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

Sunday, October 30, 2011

9th Circuit Rejects Kiobel, Setback for Cape Wind, Nebraska Special Session on Pipeline, Brazil Dam Protest, "Hot Spots" in Japan (by Bob Percival)

Last week seven of eleven judges from the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, joined the Seventh and D.C. Circuits in rejecting the Second Circuit’s Kiobel decision holding that corporations cannot be held liable for violating the law of nations, the predicate for liability under the Alien Tort Statute. A copy of the court’s decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf As discussed in the October 23, 2011 blog post, the U.S. Supreme Court has agreed to review the Kiobel decision and likely will decide the case by the end of June 2012. The Ninth Circuit’s decision in Sarei v. Rio Tinto, revives a lawsuit filed by citizens of Papua, New Guinea, alleging that the Rio Tinto mining corporation purposefully aided and abtetted the New Guinean government in committing genocide and crimes against humanity. The Ninth Circuit easily could have deferred issuing a decision until after the U.S. Supreme Court decides Kiobel, but the judges likely wanted to make the Court aware of their views before it decides Kiobel.

On October 28 the U.S. Court of Appeals for the D.C. Circuit ruled that the Federal Aviation Administration (FAA) had failed to adequately consider the impact on aircraft safety of the Cape Wind project, the first commercial-size offshore wind project in the U.S. Plaintiffs in the case included the Alliance to Protect Nantucket Sound and the City of Barnstable, Massachusetts. The decision is expected to delay the start of construction work on the project.

Republican Governor Dave Heineman has called Nebraska’s legislature back into special session, beginning on Tuesday, to consider legislation to block or to alter the route of the Keystone XL pipeline. The pipeline is designed to carry oil from Canada’s tar sands fields to the United States. Heineman has objected to the project out of fears that it may endangered the quality of groundwater in Nebraska’s Ogallala Aquifer.

Japanese authorities last week confirmed that they had discovered far-flung “hot spots” of radioactive fallout from the accident at the Fukushima Daiichi nuclear power plant. The “hot spots” were found in Kashiwa, 125 miles from the damaged reactor and just 18 miles northeast of Tokyo. Officials attribute the contamination to cesium-laced rain that fell in the area shortly after the accident. Yuka Hayashi, Tokyo Cite Rain for “Hot Spot,” Wall St. Journal, Oct. 25, 2011, at A15. Scientists now estimate that the amount of cesium-137 released in the Japanese accident was 42% of the amount released in Chernobyl in 1986 and that 79% of it drifted over the Pacific Ocean while 19% ended up on Japanese land and 2% in other countries. A. Stohl, et al., Xenon-133 and Caesium-137 Releases into the Atmosphere from the Fukushima Dai-ichi Nuclear Power Plant: Determination of the Source Term, Atmospheric Dispersion, and Deposition, 11 Atmos. Chem. Phy. Discussion 28319 (2011).

Last week presidential candidate Mitt Romney appeared to backtrack in his views on climate change. “My view is that we don’t know what’s causing climate change on this planet,” Romney said, contradicting his statement earlier this year that humans contribute to climate change. Romney stated that it was not wise to spend “trillions and trillions of dollars to try to reduce CO2 emissions,” despite his support as governor of Massachusetts for a nine-state cap-and-trade agreement. Jonathan Wisman, Romney Rivals See Flip-Flop, Wall St. Journal, Oct. 29-30, 2011, at A4.

Sunday, October 23, 2011

U.S. Supreme Court to Hear ATS Case, Chinese Solar Subsidies Challenged, Bolivian Amazon Road Stopped, Pipeline Safety Bill Advances (by Bob Percival)

On Monday October 17 the U.S. Supreme Court announced that it will review a decision holding that corporations cannot be held liable under the Alien Tort Statute (ATS) because the “law of nations” does not apply to their conduct. The decision the Court agreed to review is a September 2010 judgment by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 10-1491 (see blog post of Oct. 4, 2010). The decision was by a split (2-1) panel of the Second Circuit with Judge Cabranes writing the majority opinion and Judge Leval writing a vigorous dissent. Last summer two other U.S. Courts of Appeal expressly rejected the holding in Kiobel - the D.C. Circuit in a case involving Indonesians challenging alleged human rights abuses by ExxonMobil (see blog posts of July 11, 2011) and the Seventh Circuit in a lawsuit against Bridgestone Firestone Tire (see blog post of July 17, 2011). The split in the circuits virtually guaranteed that the Court would agree to hear the case. Although the issue is one of statutory interpretation - the meaning of the ATS’s authorization of suits challenging conduct in violation of the “law of nations” -- it essentially will require the Court to address the scope of international law. The case is likely to be argued next spring and decided by the end of June 2012.

