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, September 26, 2011

Court Lifts Injunction Barring Ecuador Collection of Chevron Judgment, Chinese Protests, Nuclear Power & TRAIN Act (by Bob Percival)

The long-running dispute between residents of Ecuador and the Chevron Corporation over the cleanup of oil pollution from drilling decades ago in Ecuador took a sudden turn last week. On Monday September 19 the U.S. Court of Appeals for the Second Circuit issued an order vacating a federal district court’s injunction barring enforcement of an Ecuadoran trial court’s $18 billion judgment against Chevron. The order was issued after the three judges hearing an appeal of injunction (Rosemary S. Pooler, Richard C. Wesley, and Gerald E. Lynch) expressed extreme skepticism over its legality at oral argument on September 16. The injunction had been issued by federal district judge Lewis Kaplan in March in response to a RICO lawsuit by Chevron accusing the plaintiffs of trying to shake down the company through a fraudulent conspiracy. The Second Circuit denied the plaintiffs’ request for a writ of mandamus removing Judge Kaplan from the case for bias, but it granted the plaintiffs’ motion for an order imposing a stay to prevent Judge Kaplan from proceeding with a November trial as a prelude to making the injunction permanent. The court indicated that it will issue an opinion explaining its order in due course.

Plaintiffs’ counsel assured the court at oral argument that they will not seek to enforce the Ecuadoran judgment until after review of it has been completed by an appellate court in Ecuador, which is expected to take several months. Thus the main impact of the court’s order is to shift the focus of the litigation for now back to the Ecuadoran courts. Some elements of the judgment are highly questionable, particularly the provision that what initially was an $8.6 billion judgment would double in size if Chevron did not immediately apologize to the people of Ecuador for its actions. Thus, if the Ecuadoran appellate courts are fair they should dramatically reduce the size of the judgment. But Chevron’s claim that the judgment was a product of fraud seems far-fetched. This is a case that should have been settled long ago, but the level of animosity between the parties is so high that this seems most unlikely at this point. Chevron (and its predecessor in interest Texaco) could have had this case decided by a U.S. federal court, which is where it initially was filed by the plaintiffs in 1993, but the company persuaded the U.S. court that Ecuador was a more convenient forum. For the last year or so Chevron’s legal strategy seems to have been to bleed the plaintiffs dry by filing actions in new venues including the Permanent Court of Arbitration in the Hague and several U.S. courts in aid of discovery on its fraud allegations. However, when the plaintiffs obtained financing from several hedge funds, the playing field was leveled so that it is now a battle between well-heeled U.S. law firms with Gibson, Dunn representing Chevron and Patton Boggs representing the Ecuadoran plaintiffs. Stay tuned, but do not expect a quick resolution of this case.

Four days of vehement protests by Chinese citizens about air and water pollution from a solar panel factory owned by the Zhejiang JinkoSolar Company resulted in the Chinese government temporarily shutting down production at the plant. Residents blame the plant, which is located in Haining city in eastern China, for an unusual number of cancer deaths in the area.

New York authorities have arrested 12 people in Chinatown on misdemeanor charges for illegally importing a rat poison that is 60 times more potent than the level considered safe under U.S. pesticide regulations. The pesticide, which contains the chemical brodifacoum, apparently was smuggled into the U.S. from China. U.S. EPA officials expressed particular concern about the impact of the illegal rat poison on young children. William K. Rashbaum, 12 Held in Sale of Pest Poisons, One 60 Times as Potent as the Legal Limit, N.Y. Times, Sept. 20, 2011, at A20.

