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

Sunday, June 26, 2011

INECE Conference, Chilean Dams, Rotterdam COP-5, Asbestos Use in Asia (by Bob Percival)

On Friday I returned to D.C. after spending the week in Whistler, British Columbia at the 9th Conference of the International Network for Environmental Compliance and Enforcement (INECE). The conference was a remarkable gathering of nearly 200 environmental enforcement officials and NGO representatives from 46 countries. One could see visible evidence of the growing networks that are forming to enhance coordination of environmental enforcement throughout the world. One theme that was discussed was how reductions in government enforcement budgets have increased the importance of global cooperation among regulators and NGOs as agencies seek to employ new and creative means for improving environmental compliance. Criminal enforcement of environmental laws is still in its infancy in many countries, but the U.S. EPA recently hosted enforcement officials from 11 countries for a conference on the use of forensic evidence in the prosecution of environmental crimes. Other themes emphasized by presenters included the importance of reducing bureaucratic barriers to the transboundary sharing of information among enforcement officials and the need for environmental officials to work closely with Customs and border enforcement personnel. I served as the rapporteur for a session on the role of academic institutions in environmental compliance and enforcement networks. Photos from my trip to Vancouver and Whistler are available online at:  http://gallery.me.com/rperci#100866.

As mentioned last week (see June 21 blog post), the Chilean government’s plan to build the $3.2billion HidroAysén hydropower project involving the construction of five dams in Patagonia has been the subject of considerable public protest in that environmentally-conscious country. A Chilean appeals court has now blocked the project on the ground that the government commission that approved it had not adequately considered its environmental impact.

On June 22 the International Energy Agency, a consortium of oil-consuming countries, announced that it would release two million barrels of oil per day during the month of July from reserves maintained by member countries. Half of this 60 million barrels of oil will come from the U.S. Strategic Petroleum Reserve. Members of the Organization of Petroleum Exporting Countries (OPEC) decried the move as an unwarranted interference with oil markets, an ironic comment from a cartel. The IEA argued that its move was justified by the disruption of oil exports from Libya due to the continuing conflict there.

The Chinese government reportedly suspended an expected $4 billion purchase of aircraft by Hong Kong Airlines from Airbus that was to be announced this week at the Paris Air Show. The reason? -- China’s displeasure with the EU’s insistence that beginning in January all airlines flying to EU countries take part in the EU’s carbon emissions trading scheme. Daniel Michaels, China Trips Up Major Airbus Deal, Wall St. J., June 25-26, 2011, at B3. On July 5 the European Court of Justice will hear a lawsuit by a group of U.S. airlines challenging the plan, which the EU had hoped would spur other countries to adopt similar plans.

Last week the fifth conference of the parties to the Rotterdam Convention on Prior Informed Consent met in Geneva. India’s representatives surprised the conference by announcing that they had reconsidered their opposition to listing chrysotile asbestos as an Annex III hazardous substance. Although Canada’s representatives reportedly acknowledged the growing scientific consensus concerning the hazardous nature of chrysotile asbestos, they blocked the move to list it in Annex III. Only 450 people continue to be employed in mining asbestos in Canada, but there are plans to expands the Jeffrey Mine to meet increase demand for exports to India. Sarah Schmidt, Canada Concedes Science Against Asbestos Is Sound, Vancouver Sun, June 24, 2011, at B1. A study published in this month’s journal of the Asian Pacific Society of Respirology estimates that asbestos-related deaths will surge in Asia during the next two decades. Although Japan and South Korea have banned the use of asbestos, use of the deadly susbstance is growing in India and China. As a result, Asia now accounts for 64 perent of all asbestos use in the world. Giang Vinh Le, Ken Takahashi, Eun-Kee Park, Vanya Delgermaa, Chulho Oak, Ahmad Munir Qureshi, Syed Mohamed Aljunid, Asbestos Use and Asbestos-Related Diseases in Asia: Past, Present and Future. Respirology, June, 2011.

