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.