EPA GHG Riders Deleted in Budget Compromise, ABA Int'l Section: India & China, Texas Senate Seeks to Bar Climate Change Suits (by Bob Percival)

Faced with the specter of a shutdown of the U.S. government at midnight last Friday, a last-minute compromise was reached that continued funding for a week in return for a promise of $38 billion in overall budget cuts. Fortunately the Obama administration insisted on the deletion of “policy riders” adopted by the House that would have barred EPA from regulating emissions of greenhouse gases (GHGs). Although EPA still faces the prospect of significant budget cuts, President Obama has made it clear that he will veto legislation that includes similar policy riders. Separate legislation to amend the Clean Air Act to bar EPA from regulating GHGs (deceptively titled the “Energy Tax Prevention Act”) passed the House last week by a vote of 255 to 172 with the support of 19 Democrats. An effort to get the Senate to approve similar legislation on Friday fell ten votes short of the 60 votes needed to avert a filibuster. President Obama has promised to veto such legislation.

This week the section on International Law of the American Bar Association (ABA) held its annual Spring Meeting in Washington. On Thursday April 7 I was on a panel on “Evolution of the Environmental Rule of Law in China and India.” The panel was moderated by former EPA General Counsel Roger Martella. Jay Pendergrass from the Environmental Law Institute (ELI) and Stanford professor Armin Rosencranz discussed the state of environmental law in India. They noted that despite a burst of judicial activism on behalf of the environment by the Supreme Court of India during the 1990s, development interests now are prevailing in most environmental conflicts in the country. The legal system works notoriously slowly in India and enforcement of environmental law has not been a high priority as the country pursues rapid development. India’s Minister of Environment and Forests Jairam Ramesh has made a splash by temporarily halting certain projects for failure to comply with India’s environmental laws. These include the Lavasa project, India’s first planned hill city. However, most of these projects ultimately will be completed, as is occurring with the Posco steel mill. There has been hardly any public interest litigation in India in the last decade, although the Supreme Court of India retains continuing jurisdiction over forest management to implement its 1995 Godavarman decision.

Tseming Yang described the structure of the Chinese legal system and Chinese environmental laws. I discussed five developments in Chinese environmental policy: (1) Increasing awareness of the need to combat climate change, as reflected in the 12th Five Year Plan the government adopted last month, (2) The growth of environmental courts in the provinces, (3) civil society initiatives to encourage multinational companies to “green” their supply chains in China, (4) increasing production and consumption of asbestos in China despite the trend in the developed world to ban its use, and (5) the possibility that Chinese companies may become targets of transnational litigation over their resource extraction practices in Africa and South America.

I also noted that China and India are relying heavily on construction of nuclear powerplants to supply their future energy needs. China is beginning construction of 27 reactors and has 50 more in stages of planning. India has five under construction and 18 more in planning stages. Together the two countries account for more than 60 percent of new nuclear construction (37 of 60 plants under construction and 68 of 109 reactors in the planning stages worldwide). Max Colchester & Liam Moloney, Japan Crisis Dims Nuclear Plans, Wall St. J., March 30, 2011, p. A14. While both countries have indicated that they do not expect the Japanese nuclear accidents to affect their energy plans, China has temporarily suspended licensing and ordered a safety review. Last week Indian Minister of Environment and Forests Jairam Ramesh conceded that the possibility of a tsunami had not been considered in connection with planning for the Jaitapur nuclear power project to be constructed on the coast of the Arabian Sea in Maharastra state.

Copies of materials prepared for the Thursday sessions are available online at: http://www2.americanbar.org/calendar/section-of-international-law-2011-spring-meeting/Pages/Thursday.aspx. (Links to the panel’s materials can be found under the 2:30-4:00pm Thursday time slot).

On Tuesday April 19 the U.S. Supreme Court will hear oral argument in a climate change nuisance suit brought by several states against utilities with large coal-fired powerplants. The Court’s decision in American Electric Power v. Connecticut could have a major impact on the future of federal common law nuisance litigation. Meanwhile the Texas Senate voted last week to bar state common law nuisance suits based on emissions of GHGs. SB 875 would create an affirmative defense for anyone subject to such litigation so long as they are in compliance with their existing permits for emissions of air pollutants. The bill does not cover emissions that create a “noxious odor”.