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.