Black Boxes & bin Laden, Faster Arctic Melting, Nuclear Adviser Quits, Post-Rapanos Guidance, Challenge to Calif. Waiver Rejected (by Bob Percival)

Just hours before the momentous announcement on Sunday May 1 that Osama bin Laden had been killed by U.S. Special Forces, it was learned that submarines scouring the depths of the Atlantic Ocean finally had located a flight recorder from Air France Flight #447 that crashed on June 1, 2009 on a flight from Rio to Paris. Both events demonstrated that with enough persistence and effort, humans now can locate virtually anything or anyone even in a remote part of the planet (or in bin Laden’s case in the shadow of Pakistan’s West Point). After midnight my children headed downtown to participate in the spontaneous celebration outside the White House. They reported that it was almost entirely young people who were eager to dismiss uninformed claims that their generation had been too young to understand 9/11.

Tomorrow the Arctic Monitoring and Assessment Program (AMAP) will report that Arctic glaciers and ice caps have been melting so fast during the last six years that they may contribute 2 to 3 feet more to sea level rise by 2100 than predicted by the Intergovernmental Panel on Climate Change (IPCC). Despite great uncertainty surrounding the estimates, their projection that sea level will rise between 35 to 63 inches by 2100 dwarfs the IPCC’s 207 project of sea level rise between 7 and 23 inches. AMAP found that average annual temperatures over the Arctic have increased by twice as much as in the rest of the world.

The fallout from the Japanese earthquake and tsunami and the resulting Fukushima Daiichi nuclear accident continues. Last week University of Tokyo Professor Toshiso Kosako, a special adviser to the Japanese government on nuclear safety issues, abruptly resigned to protest the government’s handling of the crisis. Professor Kosako argued that it still was difficult to tell who was in charge of dealing with the crisis. He maintained that Japanese government agencies “have ignored the laws and have only dealt with the problem at the moment.” William Sposato, Nuclear Adviser Quits Over Handling of Crisis, Wall Street Journal, April 30, 2011. Sergei V. Kiriyenko, director of Rosatom, the Russian state nuclear company, last week proposed the creation of an international framework for regulating nuclear power and notifying other countries of serious accidents that may cause transboundary releases of radiation. Russia plans to present the proposal at a meeting of the Group of 8 in France later this year. Andrew E. Kramer, Russia Is Set to Propose Strict Rules for Reactors, N.Y. Times, April 29, 2011, at B6.

Last week the U.S. Environmental Protection Agency released guidance explaining how it intends to interpret its federal jurisdiction over “waters of the United States” in light of the U.S. Supreme Court’s confusing 4-1-4 split in Rapanos v. United States. Rapanos, which was decided in June 2006, has caused enormous confusion because four Justices accepted the Army Corps of Engineers’s long-standing practices for defining “waters of the U.S.,” four Justices adopted a dramatically narrower construction of the term, and Justice Kennedy enunciated a new “substantial nexus” test that none of the other Justices accepted. Because it is a guidance document, rather than a rule, it is unlikely that it can be challenged directly in court, though its application can be challenged when disputes arise in the future over the scope of federal jurisdiction over wetlands. The document, on which EPA is soliciting public comment, is available online at: http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf

On Friday April 29, the U.S, Court of Appeals for the District of Columbia rejected a legal challenge to EPA’s granting of a waiver to the state of California to adopt controls on greenhouse gas emissions from motor vehicles. The court ruled that the National Automobile Dealers Association and the U.S. Chamber of Commerce lacked standing to challenge the waiver because it did not affect them directly. The California standards will require more fuel efficient vehicles, but national automobile manufacturers did not challenge it.

This morning I spoke on a panel on "The Role of Judicial Settlements in Driving Rulemaking" at a conference in Washington D.C. sponsored by the ABA's Section on Administrative Law and Regulatory Practice. John Cruden, Deputy Assistant Attorney General for the Environment and Natural Resources Division of the U.S. Department of Justice, explained the department's long-standing settlement policies. James Nutt from the South Florida Water Management District described legal challenges before the 11th Circuit to a settlement agreement that governs the cleanup of the Everglades. Drawing on a 24-year old article I wrote for the University of Chicago Legal Forum, I focused on the historical background of disputes over the use of consent decrees that originated during the Reagan administration in March 1986 when Attorney General Edwin Meese issued the "Meese Memorandum."

Next Monday I am flying to Beijing to give guest lectures at Shandong University and Ningbo University. It will be my first trip to China since last June, the longest I have gone without visiting that country in more than six years.