Siemens, the largest energy conglomerate in Europe, announced that it will stop building nuclear powerplants anywhere in the world. The company had built 17 nuclear power plants in Germany, but it is now concentrating on its renewable energy division, which has experienced the fastest growth of any of its lines of business. Judy Dempsey, Siemens Ends Building of Nuclear Power Plants, N.Y. Times, Sept. 20, 2011, at B2. Russian authorities have decided to extend the life of the country’s nuclear power plants to 45 years from 30 years. These include 11 Chernobyl-era nuclear (RMBK) reactors designed to operate without containment vessels. RMBKs have been retired in Ukraine and Lithuania, but Russia has refused to bow to international pressure to shut down its aging reactors. David Crawford & Rebecca Smith, Russia to Extend Life of Aging Reactors, Wall St. J., Sept. 22, 2011, at A15.

On Friday September 23, the U.S. House of Representatives by a vote of 249-169 approved the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, which is designed to halt EPA Clean Air Act regulations. Fewer than 20 Democrats supported the legislation, which President Obama has threatened to veto. The TRAIN Act would block EPA rules from taking effect while establishing an interagency panel chaired by the Commerce Department to examine the impact of EPA rules on the economy. The legislation is not expected to pass the U.S. Senate.

During down time while in Boston for a family wedding last weekend, I attended the opening session of a Conference on the Constitutional Convention at Harvard Law School. Harvard law professor Larry Lessig and Tea Party Patriot founder Mark Meckler argued at the opening that both fed up conservatives and liberals should support using Article V of the Constitution to call a new convention to rewrite the world's oldest written constitution. I think it is a really bad idea, particularly at a time of extreme political polarization, to put our founding charter up for grabs. My fears were compounded when Texas law professor Sandy Levinson proposed that delegates to such a constitutional convention (that Congress is supposed to call after petitioned by two-thirds of the states) should be selected by lottery.

Sunday, September 18, 2011

New BP Spill Report, Shanghai EPB Suspends Lead Plants, Japan Nuclear Regulations, Sotomayor at Maryland Name Launch (by Bob Percival)

On September 14 the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the U.S. Coast Guard released their final joint report on last year’s oil spill in the Gulf of Mexico. The report was highly critical of BP and its contractors Halliburton and Transocean, while finding that BP bore ultimate responsibility for the spill. Links to each part of the report are available at: http://www.boemre.gov/ooc/press/2011/press0914.htm

On Friday the Shanghai Environmental Protection Board (EPB) ordered operations suspended at two battery manufacturing plants due to the discovery of elevated lead levels in children living nearby. The action was taken after a microblogging campaign by parents of children found to have elevated levels of lead when given health tests at the start of the school year. It was reported that 12 of 25 children found to have elevated lead levels were hospitalized. The levels ranged up to 50 micrograms per deciliter, five times the 10 microgram/dl level of medical concern recognized by health authorities in both the U.S. and China. The plants, which are located in suburban Shanghai near the Pudong International Airport, include one owned by U.S.-based Johnson Controls Inc. A company spokesperson noted that Johnson’s emissions of lead are one-seventh the relevant standard and its wastewater emissions of lead are only one-tenth permissible limits. Johnson’s Shanghai plant is 13 years old and was acquired from another company six years ago. Johnson recently announced that it would build a new $100 million battery plant in China. James T. Areddy, Shanghai Shuts Plants in Lead Probe, Wall St. J., September 17, 2011, at A10. In 1990 the U.S. Supreme Court held that a Johnson Controls’ policy barring women of child-bearing age from positions where they would be exposed to lead from battery manufacturing constituted unlawful sex discrimination. In August China suspended operation of companies that mine and produce rare earth metals in order to conduct a three-month review of their environmental practices. Some suspect that this move, which has sent global prices of compact fluorescent light bulbs soaring, may be motivated by a desire to deflect complaints of protectionism. Keith Bradsher, China Consolidates Grip on Rare Earths, N.Y. Times, Sept. 16, 2011, at B1.

