Attack on Light Bulb Efficiency Mandate, New Indian Environment Minister, IWC Meeting, 7th Circuit Rejects Kiobel (by Bob Percival)

Republicans in the U.S. House of Representatives tried this week to repeal the energy efficiency mandate for light bulbs that was enacted with bipartisan support in the Energy Independence and Security Act of 2007. The Better Use of Light Bulbs (BULB) Act, sponsored by Congressman Joe Barton (R-Tex.), would have repealed the mandate to improve light bulb energy efficiency by 27-29% through 2014 and by 60-70% by 2020. These mandates are expected to phase out highly inefficient incandescent light bulbs that waste 80 percent of their energy in creating heat rather than light. Congressman Fred Upton (R-Ill.), who had sponsored the mandates in 2007, now supported the effort to repeal them. When it was brought up under special rules on July 12 that required two-thirds approval, the repeal effort failed by gaining a majority of only 233-193. Later in the week an appropriations rider that would delay the mandates from January 1 to October 1, 2012 was adopted by voice vote in the House. It would prohibit the federal government from spending any money to enforce the mandates during the next fiscal year. The National Electrical Manufacturers Association opposed efforts to change the mandates because it would penalize companies that have made investments in anticipation of the new rules taking effect.

On July 12 outspoken Indian Minister of Environment and Forests Jairam Ramesh was removed from his position by Indian Prime Minister Manmohan Singh. Press reports suggest that the move was motivated by the Prime Minister’s desire to speed up development projects that Ramesh had placed on hold for failure to comply with environmental requirements. Amol Sharma, India Fires Environment Minister Who Held Up Projects, Wall St. J., July 13, 2011. Succeeding Ramesh as the new Minister of Environment and Forests is Jayanti Natarajan. Ramesh was “promoted” to oversee the cabinet-level Ministry of Rural Development. Environmentalists are cautiously optimistic that Natarajan will prove to be a worthy successor to Ramesh.

Last week the International Whaling Commission (IWC) held its 63rd annual meeting on the Channel Island of Jersey. Fifty-four of the 89 countries that are members of the Commission (with Colombia being the latest to join) were present for the commission of the meeting. The Commission made no changes to the present limits on aboriginal subsistence whaling. It adopted a resolution condemning any actions at sea that create risks to human life and property. The Commission deferred action on a proposal to create a South Atlantic Sanctuary after it became apparent that the necessary support of three-quarters of the voting members was lacking. Next year’s meeting will be held in Panama from June 11 to July 6, 2012, but after that meeting the Commission is likely to meet only once every two years and it may start to hold meetings of the Scientific Committee separately from, and in advance of, the Commission meeting.

Within days of each other, two U.S. Courts of Appeals expressly rejected the conclusion by the Second Circuit in its September 2010 Kiobel decision that corporations cannot violate the law of nations and thus are immune from liability under the Alien Tort Statute (ATS). As noted in last week’s blog post (July 11), on July 8 the D.C. Circuit ruled in Doe v. ExxonMobil Corp., No. 09-7125, that corporations can be held liable under the ATS for aiding and abetting actions by governments in violation of the law of nations. On July 11 the Seventh Circuit, in an opinion written by Judge Richard Posner, also rejected Kiobel. In Flomo v. Firestone Natural Rubber Co., No. 10-3675 (7th Cir.), the court recognized that the issue of corporate liability under the ATS “seems to have been left open” by the U.S. Supreme Court “in an enigmatic footnote in Sosa, 542 U.S. at 732 n.20.” However, Judge Posner then expressly rejected Kiobel’s premise that because corporations have never been prosecuted for violating customary international law there cannot be any principle of customary international law that binds a corporation. First, he noted that the allied powers used customary international law to dissolve German corporations that had assisted the Nazi war effort. Second, he concluded that even if such prosecutions have been rare, that does not mean that corporations are exempt from customary international law. While opining that corporate liability would be extended too far if companies were strictly liable for anything that an employee did in a developing country, Posner stated that there was no problem holding companies liable for violations “directed, encouraged or condoned at the corporate defendant’s decisionmaking level.” (The plaintiffs in Flomo allege that Firestone used child labor on its rubber plantations in violation of customary international law). Judge Posner declared that an argument that it would be “bad for business” to hold corporations liable under the ATS, was “irrelevant, but not obvious,” noting that companies that do not use child labor are hurt when competitors are not held liable for doing so. However, the Seventh Circuit panel ultimately concluded that there was insufficient evidence to hold Firestone liable for violation of customary international law.