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

Monday, August 29, 2011

Vietnamese Delegation, Superbugs & GMOs, XL Pipeline Decision, Kenya E-Court, Danish Arctic Plan, China Sues Conoco Phillips (by Bob Percival)

On Tuesday August 23 I hosted a group of visiting environmental professionals from Vietnam at the University of Maryland School of Law. The group included Dr. Loi Van Dang, Deputy Director of the Department of Pollution Control at the Vietnam Environment Administration (VEA), Mr. Son Minh Hoang, Deputy Director of the VEA’s Department of Policy and Legislation, Dr. Dong The Nguyen, VEA’s Deputy General Director in the Ministry of Natural Resources and Environment, and Dr. Khanh Quoc Nguyen, Director of the VEA’s Center for Environmental Information and Data. It also included Mr. Phuong Nam Nguyen, Director of the Vietnam Environment Protection Fund, Mr. Sy Thi Nguyen, Deputy Director of the Environmental Crime Prevention Unit in Vietnam’s Ministry of Public Security and an environmental journalist, Dr. My Thi Pham, who is the Editor-in-Chief of the newspaper Natural Resources & Environment. Vietnam is in the process of revising its environmental laws, as is customary every five years, and the group was visiting the U.S. under the sponsorship of the U.S. Department of State’s International Visitor Leadership Program. I was asked to present a lecture to them summarizing aspects of U.S. environmental law that might be useful to them in updating Vietnam’s laws.

When I visited Vietnam in May 2008, I spent an afternoon in Hanoi at what was then called the Vietnam Environmental Protection Agency, meeting with Dr. Tran Hong Ha, who was then the agency’s Director General. (See May 4, 2008 blog posting). Last Tuesday I showed the Vietnamese visitors a photo of my visit with Dr. Ha, who they explained has been promoted to an even more important position in the Vietnamese government. Half way through my presentation the ceiling started rumbling and the floor shook. One of the interpreters who had lived for many years in California jumped under a table and declared that it was an earthquake. I continued lecturing for another 15 minutes until a security guard burst into the room and asked why we had not evacuated the building (answer: no one told us to). The evacuation enabled me to introduce the visitors to several members of our faculty, gathered in the park across the street from the law school, but it precluded us from completing our workshop.

Hurricane Irene hit the east coast and the Washington area this weekend. While it was not nearly as bad as people initially had feared, the concern that major urban areas like New York City could be flooded by Katrina-like storm surges seems to have pointed the way to what we can expect in the future as sea level rise and stronger hurricanes (both forecast by the IPCC) occur with greater frequency.

Despite a strong stock market rally today, Monsanto Corp. was one of the few companies that saw its stock decline in price. The reason apparently was an article in the Wall Street Journal that publicized a discovery by scientists from Iowa State University. The scientists found that some agricultural pests appear to have developed immunity tonsanto’s genetically modified crops that are supposed to be resistant to the bugs. Scott Kilman., Monsanto Corn Plant Losing Bug Resistance, Wall St. J., Aug. 29, 2011, at B1. Are presidential candidates who question the theory of evolution listening?

Despite strong protests from environmental groups, the U.S. State Department on August 25 approved construction of the XL pipeline to transport crude oil from Alberta’s tar sands to U.S. refiners. Several prominent environmentalists,, including Gus Speth, were arrested and spent last weekend in jail after protesting in front of the White House. Environmentalists fear that the piepline will help Canada market oil derived from Alberta tar sands that generates significantly more greenhouse gase emissions than alternative fuels.

In August 2010 the nation of Kenya adopted an ambitious new constitution that, among other reforms, created a Land and Environmental Court. The constitution was approved by a vote of 67% of Kenyans who voted in a referendum in August 2010. Under the terms of the new constituton, Kenya’s Parliament was supposed to enact implementing legislation within one year of adoption of the constitution. With the deadline looming, Kenya’s Parliament did in fact adopt legislation to implement the terms of the new constitution. While I do not have direct confirmation that this included legislation to establish Kenya’s Land and Environment Court in July 2011, draft legislation to implement this provision of the constitution was unveiled in late July 2009.