Japan officials are drafting new regulations to govern operation of the country’s nuclear power plants in the wake of the March 2011 tsunami and nuclear accident at the Fukushima Daiichi power complex. Kojiro Irikura, who is chairing the panel drafting regulations for the the country’s Nuclear Safety Commission, stated last week that all plants will have to be able to withstand a 9.0 earthquake and 15-meter tsunami. Only 11 of Japan’s 54 nuclear reactors are currently operating, but federal authorities are trying to encourage the restart of some of the plants. Irikura believes that previous safety guidelines were too lenient because they focused on most likely events rather than worst case scenarios. Chester Dawson, Big Japan Quakes Still a risk, Wall St. J., Sept. 16, 2011, R 10.

Industry efforts to make federal regulations a scapegoat for the sluggish economy continued this week when U.S. Speaker of the House John Boehner told the Economic Club of Washington that “219 new rules” were pending that each would cost the U.S. economy at least $100 million per year. After further investigation Washington Post Fact Checker Glenn Kessler discovered that a significant portion of these “rules” are simply agency actions to transfer federal funds to recipients, many involve rules that generate benefits greatly in excess of their projected costs, and others involve actions already completed or that are not likely to be completed in the near future. As a result Kessler awarded “three Pinnochios” to Boehner. Glenn Kessler, John Boehner’s Misfire on Pending Federal Regulations, Sept. 16, 2011.

On Friday Justice Sonia Sotomayor came to the University of Maryland School of Law to participate in ceremonies marking the launch of its new name as the University of Maryland Francis King Carey School of Law. The new name honors the school’s 1880 graduate whose decendants are responsible for the W.P. Carey Foundation’s $30 million gift to the school. Sotomayor was both warm and eloquent in responding to questions from both Maryland law students and high school students.

Sunday, September 11, 2011

Tenth Anniversary of 9/11, NRC Allows Withdrawal of Yucca Mt. Application, More Fallout from Japanese Nuclear Accident (by Bob Percival)

Sunday September 11 marked the 10th anniversary of the 9/11 terrorist attacks in New York City, Washington, D.C. and Pennsylvania. I remember leaving my home in Washington, D.C. on the morning of September 11, 2001 for the trip to Baltimore and feeling exhilarated by what a spectacularly beautiful day it was. I was on the telephone from my car to a financial services company in New York City when the news broke about the first plane to hit the World Trade Center. I continued to drive to Baltimore and eventually was able to reach my wife who was working in an elementary school on Capitol Hill. She reported that they could see the smoke rising from the Pentagon where another plane had crashed. When I reached Baltimore I called her parents because it was difficult for anyone to make contact by mobile phones given circuit overload.

Two events that occurred the day before and the day after 9/11 remain particularly striking to me. On Monday July 10, 2001 I was a guest speaker at the annual conference of the National Association of Administrative Law Judges in Rehoboth Beach, Delaware. My talk was on the history of environmental risk regulation and I remember noting that two of the concerns that A cartoon published the weekend before depicted someone’s car being hit by a shark talking on a cellphone. While driving back to Baltimore after my morning presentation, I listened in my car to C-Span Radio which broadcast a presentation from the National Press Club by Delaware Senator Joe Biden. He was criticizing the Bush administration for its decision to pursue a missile defense shield for the U.S. Biden argued that future threats facing America were unlikely to include nuclear missiles, but instead would feature unconventional attacks by terrorists, including perhaps suitcase nuclear bombs.

The second memory was that I was scheduled to host a delegation of environmental law professors from Iran who were going to speak at a faculty lunch at Maryland day after 9/11. In May 2001 I had joined Bern Johnson from E-Law International and Richard Lazarus from Georgetown on a trip to Iran to present a week-long environmental law workshop at the University of Tehran. The trip was sponsored by a group called Search for Common Ground. On that trip we met many inspiring individuals from the public interest movement in Iran which was struggling mightily against an oppressive government. I subsequently agreed to serve on the Advisory Board of the University of Tehran’s impressive Journal of Environmental Research. The five-person delegation from Iran was at Georgetown on 9/11 and we agreed to continue with our scheduled program at Maryland the following day. During the program I showed the faculty a film I had made about our workshop that included lots of scenes of daily life in Iran. The five Iranian environmental law professors participated in a panel discussion that touched on the events of the previous day, with the Iranians questioning why their government was immediately considered a suspect. The Iranians reported that their country was in mourning for the victims of the terrorist attacks and that the Mayor of Tehran had sent his condolences to Mayor Giuliani. The group visited my Environmental Law class that day where they discussed their efforts to upgrade Iran’s environmental laws.

