Layton, Wal-Mart Turns to “Retail Regulation” to Ban Flame Retardant, Washington Post, Feb. 27, 2011, at A4.

The Financial Times reported today that the size of land throughout the world planted with genetically modified (GM) crops increased by 10% in 2010 to 148 million hectares. This means that approximately 10 percent of all global cropland is now planted with genetically modified crops. Last year’s growth in GM crops represented the second largest growth since their commercial introduction in 1996.

My visit to Seattle coincide with that city’s lowest temperatures on record for this time of year. But I was delighted to get a chance to visit my brother and his family and to discover a wonderful boutique winery run by a lawyer that is making some of the best cabernets in Washington state. Tomorrow I am flying to Vermont to participate in Vermont Law School’s symposium on China’s Environmental Governance. I am looking forward to being reunited with China’s top environmental law scholars who will be participating in the symposium.

Monday, February 21, 2011

Reaction to Chevron/Ecuador Decision, US GHG Emissions Fall, Japanese Whale Hunt Ends Abruptly, House Rages Against the Environment (by Bob Percival)

An Ecuadoran court’s $8.6 billion judgment against Chevron for polluting the Oriente region of the Amazon received considerable press attention last week. I was interviewed by reporters from several publications including the Christian Science Monitor (from both Quito and Boston, see http://www.csmonitor.com/Environment/2011/0218/In-Ecuador-s-landmark-9-billion-judgment-against-Chevron-all-sides-unhappy), Bloomberg Business News (from San Francisco, see http://www.bloomberg.com/news/2011-02-14/chevron-to-appeal-adverse-judgment-in-ecuador-pollution-case.html), Greenwire (from D.C., see http://www.nytimes.com/gwire/2011/02/16/16greenwire-despite-86b-ruling-long-road-remains-for-chevr-74410.html), BBC World News Mundo (from London see http://www.bbc.co.uk/mundo/noticias/2011/02/110218_ecuador_chevron_financiamiento_rg.shtml), and the San Francisco Chronicle (see http://articles.sfgate.com/2011-02-16/business/28538735_1_small-ecuadoran-town-luis-yanza-pablo-fajardo/3). Protests were held at Chevron’s headquarters in San Ramon, California, while the plaintiffs in Lago Agrio appealed the judgment as too low and Chevron filed a 31-page request for clarification of the judgment.

Considerable press attention focused on the hedge funds providing financial assistance to the plaintiffs. This was the focus of an interview I gave to Scott Tong on American Public Radio’s “Marketplace” program (see http://marketplace.publicradio.org/display/web/2011/02/15/pm-a-long-long-legal-bet/). The hedge funds stepped in to provide the plaintiffs with funding to continue their litigation after the defendants opened up several new forums, making the case more expensive to litigate. I noted that if this is a case of David against Goliath, the hedge funds are providing David with a lot of additional stones, helping to level the playing field between the two sides.

Perhaps the most astonishing press “spin” on the case came from the editorial page of the Wall Street Journal, which on Feb. 15 declared in an editorial entitled “Shakedown in Ecuador” (see http://online.wsj.com/article/SB10001424052748703652104576121941625806096.html?mod=googlenews_wsj) that “The Ecuador suit is a form of global forum shopping, with U.S. trial lawyers and NGOs trying to hold American companies hostage in the world's least accountable and transparent legal systems.” The Journal editors have thrice before denounced the lawsuit, but what is astonishingly false about their “forum-shopping” claim is that the plaintiffs originally filed suit in New York federal court in 1993 and the case was dismissed in favor of the Ecuadoran forum at Chevron’s behest in 2002. I was disturbed enough by this falsehood that I wrote a letter to the Journal editors which will be published in tomorrow’s edition (see http://online.wsj.com/article/SB10001424052748704900004576152370171056008.html).