On October 19 a coalition of seven American companies filed a complaint with the U.S. Department of Commerce and the International Trade Commission arguing that the Chinese government has unfairly subsidized Chinese companies making solar panels. The U.S. companies are asking for the agencies to impose tariffs of more than 100% on solar panels imported from China. Solar companies based in the U.S. have been laying off workers due to competition from Chinese producers who have driven down the price of such panels from $3.30 per watt in late 2008 to between $1.00 and $1.20 per watt today. China has sold more than $1.6 billion in solar panels to the U.S. in the first eight months of 2011. Environmentalists are concerned that the imposition of tariffs could cripple the diffusion of solar technology. The Chinese ministry of commerce described the complaint as creating “a lose-lose situation” that “will cause an adverse impact on the bilateral trade interests of the two counties.” Keith Bradsher, China Charges Protectionism in Call for Solar Panel Tariffs, N.Y. Times, Oct. 22, 2011, at B6.

Last week President Evo Morales of Bolivia responded to protests by indigenous groups by suddenly canceling the construction of a highway through an ecologically sensitive region of the Amazon. The decision was made after indigenous groups completed a two-month march over hundreds of miles to the capital of La Paz to demand that the project be halted. The highway was to be built by a Brazilian construction firm. The indigenous groups feared that its construction would facilitate the expansion of coca leaf farming into the Isiboro Secure National Park, spawning increased deforestation. John Lyons, Bolivian Chief Scraps Road, Wall St. Journal, Oct. 22-23, 2011, at A12.

On October 17 the U.S. Senate unanimously approved a bill updating pipeline safety regulations. A similar bill has been approved by a House committee and awaits a vote on the House floor. The legislation is a response to the September 9, 2010 pipeline explosion in San Bruno, California. It will require more testing of pipelines, increase the number of pipeline inspectors and increase fines for major violations of pipeline regulations to as much as $2.5 million. Ryan Tracy, Pipeline-Safety Measure Passes Senate Unanimously, Wall St. J, Oct. 18, 2011, at A6. In an effort to win approval of the Keystone XL pipeline, TransCanada Corporation agreed last week to post a $100 million bond to ensure that funds would be available to respond to future spills. The company also agreed to build a concrete containment ditch to surround the pipeline when it crosses through environmentally sensitive areas of Nebraska. These and other concessions are designed to prevent the Nebraska legislature from forcing significant changes in the pipeline’s proposed route.

Last week Andarko Petroleum agreed to pay BP $4 billion to cover its share of liability for the Deepwater Horizon oil spill. Andarko owned a 25% stake in the project. Andarko agreed to drop its claim of gross negligence against BP and to transfer its stake in the project back to the British company. The money will be placed in BP’s $20 billion compensation fund for victims of the spill. Last week BP received preliminary approval to drill its first new well in the Gulf since the April 2010 spill. U.S. regulators also announced last week that they will inspect the an offshore oil drilling rig built in China that Repsol YPF SA, a Spanish company, plans to deploy in Cuban waters near the coast of Florida. Russell Gold, U.S. Will Inspect Cuban Rig, Wall St. Journal, Oct. 17, 2011, at A3.

Last week I visited my alma mater Macalester College in St. Paul, Minnesota. On Thursday October 20 I had dinner with faculty from the school’s interdisciplinary Environmental Studies department. On October 21 I gave guest lectures to a seminar on Climate and Society taught by Professor Louisa Bradtmiller and to Professor Katie Pratt’s Environmental Politics and Policy class. I had a wonderful lunch with students interested in environmental law followed by individual meetings with the school’s Environmental Studies faculty and the co-directors of the school’s Legal Studies program. It is so encouraging to see how strong student interest in environmental law is at the undergraduate level.