I regret that subsequent events have made it impossible for me to continue regular contact with the inspiring public interest community in Iran even though my name is still on the list of advisors to the Journal of Environmental Research, which I receive regularly and read with interest. Prior to 9/11 the Bush administration had tried to justify its abrupt March 2001 about-face on controlling emissions of greenhouse gases by arguing that the cost would wreck the U.S. economy. Yet after 9/11 it spent far more money on the “war on terror” without producing the forecast economic damage (the severe 2008 global recession was spawned by subsequent events). An article in today’s New York Times estimates that the cost of the 9/11 attacks to the U.S. has been $3.3 trillion when one takes into account the physical and economic damage of the attacks ($55 billion and $123 billion, respectively), the cost of increased homeland security ($589 billion), the cost of wars in Iraq and Afghanistan ($1.649 trillion plus $277 in future war funding through 2016 and $589 billion for the future cost of caring for veterans). Amanda Cox, A 9/11 Tally: $3.3 Trillion, N.Y. Times, Sept. 11, 2011, at 13 (special section). For an explanation of how security barriers have become more ecologically conscious, see Henry Fountain, The Age of the Eco-Citadel, N.Y. Times, Sept. 11, 2011, at 23 (“The Reckoning” special section).

Last week the U.S. Nuclear Regulatory Commission (NRC) split 2-2 (with one recusal due to a perceived conflict of interest) in ruling on a motion to deny the Obama administration’s request to withdraw the Department of Energy’s application to site a repository of high-level radioactive waste at Yucca Mountain, Nevada. As a result of this vote, the application will be withdrawn. Ryan TRacy, Regulator’s Vote Dims Prospects for Yucca Project, Wall St. J., Sept. 10, 2011.

Yoshio Hachiro, the new Japanese minister for trade and industry, was forced to resign last week as a result of statements he made about the Fukushima Daiichi nuclear accident. Last Thursday he created a furor by referring to cities in the exclusion zone around the plant as “dead towns.” Later that day he exclaimed “look out, radiation!” while pretending to wipe contamination off his protective clothing on a reporter after returning from a trip to the plant. Martin Fackler, Japense Official Resigns Over Radiation Joke, N.Y. TImes, Sept. 9, 2011.

A bit of good news: the adult smoking rate in the United States fell last year. Only 19.3% of adults in the U.S. smoked in 2010. This is a decrease from the 21% who reportedly smoking five years earlier in 2005.

Monday, September 5, 2011

Obama Blocks Ozone Rule, Chinese Groups Criticize Apple, Nuclear Update, Cheney's Memoir, Expanded Lacey Act (by Bob Percival)

After fierce lobbying from industry groups, President Obama announced on Friday September 2 that he had directed EPA Administrator Lisa Jackson to withdraw a proposal to tighten the national air quality standard for ozone. President Obama cited “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover” (http://www.whitehouse.gov/the-press-office/2011/09/02/statement-president-ozone-national-ambient-air-quality-standards). In a memo directing EPA to reconsider the rule, OMB’s Cass Sunstein noted that EPA could consider a new standard in two years and that other recent rules also will reduce ozone pollution (which presumably would reduce the cost of meeting a tighter standard). Sunstein’s letter is available online at: http://www.whitehouse.gov/sites/default/files/ozone_national_ambient_air_quality_standards_letter.pdf).