On August 23 the Foreign Ministry of Denmark unveiled a new 10-year plan for the Arctic that shifts the focus of government policy from environmental protection to commercial and economic development. The strategy was agreed upon by the governments of Denmark, Greenland, and the Faroe Islands. Danish Foreign Minister Lene Esperson explained that “Previously, the discussion about the Arctic region has focused on the environment, on whether we oughtn’t turn the region into one large natural preserve. But Denmark, Greenland and the Faroe Islands have now agreed that we want to utilize the commercial and economic potential of the area.” The plan seeks to encourage private investment in the area to improve the living standards of people residing there. Flemming Emil Hansen, Arctic Strategy Shifts to Economic Development, Wall St. J., Aug. 24, 2011, at A6.

Press reports last week confirmed that the Chinese government’s maritime authority is about to sue the U.S. oil company Conoco-Phillips for two major oil spills that occurred in June 2011 in Bohai Bay. China’s State Oceanic Administration is reviewing applications from 49 Chinese law firms to help with the litigation. The two spills released 3,2000 barrels of oil and drilling fluids in the Penglai 19-3 offshore oil field, spreading pollution over 324 square miles of Bohai Bay. Conoco states that its cleanup of the spills is more than 95% complete and that it will “do the right thing” with respect to compensating victims of the spills. Edward Wong & Clifford Krauss, Chinese Maritime Agency Plans to Sue American Oil Company Conoco Phillips Over Two Spills, N.Y. Times, Aug. 25, 2011 (http://www.nytimes.com/2011/08/26/world/asia/26china.html).

Sunday, August 21, 2011

Dalian Protest, Japan Reorganizes Nuclear Regulation, Uganda Mabira Forest Dispute, GOP Candidates v. EPA (by Bob Percival)

Last week a large group of Chinese citizens - officially estimated to number 12,000, but many more by other estimates -- gathered in the northern port town of Dalian to protest the operation of a $1.5 billion chemical plant. The Fujia chemical plant, which has been operating for two years, makes paraxylene, a toxic chemical used to manufacture polyester. The plant is located on the coast. After the plant’s seawall was breached in a typhoon that hit a week earlier, seawater lapped at the walls of the plant, causing the public to fear that toxic chemicals would be released. The city’s Communist party secretary reportedly stood atop a car to beg the demonstrators to disperse, promising them that the plant would be closed. Sharon LaFraniere & Michael Wines, Protest Over Plant Shows Citizen Pressure on China, N. Y. Times, Aug. 15, 2011. The demonstration, organized in part through social media and other internet communications, is another sign of the potential power of public protests in China. Although the Dalian protest was peaceful, my Chinese sources indicate that some of the protesters may have been roughed up by police.

On August 15 the Japanese government announced that it will move the agency responsible for regulating nuclear power from the Ministry of Economy, Trade and Industry to the Environment Ministry. A new Nuclear Safety Agency will be created in April replacing the current Nuclear and Industrial Safety Agency and the Nuclear Safety Commission. It will be an affiliate of the Environment Ministry. The move is widely viewed as a means of strengthening regulation of nuclear power in light of the perception that the existing regulatory agencies were too close to the industry. Mitsuru Ore, Japan Tightens Nuclear Oversight, Wall St. J., April 16, 2011, at A9.

The shutdown of nuclear power plants in Japan in the wake of the March 2011 accident at the Fukushima Daiichi nuclear power complex continues to spread. Strong pressure from the Japanese public has prevented the restart of reactors temporarily idled for routine inspections. As a result, only 15 of the country’s 54 nuclear power plants are in operation now. If this trend continues through next spring Japan’s entire nuclear power industry, which accounted for 30% of the country’s electric generation prior to the accident, could be shut down. Although conservation measures reduced peak electric demand in Japan in July 2011 by 20 percent, several old fossil-fueled power plants have been placed in operation to prevent severe power shortages. In addition to increasing the cost of electricity generation by nearly $40 billion per year, increased use of oil and coal could increase Japan’s greenhouse gas (GHG) emissions by 16% over 1990 levels by the year 2013. Hiroko Tabuchi, Quake in Japan Causes Costly Shift to Fossil Fuels, N.Y. Times, Aug. 20, 2011, at B2. The Kyoto Protocol requires Japan to reduce its GHG emissions by 6% over 1990 levels during the 2008-2012 period. Meanwhile in the U.S. the board of the Tennessee Valley Authority has voted to resume construction of a nuclear power plant that had been put on hold in 1988. The decision to restart construction was taken to replace old coal-fired plants that are being retired in part due to pollution and climate change concerns. Matthew L. Wald, Alabama Nuclear Reactor, Partly Built, to Be Finished, N.Y. Times, Aug. 19, 2011, at A12.