Sunday, October 16, 2011

Australian Carbon Tax, Ozone Lawsuit, Uganda Oil Scandal, 168th House Anti-Environment Vote, ABA SEER Conference (by Bob Percival)

On October 12 the lower house of the Australian Parliament approved by a narrow 2-vote margin (74-72) a carbon tax to combat climate change. Approval of the tax, which is expected to become law after being approval by a larger margin in the upper house of Parliament, represents a significant victory for Prime Minister Julia Gallard’s Labor government. Under the legislation more than 400 of Australia’s largest emitters of greenhouse gases (GHGs) will pay a tax of A$23 ($23.80 US) per ton of GHG emissions beginning in July 2012. This is a particularly significant development for global environmental law because Australia was the last developed country to approve the Kyoto Protocol except for the U.S., which remains the sole holdout. Due to its economy’s heavy dependence of fossil fuel industries, Australia refused to ratify the Kyoto Protocol until 2008. Peter Smith & Pilita Clark, Gillard Scores Victory as MPs Support Carbon Tax, Financial Times, Oct. 12, 2011.

On October 11 five national environmental and health groups in the U.S. filed suit to challenge the national ambient air quality standard (NAAQS) for ozone initially promulgated by the Bush administration and reinstated by the Obama administration after it decided for now not to tighten the standard. The ozone NAAQS sets the permissible concentration of the pollutant at .075 parts per million, despite the unanimous recommendation by EPA’s Clean Air Scientific Advisory Committee that it be set between .060 and .070 ppm. John M. Broder, Groups Sue After EPA Fails to Shift Ozone Rules, N.Y. Times, Oct. 12, 2011.

Last week three officials of the government of Uganda resigned due to an investigation of alleged bribery by Tullow Oil, a British company seeking to develop the country’s estimated 2.5 billion barrel oil deposits that were discovered in 2006. The officials who resigned included foreign minister Sam Kutesa, the governing party’s parliamentary whip and a lower level labor minister. Tullow had previously caused controversy by proposing to drill for oil in protected areas of the country. The Ugandan Parliament voted to impose a temporary moratorium on new oil development projects while the bribery allegations, which Tullow vehemently denies, are investigated.

Congressman Henry Waxman revealed last week that the U.S. House of Representatives has voted 168 times this year against the environment, making it “the most anti-environmental Congress in history.” Fortunately the Democratic-controlled U.S. Senate has prevented the measures approved by the House, many of which would strip EPA of authority to prevent air or water pollution, from becoming law. On October 14 the House approved a measure to block EPA from regulating coal ash as a hazardous waste. The bill would leave the problem largely to state regulation. A total of 37 Democrats joined Republicans in supporting the bill, which was approved by a vote of 267 to 144.

After class on October 13 I flew to Indianapolis in order to attend the opening of the 19th Annual Fall Meeting of the American Bar Association’s Section on Environment, Energy & Resources. More than 300 people attended the event. I was the opening keynote speaker and I spoke about “The Global Transformation of Environmental Law.” An abstract of my remarks is available online at: http://www.law.umaryland.edu/about/features/documents/aba_keynote.pdf. After my presentation I attended a session on the impact of the Fukushima Daiichi nuclear accident on regulation of nuclear power and a session on the Supreme Court’s American Electric Power v. Connecticut decision before having to return to Washington.

As a member of Maryland’s law school appointments committee I spent October 14 and 15 interviewing faculty candidates at the annual American Association of Law Schools (AALS) Faculty Recruitment Conference in Washington, D.C. We interviewed more than 30 candidates over the two days, an exhausting process, but one that was not without its intellectual rewards. After we finished on Saturday I was able to attend the final half hour of an open house for my dear friend Zhang Jingjing, her husband, and new baby, at the home of her in-laws in Garrett Park, Maryland. Jingjing, who has been called “the Erin Brockovich of China,” is currently the Deputy Director of PILnet: Global Network for Public Interest Law in Beijing. Her daughter Meghan, whose Chinese name means “little flower” is truly adorable. Jingjing will be returning to China on October 25.

