Belated July 3 Post -IUCN South Africa Colloquium, Eskom Protest, Supreme Court Wetlands Case, German Nuclear Power Phaseout (by Bob Percival)

This post was written on July 3, but due to poor internet connections in rural South Africa, it was not posted until July 11.

I am in South Africa now for the annual Colloquium of the IUCN Academy of Environmental Law. This year for the first time the Colloquium is being co-sponsored by four South African law schools - North-West University, the University of Cape Town, the University of Kwa-Zulu Natal, and the University of Witwatersrand. It is being held in a rather remote part of the South African coast at the Mpekweni Beach Resort several hours east of Port Elizabeth. I arrived at the resort today after spending three days in Cape Town. (Because of the poor internet access, I was not able to post this report until July 11).

While in Cape Town I visited Robben Island, the island several miles off the coast where Nelson Mandela was imprisoned for 18 years. A high-speed ferry takes one-half hour to reach the island where visitors are placed on buses for a tour. Now that the prison has closed down, the island is somewhat of a nature reserve and we spotted a group of penguins from the bus. The bus stopped at important sites on the island including the limestone quarry where Mandela and his fellow political prisoners were forced to work for many years. The bus then ends up at the prison where visitors are given a tour led by a former inmate who also was a political prisoner. The tour includes a visit to the cell where Mandela was held. Shortly after I got off the bus I heard someone call my name and discovered that it was Charles Di Leva, chief counsel for the Environmental and International Law Unit of the World Bank. Charles and other World Bank officials were in Cape Town for the 2011 Climate Investment Fund (CIF) Partnership Forum, hosted by the African Development Bank. At the CIF Forum, which was held at the convention center across the street from the hotel where I was staying, new initiatives were announced to promote renewable energy development in Africa, including a concentrated solar powerplant in Morocco.

The day before I arrived in South Africa, Greenpeace protested the construction of two large new coal-fired powerplant by South African electric utility Eskom by dumping three truckloads of coal in front of Eskom’s headquarters in Johannesburg. Eskom is planning to build the 4,800-megawatt (MW) Kusile plant and the 4,788 MV Medupi plant. The World Bank has helped fund the project, which has been heavily criticized by environmentalists for increasing greenhouse gas emissions. Eskom and the Bank argue that South Africa needs to exploit its extensive coal resources and that the plants will use highly efficient super-critical combustion technology. Greenpeace activists argue that Eskom has made only token investments in renewable energy, including 100 MV of wind power and 100 MV of solar. South Africa, which is growing rapidly, relies on coal for 90% of its electrical generation. While Eskom had hoped to build more nuclear powerplants, the Japanese nuclear accident has cast those plans into doubt.

On July 1 the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to the Obama administration’s effort to kill Yucca Mountain, Nevada as a repository for storing the country’s high-level radioactive waste. The court held that the lawsuit brought by three state and local governmental units in South Carolina and Washington state was not ripe for judicial review until the Nuclear Regulatory Commission (NRC) takes final action that is judicially reviewable. In Re Aiken County, No. 10-1050 (D.C. Cir. July 1, 2011). Even though the U.S. Department of Energy has withdrawn its license application for Yucca Mountain on orders from President Obama, the judges noted that since the NRC is an independent agency, the final decision on the matter rests with the NRC and not the president.

On June 27, the last day of its October 2010 Term, the U.S. Supreme Court agreed to decide another environmental case. The Court granted review in Sackett v. U.S. Environmental Protection Agency, No. 10-1062. The case involves the question whether a failure to grant a hearing to challenge a wetlands determination under §404 of the Clean Water Act prior to EPA’s issuance of a compliance order is a violation of the Administrative Procedure Act (APA) or a denial of due process. The Ninth Circuit had upheld a district court decision that the Clean Water Act precludes pre-enforcement review of compliance orders. The Court’s decision to review the case is somewhat surprising in light of its refusal to hear a similar issue involving pre-enforcement review under CERCLA (see June 12 blog post).

On June 30 the German Parliament overwhelmingly approved the government’s plan to shut down all the country’s nuclear powerplants by the year 2022. The vote in favor of the government’s plan was 513-79. The decision represents a dramatic change in the government’s policy, which previously had supported extending the operating life of existing nuclear powerplants until this year’s nuclear accident in Japan. It will require Germany to be even more aggressive in the development of renewable energy sources. By 2020 Germany plans to generate 35% of its energy from hydro, wind, solar and biogas projects.