Last week the U.S. Environmental Protection Agency (EPA) reported that emissions of greenhouse gases (GHGs) declined in 2009 for the second year in a row. EPA estimated that they declined by 6 percent in 2009 due to reduced economic activity caused by the global financial downturn and a shift from coal to natural gas in electricity generation. Total U.S. emissions of GHGs were estimated to be 5.5 billion metric tons in 2009, below the 5.92 billion tons emitted in 2008 and the 6.12 billion tons in 2007. John M. Broder, Emissions Fell in 2009, Showing Impact of Recession, N.Y. Times, Feb. 21, 2011. However, U.S. GHG emissions were still 7.4% above their level in 1990, the Kyoto Protocol baseline.

Last week the Japanese whaling fleet cut short its annual whale hunt in the Antarctic in part out of frustration that an environmental group had been so successful in obstructing its whaling activities. Sea Shepherd Conservation Society disrupted the whale hunt, reportedly because it has acquired vessels that are faster than those used by the Japanese whalers. The United Kingdom last week launched prosecutions against criminal gangs that have been shipping toxic waste to developing countries in the guise of recycling. Most of the 30 prosecutions involve electrical waste sent to West Africa, while others involve used tires and household waste sent to Asia. UK Takes Action Against Toxic Waste Gangs, Financial Times, Feb. 19, 2011.

While many brave people in the Middle East and Northern Africa are holding “days of rage” to protest their authoritarian governments, last week the new Republican majority in the U.S. House of Representatives held its own “Week of Rage” directed against the Environment. By week’s end the U.S. House of Representatives passed an appropriations bill that cuts EPA’s budget by 30% while barring any use of funds for nearly all the agency’s most significant current initiatives. The funding cuts clearly are directed more at crippling protection of the environment than at saving money. Amendments added during the week bar EPA from using funds to implement regulation of GHG emissions, disposal of coal ash and wastes from mountaintop removal mining, mercury emissions from powerplants, and enforcement of the Chesapeake Bay cleanup. They also defunded NOAA’s proposed Climate Service, barred U.S. contributions to the Intergovernmental Panel on Climate Change, and suspended payments under the Equal Access to Justice Act that allows successful plaintiffs to recover attorney’s fees against government agencies who take positions that are not “substantially justified” in fighting citizen suits. The House also barred the use of funds to implement certain energy efficiency measures, including the phaseout of incandescent lightbulbs. A big battle is likely in the Senate and a possible government shutdown looms if no compromise is reached between the two houses of Congress. Consider whether some of these measures, if enacted, could open the U.S. to charges that it is not carrying out commitments made in trade agreements to implement and enforce its environmental laws.

BP’S $20 billion settlement fund, far larger than the magnitude of the House’s environmental budget cuts, was the subject of controversy last week. In comments filed last week BP criticized fund administrator Kenneth Feinberg for providing settlements that it claims are too generous in calculating future losses. The fund has paid out $3.5 billion to settle interim claims and 100,000 people are now seeking final settlements. Final payments can commence after a two-week comment period on Feinberg’s proposed settlement criteria ends on March 2. BP’s comments can be viewed online at: www.gulfcoastclimsfacility.com

Monday, February 14, 2011

Ecuador Hits Chevron With $8.6 Billion Judgment, U.S. Court Blocks Enforcement, Namibia Coast a National Park, Deja Vu in U.S. House (by Bob Percival)

After nearly two decades of litigation that began in the U.S. in the early 1990s, plaintiffs from the oil-contaminated Oriente region of Ecuador today won a $8.6 billion judgment against the Chevron Corporation in a trial court in Lago Agria, Ecuador. The plaintiffs claim that they have been harmed by pollution caused when Texaco, which Chevron acquired in 2001, developed oil fields there at the request of the government of Ecuador during the 1970s and 1980s. The judgment includes $5.39 billion to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat people affected by the pollution, $600 million to restore polluted water sources, $200 million to help native species recover, $150 million supply water to the community from unpolluted sources, and $100 million to create a community cultural reconstruction program. A Chevron spokesman denounced the judgment as “illegitimate,” “unenforceable,” “the product of fraud,” and “contrary to the legitimate scientific evidence.”