The U.S. Department of Interior announced on August 19 that on December 14 it will conduct the first sale of leases for offshore oil drilling in the Gulf of Mexico since the Deepwater Horizon oil spill in April 2010. The Department raised the minimum bid to $100 per acre from $37.50 per acre in an effort to prevent oil companies from stockpiling properties that are never developed. Leases that are not developed can revert back to the federal government at the end of their term, though extensions routinely have been granted in the past. ExxonMobil recently sued the Interior Department for refusing to extend the term of its leases for the Julia oil field in the Gulf of Mexico that the company estimates may contain one billion barrels of recoverable oil. Russell Gold, Exxon, U.S. Government Duel Over Huge Oil Find, Wall St. J., Aug. 18, 2011, at A1. Statoil ASA of Norway, whose lease extension request also was denied, filed suit on August 15, claiming that Interior’s action was unprecedented because lease extension requests never previously have been denied for deepwater oil fields.

On August 15 the U.S. Fish & Wildlife Service released its draft comprehensive conservation plan (CCP) for the Arctic National Wildlife Refuge (ANWR) in northern Alaska. 76 Fed. Reg. 50490. Public comment on the CCP and a companion draft environmental impact statement will be accepted until November 14. The CCP governs how ANWR will be managed for the next 15 years. Among the alternative it proposes are inclusion of parts of ANWR in the National Wilderness Preservation System as well as inclusion of some of the rivers in the area in the Wild and Scenic Rivers System.

Opposition reportedly is growing to Uganda President Yoweri Museveni’s plan to turn over part of the protected Mabira Forest Reserve for development by a family of sugar magnates. The Mehta family is promising to create jobs by developing the land for sugar cane production and to build a road and a power plant. Environmentalists are outraged that the property transfer, first proposed several years ago, would be done without observing procedures required by existing laws. While President Museveni is framing it as a “jobs v. environment“ dispute, the opposition to the proposal is broadening to include many groups not normally aligned with environmental concerns as well as some members of Museveni’s own party. Frederick Golooba-Mutebi, Uganda: Nation Lines Up Against Museveni Over Protected Forest, The Nigerian Daily, Aug. 20, 2011.

“Jobs v. the environment” may become a prominent theme of Republican presidential candidates in the U.S. Many are bashing EPA for issuing “job-killing regulations” even as public opinion polls continue to show strong public support for the agency. John M. Broder, Bashing EPA Is New Theme in G.O.P. Race, N.Y. Times, Aug. 18, 2011, at A1. Texas Governor Rick Perry’s claims that climate scientists “have manipulated data so that they will have dollars rolling into their projects” and that “almost weekly or even daily scientists . . . are coming forward and questioning . . . man-made global warming” received “Four Pinnocchios” as whopping lies by Washington Post “Fact Checker” Glenn Kessler. Noting that five investigations into the East Anglia email hacking had exonerated the scientists involved, Kessler declared the “scandal to be a figment of Perry’s imagination.” When asked to substantiate the claim that scientists increasingly are questioning climate change, Perry’s campaign cited “The Petition Project” (http://www.petitionproject.org/) that claims 31,487 American scientists question climate change. The Fact Checker noted that the petition includes very few people with expertise in climate research, that 10 million people in the U.S. would qualify under the project’s broad definition of “scientists” (see http://www.skepticalscience.com/scrutinising-31000-scientists-in-the-OISM-Petition-Project.html), and that there have been virtually no new signers in the last three years. Glenn Kessler, “Rick Perry’s Made Up ‘Facts’ About Climate Change,” Washington Post, Aug. 20, 2011.

