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.