The judgment was widely anticipated, and six days before it was issued Chevron won a temporary restraining order from a federal district court in New York prospectively blocking enforcement in any court in the world of any judgment from the Ecuadoran court. The order is premised on Chevron’s allegations that the plaintiffs and their lawyers are engaged in a racketeering conspiracy to shake down the company. At a hearing in New York on February 8, Chevron alleged that lawyers and experts for the plaintiffs had doctored evidence. Ironically, Texaco could have had the lawsuit decided by courts in the U.S. during the early 1990s, but the company insisted that Ecuador was a more convenient forum. The federal court in New York dismissed the case on the condition that the company accept the jurisdiction of the courts of Ecuador. After a change of government, Ecuador no longer became the friendly forum Chevron had anticipated. The battle is likely to continue as the judgment is appealed in Ecuador and the parties fight over its enforceability in countries where Chevron has assets. Texaco (before being acquired by Chevron) pulled out of Ecuador after settling claims against it with the government.

Namibia just became the first country in the world to set aside its entire coastline as a national park. The park, which extends along all 976 miles of the nation’s coastline, covers an area larger than the entire country of Portugal. On Friday some of my environmental law students are leaving for Namibia to participate in Maryland’s new international clinic. While in Namibia they will be working on water rights issues under the direction of Professor Barbara Olshansky, a well known human rights lawyer. Professor Olshansky’s first major victory as an environmental lawyer came in 1993 when she prevailed over Floyd Abrams in the U.S. Court of Appeals for the Ninth Circuit while defending a California anti-greenwashing law defining what materials can be called recycled against a First Amendment challenge brought by advertising companies.

Last week the Committee on Energy and Commerce of the Republican-controlled U.S. House of Representatives held hearings on legislation to strip EPA of authority to regulate GHG emissions. The legislation is entitled “The Energy Tax Prevention Act of 2011” (Does that imply that something can be a tax even if it is not debated as such, exactly the opposite of what opponents of the constitutionality of the health care mandate are saying?).” EPA Administrator Lisa Jackson sparred with committee Republicans over the value of Clean Air Act regulations, including the agency’s plan to regulate emissions of greenhouse gases (GHGs). The committee’s website displays a banner reading: “In a power grab that rivals ObamaCare in audacity and job-killing effects, the EPA has claimed unto itself the power to regulate carbon dioxide, a byproduct of human and animal respiration and the basis for all life on earth, as a pollutant.” It seems the committee has forgotten that it was the U.S. Supreme Court in its April 2007 Massachusetts v. EPA decision that ruled that CO2 was a pollutant that must be regulated under the Clean Air Act if it endangers public health or the environment.

After consulting with industry groups, but not environmentalists, House Republicans have unveiled a list of “job-killing” regulations that sounds oddly reminiscent of the list prepared by President Reagan’s Task Force on Regulatory Relief exactly 30 years ago. One of the regulations targeted by the Reagan Task Force was EPA’s limit on the lead content of gasoline, which if relaxed would have caused enormous damage to public health by dramatically increasing lead poisoning. The Reagan effort ultimately backfired because it was not a serious effort to reform regulation, but rather a single-minded effort to reduce costs to industry, regardless of the benefits of such regulations. This was illustrated by the lead regulation which ultimately was strengthened prior to lead additives being banned from gasoline entirely, a measure now being adopted throughout the world.

On Monday February 7 I spoke at a program on “Free Market Environmentalism” sponsored by the Maryland chapter of the Federalist Society. Speaking for the Cato Foundation was my former classmate Doug Bandow. I noted that incorporating market mechanisms into some environmental regulations had proven useful, such as the SO2 emissions trading program in the Clean Air Act and catch quota for managing fisheries, but that the free market vision of going back entirely to the common law was a fantasy. Doug did an excellent job of representing the views that Cato often espouses, including cutting environmentally damaging subsidies, on which we could agee. I was surprised though that he was still bringing up the 1989 Alar controversy as an example of environmental alarmism when it illustrates how informed consumers more quickly forced the removal of an unreasonably dangerous pesticide from the market than regulators could.