Last Sunday afternoon my former student Neal Kemkar, who works at the White House’s Council on Environmental Quality (CEQ), was kind enough to give my wife and I a private tour of the West Wing of the White House. White House staff are allowed to give such tours on nights and weekends when it will not interfere with other business being conducted there. Among the sites we visited were the Office of the Vice President, the White House Mess, the Rose Garden, the Cabinet Room, the Oval Office, and the Roosevelt Room. The Situation Room, where the famous photo was taken of President Obama monitoring the raid that killed Osama bin Laden, is not on the tour, but it is directly across from the White House Mess and as staffers entered and exited it was possible to get a brief glimpse inside of what is a surprisingly small room crammed with technology. Outside of the Cabinet Room is the “Blackberry basket” where all cabinet officers must leave their cellphones prior to entering cabinet meetings. As cabinet officers enter the room, a White House staffer posts stickies on each cellphone to identify its owner. The highlight of the tour is the Oval Office. President Obama has placed busts of Abraham Lincoln and Martin Luther King on the wall opposite his famous desk that is made from timbers of the HMS Resolute. One of the three original copies of the Emancipation Proclamation is above the bust of King. A bowl of Washington apples, delivered fresh each day, sits on the table between couches.

Sunday, August 14, 2011

New Casebook Website, Suu Kyi Protests Dam, U.S. Environmental Politics, Japan "Astroturf" Scandal, DOE Fracking Report (by Bob Percival)

Tomorrow I am launching a new website for my environmental law casebook (Environmental Regulation: Law, Science and Policy). The URL for the site is simply the acronym for the title of the casebook: www.erlsp.com. The site contains comprehensive updates for the material in the 6th edition of the casebook, which has been the most popular environmental law casebook used in U.S. law schools. By creating my own website that I personally maintain I am now freed of dependence on the University of Maryland campus IT department (hurray!), which will enable me to post frequent updates instantly from wherever I am in the world. The new 7th edition of the casebook will be published by Aspen Law and Business in early summer of 2012. Aspen has just launched an electronic version of the casebook, which is available through through Aspen’s SmartBooks program (https://www.brainshark.com/WKLB/vu?pi=zEwzmRA44z2C9Vz0). The 2011-2012 edition of my Statutory and Case Supplement arrived in book stores last week (I saw the first copy at Georgetown’s bookstore even before I received a copy from Aspen).

Aung San Suu Kyi, winner of the 1991 Nobel Peace Prize and long-time leader of Myanmar/Burma’s democratic opposition, has joined a campaign to protest China Power Investments’s construction of the Myistone Dam on the Irrawaddy River. Tension Over Dam Project Shifts Myanmar’s Politics, Wall St. J., Aug. 13, 2011. The NGO Burma Rivers Network leaked a copy of a 945-page environmental impact assessment prepared jointly by Burmese and Chinese scientists in 2009 that recommended that the project be scrapped. The project has been strongly opposed by many Burmese villagers who are being relocated due to its construction. They argue that it will cause enormous environmental damage and social dislocation while largely benefiting Burma’s authoritarian military government by increasing its revenue from cross-border sales of electricity to China.

This week’s Republican presidential debate in Iowa illustrated the bizarre state of environmental politics in the U.S. today. The Republican candidates in the debate (including even former Governor Huntsman, who says “conservation is conservative” and claims to take climate change seriously) decried overregulation and sought to demonize EPA as a voracious, “job-killing” agency bent on regulatory overreach. Yet as attorney John D. Walke of the Natural Resource Defense Council points out on his blog (http://switchboard.nrdc.org/blogs/jwalke/out-of-control_criticism_of_ep.html) , most of EPA’s regulatory actions are mandated by law, many to correct actions by the Bush EPA that were struck down by the courts as illegal. Even as Republicans denounced President Obama as anti-business, on August 9 President Obama announced a landmark agreement supported by the trucking industry and truck manufacturers to require heavy trucks to improve their fuel economy by up to 20% by the 2018 model year.  It is estimated that the agreement will save 530 million barrels of oil over the lifetime of trucks built from the 2014 to 2018 model years. The industry groups reportedly were attracted to the initiative because it will harmonize federal and California fuel efficiency standards. Mark Clayton, Cheers All Around as Obama Sets Fuel Efficiency Goals for Big Trucks, Christian Science Monitor, August 9, 2011.