The administration’s decision leaves in place the 2008 ozone standard (0.075 ppm over 8 hours) that the Bush administration had promulgated over the unanimous objections of EPA’s Clean Air Scientific Advisory Committee (CASAC). CASAC had recommended that the standard be set within a range from 0.060 to 0.070 ppm. The best that could be said for Obama’s decision is that he is being honest about the reason for the action, unlike his predecessor who frequently directed EPA in secret to weaken regulatory decisions without publicly disclosing the real reasons. And the Obama administration did pledge to complete a new review of the ozone standard by 2013. But it sets a terrible precedent by buying into industry scapegoating of environmental regulations for economic problems, lending credibility to the “now is not the time” argument that always is used to oppose new environmental laws or regulations. In 1990 when the spectacularly successful 1990 Clean Air Act Amendments were about to be adopted by Congress, industry opponents assembled a group of Nobel Prize-winning economists who argued that it would seriously harm the economy, an argument repeated in 1997 when EPA tightened air quality standards. Both predictions proved dead wrong, see Motoko Rich & John Broder, A Debate Arises on Job Creation v. Environmental Regulation, N.Y. Times, Sept. 5, 2011, at B1, but President Obama has now caved to similar pressure, which will make it harder to explain why other EPA regulatory actions also should not be put on hold.

Of course the “now is not the time” argument is remarkably versatile and is employed even in times of robust economic growth when it is argued that “now is not the time” because any new regulation will kill the robust growth. Actually the ozone rule is particularly ill-suited as a target for this argument because it would take many years to implement since states first have to change their implementation plans, obtain EPA approval, and then issue permits. Describing America’s polluting coal, oil and chemical industries as “masters of the art” of “economic scare tactics,” Christopher Swann reminds us that industry claimed the 1990 Clean Air Act would increase electricity prices by 13% when in fact they fell by 20%. Christopher Swann, “Backing Off Air Rules,” N.Y. Times, Sept. 5, 2011, at B2. Moreover the decision to scrap the new rules penalizes companies who invested in new pollution control technology in anticipation of the existing Clean Air Act being implemented in a timely fashion. The decision will hurt the natural gas industry, which had anticipated increased demand for its product as the ozone rules forced dirtier energy providers to close. Liam Denning, Obama Burns Gas Drillers on Ozone, Wall St. J., September 3-4, 2011, at B16. For a devastating insider’s account of the history behind this decision by NRDC attorney John Walke see: http://switchboard.nrdc.org/blogs/jwalke/the_president_sabotages_clean.html.

Of course the Clean Air Act makes it illegal for EPA to consider economic impacts when setting purely health-based standards like national air quality controls (costs can be considered at the implementation stage). Also the President does not have the legal authority to dictate to the EPA Administrator what decision she should make in setting air quality standards under the Clean Air Act. See Robert V. Percival, “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” 79 Fordham L. Rev. 2487 (2011). However, there is widespread agreement that the President could fire EPA Administrator Lisa Jackson if she refused to comply with his directive.  On Friday Jackson appeared to accept the President’s directive while definitely not endorsing it. After citing EPA’s other actions to control air pollution during the Obama administration, she concluded: ”We will revisit the ozone standard, in compliance with the Clean Air Act.”  Her statement is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/E41FBC47E7FF4F13852578FF00552BF8

Last week five Chinese environmental groups led by Ma Jun’s Institute for Public and Environmental Affairs released another report criticizing pollution by Chinese suppliers of Apple. The report, entitled “The Other Side of Apple 2” is based on data collected during a seven-month investigation of Apple’s suspected suppliers. It finds that 27 of these suppliers have released toxic pollutants that have harmed communities or the environment. Apple executives responded to the report by reiterating the company’s commitment to environmental compliance by its suppliers and by agreeing to speak with the authors of the report. Last week the World Bank released a report urging China to act to reduce the rise of non-communicable diseases including diseases caused by air and water pollution. The report, entitled “Toward a Healthy and Harmonious Life,” is available online at: http://www.worldbank.org/content/dam/Worldbank/document/NCD_report_en.pdf. The report notes that China can save a staggering $10.7 trillion from 2010 to 2040 if it can just reduce by 1% its rate of cardiovascular disease.