Tuesday, October 11, 2011

EU Airline Carbon Cap Supported, Chiu Symposium, Koh Lecture, Keystone XL EIS, Arctic Ozone Hole & China Course (by Bob Percival)

On October 6 Juliane Kokott, the European Court of Justice Advocate General, advised the Court that it should reject a legal challenge by non-EU airlines to their upcoming inclusion in the EU’s cap-and-trade program for carbon emissions. Ms. Kokott opined that: "The inclusion in the EU emissions trading scheme of flights of all airlines from and to European airports is compatible with the principle of fair and equal opportunity laid down in the Open Skies Agreement. Indeed it is precisely that inclusion that establishes equality of opportunity in competition, as airlines holding the nationality of a third country would otherwise obtain an unjustified competitive advantage over their European competitors if the EU legislature had excluded them from the EU emissions trading scheme." Her opinion is likely to carry considerable weight with the Court, which is expected to rule on the challenge in the near future.

On October 5 & 6 the University of Maryland School of Law hosted a terrific symposium in honor of my late colleague Hungdah Chiu, one of the top East Asian legal scholars who played a major role in helping Taiwan improve relations with the PRC. Professor Jerry Cohen of NYU, the world’s leading China law scholar, delivered the opening address. The Thursday keynote on “Professor Hungdah Chiu, Taiwan and Cross-Strait Relations” was presented by Su Chi, former secretary general of Taiwan’s National Security Council. He reviewed the history of relations between Taiwan and the PRC and the important role that Professor Chiu played in shaping them. Su argued that Taiwan is no longer the “tail wagging two dogs” (the U.S. and the PRC).

In a lecture at Maryland on October 6 State Department Legal Adviser Harold Koh delivered a strong defense of the Obama administration’s policies. Koh’s lecture on “International Law in a Post 9/11 World” was the Pearl Laurence I. and Lloyd M. Gerber Memorial Lecture given annually at Maryland. Koh disputed the notion that the Obama administration has simply continued the Bush administration’s policies to combat terrorism. He articulated six ways in which Obama’s policies are significantly different from Bush’s. These include that the Obama administration has (1) placed greater reliance on legislation rather than asserting inherent constitutional authority, (2) uses International law to informs its actions, (3) has absolutely banned torture and insisted on humane treatment for prisoners, (4) has employed a mixed paradigm that observes both the laws of war and enforcement of domestic law, (5) is fighting Al-Quaeda and the Taliban rather than a “global war on terror,” and (6) that the Obama administration employs a fact-based, rather than a label-based approach, in determining legitimate targets. Koh explained that while he formerly focused on learning the names of his students, he now must concentrate on knowing the names of terrorists.

Last week it was revealed that Cardno Entrix, a Houston-based environmental contractor hired by the U.S. State Department to help the agency prepare the environmental impact statement (EIS) for the proposed Keystone XL pipeline project, has close ties to TransCanada, the company proposing to build the pipeline. TransCanada is a major client of Cardno Entrix and it recommended that the State Department hire the consultant, who also is playing a major role in organizing public hearings on the project. Environmentalists suggested that this relationship undercuts the credibility of the EIS, while State Department officials defended it. Elisabeth Rosenthal and Dan Frosch, Pipeline Review Is Faced With Question of Conflict, N.Y. Times, Oct. 8, 2011, at A11.

Ozone holes have been common over the Antarctic, but last week the journal Nature reported that the first significant ozone hole had opened up over Arctic regions last winter. The hole, which reached as far south as Russia and Mongolia last February, surprised scientists who attribute it to releases of chlorofluorocarbons (CFCs) during the twentieth century. The Montreal Protocol that phases out such ozone-depleting substances on a global basis has now been signed by 191 countries and is considered the most successful international treaty to protect the environment. The Nature article, Manney, et al., Unprecedented Arctic Ozone Loss in 2011, is available online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature10556.html.

Like millions of other uses of Apple products, I was saddened by the death of Steve Jobs last week. As someone who has regularly attended the annual Macworld conference, I had watched Jobs deliver several of his famous keynote addresses, including the introduction of iTunes in 2001, the iPhone in 2007 and the conference where Jobs gave free copies of the Keynote presentation program to everyone attending his keynote address. Under Jobs’ leadership Apple made so many insanely great products that I often wondered whether the company could have rescued the auto industry by making an iCar. There is no other corporate leader that can fill Jobs’ shoes and his passing leaves a great void.