What explains the new anti-environmental orthodoxy where Republican presidential candidates attack each other for previously supporting cap-and-trade programs to control greenhouse gas emissions? Washington Post business columnist Steven Pearlstein blames business leaders for bankrolling what has spun into an out-of-control anti-regulatory campaign. In today’s Washington Post he writes: “When it started out, all you really wanted was to push back against a few meddlesome regulators or shave a point or two off your tax rate, but you were concerned it would look like special-interest rent-seeking. So when the Washington lobbyists came up with the clever idea of launching a campaign against over-regulation and over-taxation, you threw in some money, backed some candidates and financed a few lawsuits.” But then it morphed into “hundreds of millions of the shareholders’ dollars, laundered through once-respected organizations such as the Chamber of Commerce and the National Association of Manufacturers, phony front organizations with innocent-sounding names such as Americans for a Sound Economy, and a burgeoning network of Republic PACs and financing vehicles.” Coupled with the Supreme Court’s Citizens United decision that removed limits on corporate campaign spending, the result was the election of “Frankenpols” who turned what “started out as a reasonable attempt at political rebalancing . . . into a jihad against all regulation, all taxes and all government, waged by right-wing zealots who want to . . . shut down the regulatory agencies that protect you from unscrupulous competitors . . .”. Steven Pearlstein, Who’s To Blame for this Mess? Let’s Start with the Corporate Lobby, Wash. Post, Aug. 14, 2011,at G1.

The prospect for Japan restarting some of its undamaged nuclear reactors dimmed last week with the disclosure by a whistleblower at Kyushu Electric Power Co. that some of Japan’s largest electric companies had collaborated with government officials to stage manage public forums on the issue. Their activities allegedly included organizing phony “astroturf” groups to pack public fora with utility employees, planting questions, and coordinating email drives. The disclosures, which include allegations of document destruction to cover up the campaign, generated considerable public outrage in Japan. Chester Dawson, Scandal Taints Japan Nuclear Sector, Wall St. J., Aug. 13, 2011. Private citizens are now taking their own radiation readings and uploading them on public websites. Hot Concern, The Economist, Aug. 13, 2011, at 39. Last week Tokyo Electric Power, owner of the stricken reactors, began constructing a giant tent around them to contain the spread of radioactive contaminants, even as the Japanese government moved toward shrinking the size of mandatory evacuation areas around the crippled Fukushima Daiichi site. Mitsuru Obe, Japan Moves to Narrow Some Evacuation Areas, Wall St. J., Aug. 10, 2011.

On August 11 the Secretary of Energy’s Advisory Board (SEAB) Shale Gas Production Subcommittee issued a draft 90-day report on the rapidly growing use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. Bobbie Brown & Ian Urbina, Panel Seeks Stiffer Rules for Drilling of Gas Wells, N.Y. Times, Aug. 11, 2011, at A12. The report recommended measures to reduce the environmental impact of “fracking,” including greater monitoring and public disclosure of information about fracking, new controls on air emissions from fracking operations, the adoption of best management practices in well development and construction and the use of a manifest system for water transfers. A copy of the report is available online at: http://www.shalegas.energy.gov/resources/081111_90_day_report.pdf.

A special advertising supplement to the New York Times sponsored by Rossiskaya Gazeta, the Russian government’s paper of record, profiled the rise of environmental activists in Russia. Vladimir Ruvinsky, Out of the Woods a New Opposition, Russia Beyond the Headlines, Aug. 12, 2011, at 2. The article highlighted the efforts of former suburban working mother Evgenia Chirikova and her lawyer Alexei Navalny to try to stop construction of a road through the Khimki Forest. It noted Chirikova’s concern about the extent to which Russia respects the rule of law in light of numerous attacks on environmental activists. Apparently Russian officials believe that publicizing the work of public interest environmental activists will improve Russia’s image in the U.S.