Japan’s new prime minister Yoshihiko Noda confirmed that he supports a gradual phaseout of nuclear power. Last week, in his first address to the Japanese nation, Noda stated that it would be “unrealistic” to build any new nuclear power plants or to extend the life of existing plants in light of the severe accident at the Fukushima Daiichi reactor complex. Last week the Associated Press released the results of a lengthy investigation concluding that seismic risks at U.S. nuclear power plants have been significantly underestimated, by a figure of 24 times in one case. The study concluded that nearly one-quarter of the 104 nuclear plants in the U.S. may need to be modified to protect against seismic risks. Dina Cappiello & Jeff Donn, Quake Risk to Reactors Greater than Thought, AP (http://hosted.ap.org/dynamic/stories/U/US_NUCLEAR_PLANTS_EARTHQUAKES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT). On September 1 the U.S. Nuclear Regulatory Commission (NRC) released for public comment a draft letter requesting its licensees to reevaluate their facilities’ vulnerability to earthquakes and to supply the NRC with data to assist in the revision of safety standards for seismic risks. 76 Fed. Reg. 54507 (Sept. 1, 2011).

Like President George W. Bush’s memoir (see Nov. 14, 2010 blog post), former Vice President Dick Cheney’s “In My Time” almost entirely ignores environmental issues. The words “climate change,” “global warming,” “Kyoto Protocol,” and even “Christie Todd Whitman” are never mentioned in his book. One would have thought Cheney would be proud enough to explain how he engineered President Bush’s repudiation of his campaign pledge to control emissions of CO2 or his successful effort to neuter EPA Administrator Whitman, issues covered extensively in Bart Gellman’s Angler and Whitman’s own memoir (“It’s My Party Too”). However, Cheney cannot resist describing his failed energy task force as a triumph, not because it changed policy, but rather because he was able to defeat lawsuits seeking greater disclosure of its operations. Cheney portrays environmentalists as naive for promoting renewable energy and expresses pride in his famous statement that “Conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.“ Cheney claims that environmentalists do not understand the need to increase the domestic supply of fossil fuels and again raises the bogus specter of the lights going out if we do not do so. He never mentions Ken Lay or the role of Enron’s energy traders in engineering the brief escalation of electricity prices in California that initially was used to justify formation of his task force.

In 2008 the federal Lacey Act that makes it illegal to import wildlife in violation of U.S. or foreign laws was amended to extend its protections to forest products. The law requires companies to use “due care” to ensure that their suppliers of forest products are in compliance with the law, making it a powerful tool to decrease demand for the fruits of illegal logging operations. Federal agents recently raided a Gibson Guitar factory in Tennessee to investigate whether ebony from India was shipped to the company in violation of Indian law. The raid has been taken as a signal that the U.S. Department of Justice will aggressively enforce the Lacey Act as extended to forest products. Anderson Hardwood Floors expresses strong support for the law as a means of protecting it from unscrupulous competitors who obtain wood through illegal logging. Anderson, which now makes 90% of its products in the U.S., imports wood only from Paraguay where it can be confident that its suppliers are complying with the law. Kris Maher & James R. Hagerty, Forestry Law Splits Wood Industry, Wall St. J., Sept 2, 2011, at B2.

Last week I began teaching Environmental Law at both the Georgetown University Law Center, where I am a visiting professor this fall, and the University of Maryland School of Law. There are 56 students in my Georgetown class and 66 in the Maryland class. In both classes we are using my casebook Environmental Regulation: Law, Science and Policy, which has just been issued by Wolters Kluwer in an electronic edition that enables professors to annotate and update the casebook instantly and to embed interactive video links into the text. The new SmartBook technology also enables students to brief cases, highlight the text, prepare outlines, and access the text from mobile media. These are really exciting developments that have been enthusiastically embraced by the students who have elected to use the SmartBook version of the casebook. For more information see my casebook website at http://www.erlsp.com.