Last week I agreed to teach a summer course on Comparative U.S./Chinese Environmental Law from July 23-August 4 at Vermont Law School. The course is likely to be followed by a class field trip to China. On October 10 I hosted an informational session for Maryland’s upcoming student trip to China during spring break from March 8-18, 2012. There is still space available on the trip and I am delighted that a few of my Georgetown students have indicated that they may join us.

Tuesday, October 4, 2011

Myanmar Halts Dam, Girl Scouts Limit Palm Oil Use, Geoengineering Push Urged, VJEL China Symposium (by Bob Percival)

Perhaps the most stunning news of the last week was the decision by President Thein Sein of Myanmar to cancel the construction of the $3.6 billion Myitsone dam project on the Irrawaddy River in the northern part of the country. The cancellation occurred after vigorous environmental opposition to the dam endorsed by 1991 Nobel Peace Prize winner Aung San Suu Kyi, who recently emerged after seven years of house arrest imposed by the country’s former military government. Myanmar residents questioned why the country was planning to flood an area the size of SIngapore and cause immense environmental damage, as documented in an environmental impact assessment, for a project from which 90% of the electrical generation was to be exported to China. The cancellation apparently has angered Chinese officials, including Lu Qizhou, president of the China Power Investment Corporation that was constructing the 6,000 MW project.

Last week the Girl Scouts of America announced that they will move to reduce the use of palm oil in Girl Scout cookies in response to an environmental campaign launched by two teenager scouts from Michigan - Madison Vorva and Rhiannon Tomtishen. The campaign was launched after revelations that palm oil plantations in Southeast Asia had been contributing to massive deforestation that contributes to climate change. The Girl Scouts announced that they have directed their suppliers to use as little palm oil as possible in Thin Mints, Samoas, and Trefoils and to switch to sustainable palm oil by 2015. Julie Jargon, Girl Scouts Move to Limit Palm Oil in Cookies, Wall St. J., Sept. 28, 2011.

The Bipartisan Policy Center’s 18-member Task Force on Climate Remediation Research has endorsed a crash research program into geoengineering as a means to protect the planet from climate change. Geoengineering includes proposals to scatter particles in the upper atmosphere to reflect sunlight away. A copy of the report is available online at: http://www.bipartisanpolicy.org/sites/default/files/BPC%20Climate%20Remediation%20Final%20Report.pdf

An independent panel in Japan revealed on September 30 that the country’s Nuclear and Industrial Safety Agency had sought to enlist employees of the country’s nuclear power plants to attend public forums and voice support for nuclear power. Mitsuru Ore, Japan Nuclear Agency Adds to Mistrust, Wall St. J., Oct. 1-2, 2012, at A11. This tactic seems to mimic that employed by the American Petroleum Institute in organizing “energy citizen” rallies enlisting employees of fossil fuel power plants to exaggerate opposition to environmental regulation, except for the additional scandal of a government agency being involved in promoting the rallies. Another panel advising the Japanese government concluded that it will be difficult to ensure the financial stability of the Tokyo Electric Power Company without allowing it to restart some of its undamaged nuclear reactors. Mitsuru Ore & Kana Inagaki, Tepco Reactor Restarts Are Push, Wall St. J., Oct. 4, 2011 at B5.

This week I received a copy of the latest issue of the Vermont Journal of Environmental Law with articles from Vermont Law School’s March 2011 symposium on “China’s Environmental Governance.” The articles include John Nagle’s “How Much Should China Pollute?,” Jason Czarneski’s “Climate Policy & U.S. China Relations,” Adam Moser’s “Pragmatism Not Dogmatism: The Inconvenient Need for Border Asjustment Tariffs Based on What Is Known About Climate Change, Trade and China,” Jennifer Turner’s “Choke Point China: Confronting Water Scarcity and Energy Demand in the World’s Largest Economy,” and my article on “China’s ‘Green Leap Forward’ Toward Global Environmental Leadership.” The articles are not yet posted online, but hopefully the VJEL will soon update its website.