9th IUCN Academy Colloquium, David Getches, D.C. Circuit Rejects Kiobel, Australia Carbon Tax (by Bob Percival)

I returned to the U.S. over the weekend after participating in the 9th annual Colloquium of the IUCN Academy of Environmental Law in South Africa. The Colloquium was held from July 3-7 at the Mpekweni Beach Resort east of Port Elizabeth on the southern coast of South Africa. The theme of this year’s colloquium was “Water and the Law: Towards Sustainability.” In keeping with the theme, the conference featured several days of heavy rain, broken by brief bursts of sunshine, something that was supposedly quite unusual in this very dry part of South Africa. Despite the remote location, by my count the Colloquium had 150 participants from 30 countries.

On July 4 I chaired a session of the conference on “Climate Change and Water Management,” which featured presentations by Linda Malone from William & Mary, Antia Foerster from the University of Melbourne, Jose Juan Gonzalez from the Universidad Autonoma Metropolitana in Mexico City, and Rob Fowler from the University of South Australia. On Tuesday night the colloquium featured a winetasting of South African wines. I contributed a bottle of Zevenwacht gewurztraminer that I had purchased while doing a one-day tour of the Cape Winelands in Stellenbosch, Franschhoek and Paarl on the previous Saturday.

Shortly before I was due to give my talk on Wednesday on “Transboundary Water Management and the Emergence of Global Environmental Law,” I was greatly shocked and saddened to learn of the death of David Getches, dean of the University of Colorado School of Law. David was one of the real giants in the field of environmental law and also a truly wonderful human being. I last communicated with him in March when he very kindly invited me to visit at Colorado next year. Although my prior commitments precluded such a visit, I shared with him my fondness for the Rocky Mountains born from many childhood summers in Rocky Mountain National Park. I thought it only fitting at the start of my presentation to the Colloquium to pay tribute to David. The audience from all over the world immediately responded by expressing their enormous regard for him.

I have attended eight of the nine Academy Colloquium (all but the first one that was held in Shanghai in 2003 on very short notice) and once again it was a terrific experience. Nearly 100 high quality presentations were made and the opportunities to network and exchange views with environmental law scholars from all over the world were invaluable. The U.S. law schools represented at the Colloquium included Maryland, Lewis & Clark, Pace, Widener, Willamette, and William & Mary. More are likely to participate in the 10th Colloquium, which will be held next year from July 1-5 at the University of Maryland School of Law. The theme for next year’s colloquium, which will be held one month after the Rio+20 Earth Summit will be “Global Environmental Law at a Crossroads.” For more information about this theme and the 10th Colloquium visit: http://www.law.umaryland.edu/iucnael2012.

At the closing plenary session I was invited to give a presentation on plans for the 10th Colloquium. We are planning several great events, including an opening dinner at the National Aquarium, a crab cruise on Baltimore Harbor during the 4th of July fireworks celebration, our program’s annual winetasting event, and a field trip to an Orioles game (schedule permitting). In addition we will be hosting an international environmental law film festival. To show how easy it is to make a film, while at the 9th Colloquium I made a film trailer promoting the 10th Colloquium that I showed during the closing plenary. It features clips of participants in the 9th Colloquium urging everyone to “Come to Maryland” in more than 20 different languages. A copy of the trailer is online at: http://law.umaryland.edu/iucnael2012.

The schedule for future colloquia was announced at the 9th Colloquium. In 2013 the 11th Colloquium will be held at the University of the South Pacific in Vanuatu. In 2014 the 12th Colloquium will be held at the University of Taragona in Catalonia. On the way to the airport on July 8, I joined many conference participants in a terrific tour of Addo Elephant National Park near Port Elizabeth. We saw lots of wildlife, including elephants, antelope, zebras, eiland, and warthogs. Photos of my trip to Africa, including the visit to Robben Island, the tour of the Cape WInelands and the trip to Addo Elephant National Park, are available online at: http://gallery.me.com/rperci#100879

On July 9 the U.S. Court of Appeals for the D.C. Circuit held that corporations can be held liable for violations of the law of nations. In Doe v. ExxonMobil Corp., No. 09-7125 (D.C. Cir. July 9, 2011), the court by a 2-1 vote rejected the Second Circuit’s Kiobel decision that had held that corporations are incapable of violating the law of nations. Plaintiffs in the case inclued villagers from the Aceh territory of Indonesia who alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), and various common law torts. In an opinion by Judge Rogers, joined by Judge Tatel, the court held that “neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.” The court affirmed the dismissal of the TVPA claims, but reversed the district court’s holding that the plaintiffs lacked prudential standing to bring their non-federal tort claims. Judge Kavanaugh dissented. The decision creates a clear conflict with the Second Circuit’s Kiobel decision, making it increasingly likely that the Supreme Court will have to decide whether corporations can be held liable under the Alien Tort Statute for violating the law of nations. The decision also rejects the trial court’s suggestion that non-resident aliens automatically lack prudential standing to sue because they are not within the zone of interests protected by U.S. law. A copy of the decision is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/567B411C56CD7A6F852578C700513FC8/$file/09-7125-1317431.pdf

On July 10 Australian Prime Minister Julia Gillard proposed a carbon tax of 23 Australian dollars per ton on Australia’s top 500 emitters of greenhouse gases. The tax, which would go into effect in mid-2012, would increase by 2.5% per year until 2015 when a market-based emissions trading scheme will go into effect.