Monday, June 20, 2011

Supreme Court Decides Climate Case, INECE Conference, Little Progress at Bonn, China Workshop (by Bob Percival)

Just 90 minutes ago the U.S. Supreme Court announced its decision in American Electric Power v. Connecticut. In a unanimous opinion by Justice Ginsburg the court reverses the decision by the U.S. Court of Appeals for the Second Circuit. Here is my early take on the decision. (1) Environmentalists dodged a bullet - by a 4-4 vote the Court affirms that courts have the constitutional authority and jurisdiction to hear common law nuisance suits by states seeking to address environmental problems.  This will be a huge disappointment to industry groups who hoped the Court would declare climate change to be either a nonjusticiable political question or that the states lacked standing to sue over it. Justice Kennedy's vote likely was crucial here, because Justice Sotomayor had recused herself from the case.  (2) While the Court unanimously dismisses the climate change case brought by Connecticut, it does so on the narrowest possible grounds - that EPA is already working to regulate greenhouse gas emissions and that it has the clear authority to do so.  The latter point reaffirms the Court's narrow 5-4 holding in its 2007 decision that prompted EPA to regulate greenhouse gases. (3) The Court is careful to say that it is not deciding whether the federal Clean Air Act law displaces state common law actions, so actions like Connecticut's can still for now be brought in state court. It is a pleasant surprise that Justice Ginsburg, the Justice most sympathetic to environmental concerns, was assigned the opinion in this case. The outcome is somewhat of a victory for environmentalists, particularly in light of the gloomy forecasts following the oral argument. A copy of the Court’s decision is available at: http://www.supremecourt.gov/opinions/10pdf/10-174.pdf

Right now I am in Whistler, British Columbia for the 9th conference of the International Network for Environmental Compliance and Enforcement. Environmental enforcement officials and NGO representatives from more than 40 countries are here. The conference opened last night with a wonderful welcome from the Chief of the Squamish Nation, Gibby Jacobs, who spoke of the importance of environmental citizen suits to protecting native land. “If we have a right to the fish, the fish have a right to clean water,” he observed. He also spoke about how his tribe used a threat of direct action to preserve 1200 year old trees from being cut down. Brazilian Supreme Court Justice Antonio Benjamin followed with another inspiring talk in which he highlighted next June’s Rio+20 conference and asked people to dream of what it might be possible to accomplish during the next twenty years. Prior to arriving in Whistler, my wife and I spent two days in Vancouver where I introduced her to some of my favorite haunts from my summers teaching at UBC. Yesterday morning we kayaked from English Bay to Third Beach and then hiked through the rainforest at Stanley Park. There are lots of boarded-up windows in downtown Vancouver from the riot that occurred after the Canucks lost in Game 7 of the Stanley Cup. What is really inspiring, however, is that every inch of the plywood is now covered with expressions of opposition to the rioters, something that seems to have really mobilized the community.

On Friday two weeks of global climate negotiations in Bonn ended with little progress. Although some progress was made on technical issues such as carbon trading mechanisms, slowing deforestation and management of the global climate fund, the deadlock over commitments to reduce emissions continued. The next Conference of Parties (COP-17) to the UN Framework Convention on Climate Change will be held in Durban, South Africa from Nov. 28 to Dec. 9.

The decision by the government of Chile last month to approve a plan to build a large hydroelectric power project (HidroAysén) in a pristine area of Patagonia has sparked large environmental protests throughout Chile. Alexei Barrionuevo, Plans for Hydroelectric Dam in Patagonia Outrages Chileans, N.Y. Times, June 16, 2011. While the government argues that hydropower is the best option for fulfilling the country’s expanding demand for electricity, the environmental movement counters that Chile has done very little to encourage improved efficiency in energy use and renewables like geothermal power.

From June 13-15 the University of Maryland Environmental Law Program conducted an environmental law workshop for a delegation of Chinese environmental professionals who visited Maryland (see June 12 blog post). I presented lectures on the history of environmental law, pollution control law, and natural resources and biodiversity protection law. My colleague Jane Barrett gave terrific lectures on environmental enforcement, both civil and criminal. Our alum Andrew Gohn who is the Clean Energy Program Manager for the Maryland Energy Administration walked the group through the steps involved in developing offshore wind energy projects. Nat Keller gave a great lecture on the history of land use regulation in the U.S. We also had a fascinating session on the use of video advocacy by environmentalists presented by Jill Smith, Maryland’s Research and Instructional Technology Librarian, who made a short film to illustrate her lecture. Short presentations also were made on emerging issues in environmental law, including hydraulic fracturing, transnational liability litigation, NEPA and climate change, fisheries management, and control of nonpoint pollution.