Yesterday I stopped in a Borders bookstore to observe the progress of the chain’s going-out-of-business sale. The advertised 30% discount already had left the travel section of the store severely depleted of books. The travel book that remained in greatest supply appeared to be a guide for touring Syria - not a surprise in light of current events.

Monday, August 8, 2011

Japan Nuclear Compensation Fund, Frank-Dodd & Conflict Minerals, UNEP Nigeria Oil Contamination Report (by Bob Percival)

On August 3 the Japanese Parliament passed legislation to create a fund to compensate the victims of the Fukushima Daiichi nuclear accident. Under the legislation the Japense government will make an initial contribution of $26 billion to the fund and other Japanese power companies also will contribute. With most of Japan’s nuclear power plants currently shut down, extraordinary measures to reduce consumption of electricity are being employed in Japan. Momentum seems to be building for keeping the reactors shut down. Last week three top Japanese nuclear regulators were fired by Prime Minister Naoto Kan for being too close to the industry and survivors of the World War II nuclear attacks on Hiroshima and Nagasaki joined the opposition to nuclear power. Martin Fackler, Atomic Bomb Survivors Join Nuclear Power Opposition, N.Y. Times, Aug. 7, 2011, at A11.

The conflict minerals provisions of the Frank-Dodd legislation appear to be having a dramatic impact as exports of tin, tantalum and tungsten from the Congo region have dropped by more than 70% in the last year. The legislation requires companies to certify to the SEC what steps they have taken to ensure that their supply chains for such minerals are not funding armed conflicts in the area. While proponents of transparency initiatives are working to establish certification procedures, apparently many companies simply are opting to acquire their minerals from other parts of the world even if they are more expensive there This allegedly is harming legitimate mineral suppliers from the Congo region. David Aronson, How Congress Devastated Congo, Aug. 8, 2011, at A17.

As mentioned last week, I was interviewed for a story about the legal challenge by foreign airlines in the European Court of Justice to the EU’s requirement that all flights to and from EU countries be subject to limits on greenhouse gas (GHG) emissions. The article appear in the online edition of the New York Times last Tuesday. Lawrence Hurley, Airlines Face Uphill Battle in E.U. Emissions Cases, Legal Experts Say, New York Times, August 2, 2011 (http://www.nytimes.com/gwire/2011/08/02/02greenwire-airlines-face-uphill-battle-in-eu-emissions-cas-9359.html?ref=earth). The European experts interviewed for the article think the legal challenge has very little chance of succeeding.

On August 4 the UN Environment Programme released its long-awaited assessment of oil contamination of the Ogoniland region in Nigeria’ Niger Delta. The report concluded that the contamination from repeated oil spills in the area has caused widespread environmental damage and health risks and could take decades to clean up. The complete report can be downloaded at: http://www.unep.org/nigeria/ A copy of the executive summary is available online at: http://postconflict.unep.ch/publications/OEA/UNEP_OEA_ES.pdf

My former student Brooke O’Hanley, who now lives in California, was in D.C. for a conference last week. Prior to starting law school, Brooke was a pro soccer player for the Carolina Courage when they won the WUSA Championship in 2002. After playing soccer with my son on Monday, Brooke and I went to Nationals park to see Washington beat Atlanta. On Tuesday night we went to the White House for a special tour of the West Wing arranged by my former student Neal Kemkar who now works for CEQ. However we had horrendous luck because a fence jumper caused a security lockdown at the White House that resulted in our tour being canceled. Still it was great to catch up with Neal and Brooke over beers at a nearby watering hole. On August 2 I had lunch with Maryland alum Jacob Scherr, director of Global Strategy and Advocacy for the Natural Resources Defense Council (NRDC). Prior to lunch he gave me a brief tour of NRDC’s new D.C. offices on 15th Street next to the Washington Post and across the street from the Madison Hotel. Jacob is working on preparations for the Rio+20 Earth Summit in June 2012. On Friday I moved into my office at the Georgetown University Law Center where I will be teaching Environmental Law this fall as a visiting professor of law.