Monday, February 7, 2011

Chevron RICO Suit, Rehearing Denied in Kiobel, Legal Victory for Chinese Organization, India Steel Mill Approved (by Bob Percival)

On February 1 the Chevron Corporation filed a Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit against the plaintiffs, lawyers and environmental consultants for the plaintiffs in the Ecuador litigation over oil pollution of the Oriente region. The lawsuit was filed in federal district court for the southern district of New York. Chevron charges the defendants with a conspiracy to commit fraud by bringing “sham litigation” to extort money from Chevron by seeking damages for oil pollution of the Oriente region of Ecuador. Chevron is asking the court to declare that any judgment against it by the Ecuadoran court will be the result of fraud and therefore unenforceable.  Chevron also is asking the defendants to pay its litigation costs. A copy of Chevron’s complaint is available online at: http://www.scribd.com/doc/48005141/2-1-11-Chevron-RICO-Filing. RICO litigation usually is brought against suspected members of organized crime. While I am familiar with SLAPP suits, Chevron’s litigation tactics seem to rise to a whole new level. What a contrast between Chevron’s litigation tactics in this case and its current multi-million dollar “We Care/We Agree” advertising campaign, which is parodied in an ad reproduced on my parallel website at: http://www.globalenvironmentallaw.com.

On Friday February 4, the U.S. Court of Appeals split 5-5 on the question of whether the court should rehear en banc the Kiobel case that in September produced a 2-1 panel ruling that corporations can never be held liable for violations of international law and thus are immune from suit under the Alien Tort Statute (see Oct. 4, 2011 blog post). Thus, by a single vote, the court denies a rehearing en banc, meaning that the U.S. Supreme Court is the only remaining avenue for the plaintiffs to challenge the panel decision. Of some significance should be the fact that Judge Katzmann, whose decision in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), was cited by the Kiobel majority, filed a separate dissent from the denial of rehearing disagreeing with the Kiobel majority’s interpretation of this decision.

Steve Wolfson, on of EPA’s top international attorneys, informs me that on December 30, 2010, the people’s court of Qingzhen city in the Guizhou province of China granted the All China Environment Federation an important legal victory in a lawsuit against a polluting paper mill. The law suit is significant because it is the first time that Chinese courts have allowed a lawyer’s organization to bring a successful action to redress harm from pollution. The Chinese court found that the paper mill had illegally discharged pollutants into a river and ordered that the mill be closed. The U.S. has recognized the standing of organizations to sue on behalf of individual members, which survived by a single vote an effort by the Reagan administration to abolish organizational standing in United Automobile Workers v. Brock, 477 U.S. 264 (1986).

EU authorities have recovered 7.5 million Euros worth of carbon dioxide emissions allowances stolen from the EU’s Emissions Trading System (ETS) in a hacking attack that originated in Austria. Following the attacks, which resulted in the theft of 29 million Euros worth of allowances spot trading in the EU ETS has been suspended since January 19. Flemming Emil Hansen, Authorities Recover Stolen Emission Credits, Wall St. J., Feb. 1, 2011. The recovery sets the stage for the reopening of EU carbon trading markets this week. Markets in Germany, France, the Netherlands and the U.K are expected to be the first to reopen trading. The EU ETS covers 12,000 steel, cement, and power plants and oil refineries that account for nearly half of the EU’s emissions of greenhouse gases. John W. Miller, Europe Emissions Markets Set to Reopen After Thefts, Wall St. Journal, Feb. 2, 2011, at A14.

On Monday January 31, the Indian Ministry of Environment and Forests approved construction of a long-delayed port and steel plant to be constructed by South Korea’s Posco in the Indian state of Orissa. The $12 billion project will be the largest single direct foreign investment in India to date. While approving the project, Jairam Ramesh, India’s environment minister, stressed that “laws on the environment and forests must be implemented seriously.” Environmentalists, tribes, and villagers who have been opposing the project reacted with anger to the decision. They have filed a lawsuit, which is still pending, to stop the project. Vikas Bajaj, India Approves $12 Billion South Korean Steel Mill Project, N.Y. Times, Jan. 31, 2011.