I am delighted to report that the Kickstarter project mentioned in my May 23 blog post succeeded in raising the $60,000 needed to build an instructional kitchen for a D.C. public elementary school. Last Wednesday, the day of the deadline, more than $27,000 poured in to put the project over the top thanks in large part to the last-minute support from world famous chef José Andrés who made both a substantial contribution and an appeal to his 31,000 Twitter followers. I am amazed by the power of social media to mobilize 470 people from as far away as Australia to fund this project.

Sunday, June 12, 2011

Romney Rejects Climate Denial, EU Reaffirms Airline Limits, Supreme Court Rejects Superfund Challenge, Japan Fallout, China Workshop (by Bob Percival)

Republican presidential candidate Mitt Romney confirmed last week that he believed that climate change is real, a sharp break with the rest of the field of announced Republican presidential candidates. Romney stated: “I don’t speak for the scientific community, of course. But I believe the world’s getting warmer. I can’t prove that, but I believe that based on what I read that the world is getting warmer. And number two, I believe that humans contribute to that.” While rejecting cap-and-trade, Romney stated that “It’s important for us to reduce our emissions of pollutants and greenhouse gases that may be significant contributors.” For this seemingly sane statement Romney’s chances of winning the Republican presidential nomination were officially declared dead by Rush Limbaugh and others, but it instead could be the sign of the first serious challenger to Obama emerging from the Republican field.

On Monday June 6 a representative of EU Climate Commissioner Connie Hedegaard reiterated the EU’s determination to require all airlines flying to the EU to participate in a cap-and-trade program for their greenhouse gas (GHG) emissions that will begin on January 1, 2012. Airlines will be required to pay a penalty of 100 Euros for each ton of GHG emissions in excess of their allocation. Non-EU airlines are bitterly opposed to the regulation, while EU-based airlines argue that all airlines must be covered or they will be at a competitive disadvantage. Jonathan Buck, Europe to Keep Airlines in Emissions-Trading Plan, Wall St. J., June 7, 2011, at B8.

On Monday June 6 the U.S. Supreme Court refused to review a decision by the U.S. Court of Appeals for the D.C. Circuit upholding the constitutionality of the Superfund cleanup process. Since the late 1990s the General Electric Company (GE) has been arguing that Superfund’s provisions precluding pre-cleanup judicial review of cleanup orders and authorizing treble damages against companies who improperly defy them denies due process of law. GE enlisted Harvard constitutional law professor Laurence Tribe to represent it early on in this crusade (as he did in 2000 when the company argued that the Clean Air Act was unconstitutional on non-delegation grounds) but it lost at every stage of this long-running litigation. The latest round of GE’s efforts to attack Superfund was championed by former Stanford law dean Kathleen Sullivan who represented industry groups in the Burlington Northern case that made it more difficult for the government to hold companies liable under Superfund as arrangers for disposal of hazardous substances.

A bitter battle seems to have broken out over proposals to eliminate a multi-billion dollar subsidy for ethanol blenders. Senator Tom Coburn has drawn the wrath of anti-tax crusader Grover Norquist for breaking ranks to support eliminate of this tax break, which he interprets as supporting a tax increase in violation of the right’s “pledge” never to raise taxes. The environmental community also supports elimination of the tax break.

Fallout continues from the Japanese nuclear accident. The Wall Street Journal reports that “an unofficial nuclear shutdown” is occurring in Japan as Japanese utilities who had nuclear powerplants temporarily shut down when the Fukushima Daiichi accident occurred are declining to restart them even if they were not directly affected by the accident. As a result, only 17 of Japan’s 54 nuclear reactors are now operating. Mari Iwata, Japan Expects Power Shortages Amid Growing, Unofficial Nuclear Shutdown, Wall St. J., June 10, 2011. German Chancellor Angela Merkel conceded last week that her country’s decision to return to its policy of phasing out nuclear energy will require the country to build an addition 10 to 20GW of fossil-fuel powerplants over the next ten years. Bernd Radowitz, German Nuclear Exit Raises Fossil-Fuel Needs, Wall St. J., June 10, 2011, at A12.

