From March 23-26 the American Society of International Law (ASIL) held its annual conference in Washington, D.C. Due to a host of other commitments I only was able to attend a few sessions on Friday March 25, but they were very worthwhile. I attended a great session on “Harmony and Dissonance in Extraterritorial Regulation,” followed by a terrific session on “International Law and Liability for Catastrophic Environmental Damage.” The speakers in the latter session included Tulio Treves from the International Tribunal for the Law of the Sea, Alan Boyle from Edinburgh University, Peter Sand from the University of Munich, Monika Hinteregger from the University of Graz, and Gunther Handl from Tulane University. The speakers were highly critical of the state o international law on liability for transboundary environmental harm, a subject on which I have been writing recently. Even though the nuclear accidents in Japan are commanding public headlines, the speakers focused largely on the BP oil spill in the Gulf of Mexico.
Treves noted that although the International Seabed Authority had not required a precautionary approach in its Regulations on Prospecting and Exploration for Polymetallic Nodules, it was now moving in that direction. Boyle observed that the International Court of Justice (ICJ) in its Pulp Mills decision established that the primary obligation of nations under international law in regulating private enterprises to prevent transboundary harm essentially is a due diligence requirement that does not make states guarantors against such harm. However, he concluded that in light of he extensive evidence of federal regulatory failures concerning deepwater drilling in the Gulf, the United States was extremely lucky that the spill was largely confined to U.S. waters. Handl noted that Mexican states have filed claims in Texas federal court for damages to fisheries and tourism due to the spill. He also noted that the U.S. was lucky that it was BP who was responsible for the spill, since many companies engaged in offshore drilling are thinly capitalized and would be unable to afford the level of compensation BP will have to pay. He noted that Indonesia has sued Australia over the Montara oil platform blowout in 2009 and that the International Maritime Organization (IMO) wants to negotiate a new international liability regime for oil spills. The speakers seemed to think that a new global liability regime was necessary, though they questioned whether the IMO is the appropriate organization for developing it.
When asked about the decades-long efforts by the International Law Commission (ILC) to formulate principles of international law applicable to transboundary environmental harm, the panelists noted that the ILC was deeply conservative and largely attempted to restate existing law without advancing liability standards. However, the ILC’s effort was helpful to the ICJ in its Gabcikova decision. Professor Hinteregger discussed the European Commission’s Directive 2004/35/CE on Environmental Liability. She argued that it turned out totally different from what initially was expected because it established a public law regime of liability rather than seeking to influence the development of private civil law. The directive is very limited, focusing on reimbursing states for costs they incur for preventive and remedial measures, while not developing the law applicable to compensation for harm to private parties. Peter Sand concluded the presentations by discussing the work of the United Nations Compensation Commission for Iraq’s invasion of Kuwait, noting that it had made the largest award for environmental harm that actually was paid - more than $5 billion. He emphasized that the Commission had been a pioneer in awarding damages for harm to ecosystem services.
On Wednesday March 23 Maryland’s Environmental Law Program held its Eighth Annual Environmental Law Film Awards Ceremony. The ceremony presented the coveted “Golden Tree” awards in ten categories to students who made films in my Environmental Law class last fall. The film “Silent Running,” a Lego-based animated remake of the 1972 first-ever environmental sci-fi film won awards for Best Picture, Best Use of Humor, and Best Special Effects. The film was made by law students Ovais Anwar, Becca Brown, Mike Spinelli, and Matt Standeven. Awards for Best Acting and Best Sound were given to the film “The Story of the Patapsco,” which examined the history of efforts to protect Maryland’s Patapsco River from pollution. The film was made by Luis Diaz, Andrew Goldman, Jacob Holtz, and Esther Houseman. The film “Don’t Jump in the Harbor” by Matt Peters and Christina Gubitosa won the award for Best Cinematography. The Golden Tree for Best Interviews went to “Go Beyond,” a film describing how a Baltimore couple became part of BP’s “Beyond Petroleum” advertising campaign. The film was made by Amalia Pleake-Tamm, Steven Isbister, and Peter Hogge. Since Peter is working in Maryland International Clinic in Namibia, the award ceremony was taped for him.
The Golden Tree award for Best Music went to the film “Trashy Mermaid,” made by Nathan Horne, Natasha Mehu, Emily Estrada, and Ajoke Agboola. The film used the theme song from “The Little Mermaid” to examine the dangers of plastic pollution in the oceans. The Golden Tree for Most Educational film went to Corin Vick’s “Geoengineering,” which explored engineering proposals to slow the pace of climate change. A Special Judge’s “Ken Burns” Award for Best Panning over Still Photos went to “Oysters in the Chesapeake Bay,” a film by Mike Adams, Hajrah Ahmad, Kasia Fertala, and Justine Moreau.
The Environmental Law Program is grateful to our independent panel of judges who voted on the Golden Tree awards. This year the panel consisted of Maryland Law faculty members Taunya Banks, Danielle Citron, Kathleen Dachille, and Kathy Vaughns, librarian Jill Smith, Yale World Fellow Kala Mulqueeny, Shanghai Roots and Shoots official Zhenxi Zhong, former Fulbright researcher Mary O’Laughlin, and youth judges Dominic Dachille and Richard Percival.
On Friday morning I attended a book launch at Resources for the Future for The Reality of Precaution, edited by Jonathan B. Wiener, Michael D. Rogers, James K. Hammitt, and Peter H. Sand. The book is the culmination of a decade-long project to assess whether European risk regulation is really more precautionary than U.S. regulation, as many people have argued. It presents numerous case studies of regulation on both sides of the Atlantic Ocean, and concludes that the evidence generally does not support the prevailing thesis. The book is a wonderfully valuable addition to the growing literature on global environmental law. I have argued that the precautionary principle is widely misunderstood by its critics (particularly Cass Sunstein) as requiring extreme levels of precaution when it actually says nothing about how precautionary regulatory policy should be. While this study’s thesis may seem to assume that Europe’s more explicit embrace of the principle should render its risk regulation policies more precautionary than such policies in the U.S., its conclusions seem to confirm my argument that this need not be the case.