Today I accompanied a delegation of young Chinese environmental professionals to Camden Yards to watch the Baltimore Orioles play the Tampa Bay Rays. The delegation is part of a project sponsored by the National Committee on U.S.-China Relations. The group includes Ma Yong (Director of the Department of Inspection and Litigation of the All-China Environmental Federation’s Environmental Legal Services Center in Beijing), Professor Qin Tianbao from the Research Institute of Environmental Law at Wuhan University, Ms. Bo Xiaobo from the China University of Political Science and Law in Beijing, Ms. Hu Wei (an attorney with the Shanghai Debund Law Office), and Ms. Liu Xiaoying (a research fellow at Beijing Children's Legal Aid and Research Center). The group has spent the last two weeks visiting San Francisco, Atlanta and Washington. For the next three days they will be participating in an environmental workshop at the University of Maryland School of Law. Most of the group seemed to really enjoy the baseball game, which I often describe as the very best way for foreigners to experience a slice of truly American culture. The Os lost to the Ray 9-6.

Monday, June 6, 2011

Chinese Electricity Prices, MEP Report, C40 Meeting, French Debate Fracking Ban, Fordham Article (by Bob Percival)

On Monday May 30 the Chinese government announced that it would increase electricity prices in response to power shortages that occurred when electric utilities cut back on power production due to the high price of coal. The price increases, which became effective on June 1, average approximately 3 percent.

On Friday June 3 the Chinese Ministry of Environmental Protection released its annual report. Despite reporting progress in reducing air and water pollution (a 19% drop in SO2 emissions and a 32% decrease in pollution of surface water), the report described environmental conditions in China as “very grave.” The report cited declining biodiversity and increasing pollution of the countryside as polluting industries were moved from cities to rural areas. Ian Johnson, China Agency Says Threat to Ecosystem is “Grave,” N.Y. Times, June 4, 2011, at A7. Li Ganjie, vice minister for the environment, noted that China needed to write new legislation to control heavy metal pollution. He also conceded that more than one fifth of the country’s nature reserves have been degraded by illegal development projects.

On Wednesday June 1 the World Bank signed an agreement with representatives from 40 large cities (the “C40”) meeting in Sao Paulo, Brazil to provide technical and financial assistance for local efforts to reduce emissions of greenhouse gases (GHGs). The agreement was hailed by New York Mayor Michael Bloomberg and former President Bill Clinton, who have joined forces to promote local initiatives to combat climate change. At present 58 large cities, with a population of 300 million people, that account for 12 percent of global GHG emissions, are participating in the C40 initiative. The World Bank will help the group employ standardized methods for measuring and reporting on GHG emissions to make it easier to attract financing for reduction projects.

On June 1 the French Senate began debate on legislation, approved last month by the French National Assembly, to ban the use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. “Fracking” has become a popular technology in the U.S. where it was exempted from regulation under the Safe Drinking Water Act in 2005. It has raised serious environmental concerns potential contamination of ground and surface water in light of the melange of chemicals injected deep underground to fracture rock formations and release gas deposits. On the very day the French Senate debate commenced, a British company announced that it temporarily would halt fracking operations due to concern that the practice had contributed to earthquakes near a test well. David Jolly, U.K. Company Suspends Controversial Drilling Procedure, N.Y. Times, June 1, 2011.

One little-noticed aspect of the G-8 Summit in France the week before last was a pledge by EU officials to consider replicating a controversial provision in the U.S.‘s Dodd-Frank Wall Street Financial Reform and Consumer Protection Act to require oil, gas and mining companies to disclose all payments to foreign governments. William MacNamara, Transparency Initiative Moves Forward in Deauville, FInancial Times, June 1, 2011. If such legislation is adoption, it should reduce the force of complaints by U.S. companies that Dodd-Frank’s requirements disadvantage them in global competition.

Today I received hard copies of the May 2011 issue of the Fordham Law Review where my article “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” appears. The article was a product of my presentation at a symposium on presidential powers held at Fordham last November (see Nov. 14, 2010 blog post). The symposium produced some great articles exploring a surprisingly uncharted area of law. A copy of my article, which reviews the constitutional and administrative law debate over the president’s authority to direct environmental regulations, can be downloaded at: http://www.fordhamlawreview.org/articles/who-s-in-charge-does-the-president-have-directive-authority-over-agency-regulatory-decisions.