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, November 27, 2011

COP-17 OPENS IN DURBAN, CLIMATE FUND DISPUTE, CARBON PRICES AT RECORD LOWS, BRAZIL SUSPENDS CHEVRON DRILLING (BY BOB PERCIVAL)

On Monday November 28 the 17th Conference of the Parties (COP-17) to the UN Framework Convention on Climate Change also meeting as the 7th Meeting of the Parties to the Kyoto Protocol convenes in Durban, South Africa. Even though developed countries’s Kyoto Protocol commitments to reduce emissions of greenhouse gases (GHGs) during the 2008-2012 period will expire next year, there seems to be little prospect of a new global agreement to succeed Kyoto. In an apparent effort to undermine the conference, thousands of more stolen emails from the Climate Research Unit of the University of East Anglia again have been posted anonymously on the internet, this time on a Russian server. They are from the same time period as the emails posted two years ago and they do not appear to contain any significant new revelations. Investigations spawned by the first incident led to the climate scientists whose emails had been purloined being cleared of any wrongdoing, but they gave some politicians a convenient excuse to retract their support for policies to control GHG emissions.

In pre-COP negotiations, the U.S. reportedly refused to agree to a new blueprint for the Green Climate Fund to provide financial assistance to developing countries for the transition to low-carbon economies. The fund, created in 2009 at COP-15 in Copenhagen, was supposed to provide $100 billion in annual assistance by the year 2020. Pilita Clark & Javier Blas, US Blocks Key Fund in Climate Agreement, Financial Times, Nov. 25, 2011, at 1. This will be a major issue to be subject to further negotiations at the Durban COP.

Last week the prices of carbon allowances fell to record lows. The price of UN-backed certificates of emission reductions (CERs) fell to €5.90 (approximately $7.85). This represents a decline in price of more than 50 percent since last June. On November 24 the price of EU cap-and-trade allowances hit a record low of €7.80 (approximately $10.35) per ton, a 15 percent decline in one week. Javier Blas, Carbon Prices Tumble to Record Low, Financial Times, Nov. 25, 2011, at 22. The decline may be due in part to fears of a European economic collapse if the current financial problems of countries in the Eurozone are not adequately resolved.

Last week the government of Brazil imposed a moratorium on offshore drilling by Chevron while it investigates the causes of a 3,000-barrel oil spill that occurred earlier this month at Chevron’s Frade project. On November 21 IBAMA, the Instituto Brasileiro do Meio Ambiente E Dos Recursos Naturais Renov├íveis (Brazilian Institute of Environment and Renewable Natural Resources), the Brazilian government agency responsible for regulating Chevron’s activities, fined the company ₨50 million (approximately $28 million), and it indicated that additional fines of up to ₨40 million could be imposed. The chief executive of Chevron’s Brazilian unit, George Buck, apologized for the spill during a hearing before Brazil’s Congress on November 23.

Sunday, November 20, 2011

O'Malley Attacks Clinic, Apple Audits China Suppliers, Chevron Brazil Spill, IPCC on Severe Weather, Renewable Energy, ABA Panel (by Bob Percival)

On November 16 Maryland Governor Martin O’Malley released a shocking letter denouncing a lawsuit filed last year by Maryland’s Environmental Law Clinic to stop poultry waste pollution of the Chesapeake Bay. The Governor’s letter claims that the lawsuit perpetuates an “ongoing injustice.” Despite the fact that the Clinic has won every motion in the case, he characterizes the lawsuit as of “questionable merit” and suggests that the clinic actually should be representing the defendants. A copy of the Governor’s letter is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). The governor’s action revives an attack on the clinic that was soundly beaten back in spring 2010 when the national legal community denounced an effort by Eastern shore legislators to cut the relatively minimal funding the law school receives from the state in an effort to force the clinic to drop its ground-breaking lawsuit against corporate agribusiness for polluting the Bay. On November 17 Maryland law dean Phoebe Haddon responded to the Governor with a letter defending the law clinic. She noted that there were “good grounds for the lawsuit, which seeks to protect the Chesapeake Bay for all Marylanders,” and she cited “inaccuracies” in the governor’s letter. A copy of Dean Haddon’s response is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). In an editorial the Baltimore Sun denounced the governor’s letter as “odious” and “shocking,” an attempt “to bully” our environmental law clinic, and “to interfere with ongoing civil litigation” by taking “the side of polluters against those who are simply trying to enforce federal law.” A link to the Baltimore Sun editorial criticizing the Governor’s letter is HERE.

Last week it was revealed that Apple Corporation has hired an outside firm to audit environmental compliance by companies in its supply chain in China. On November 15 Apple representatives met in Beijing with a coalition of environmental groups who released reports in January and August 2011 criticizing environmental compliance by Apple’s Chinese suppliers. See blog post of September 5, 2011. Ma Jun, director of the Institute of Public and Environmental Affairs, which had released the previous reports, described Apple’s actions as “progress,” but “just the beginning.” Kathrin Hills & Joseph Menn, Apple Launches Audit of Chinese Suppliers, Financial Times, Nov. 17, 2011.

On November 15 the Chevron Corporation announced that it had contained the flow of oil leaking from the ocean floor where it had drilled a deep water appraisal well at its Frade project off the coast of Brazil 230 miles northeast of Rio de Janeiro. Brazil’s federal police have opened an investigation of Chevron in connection with the spill. Brazilian authorities are expressing increasing annoyance at what they characterize as Chevron’s lack of transparency concerning the oil spill. They have threatened Chevron executives with criminal prosecution if it is determined that they intentionally misled Brazilian authorities and they are insisting that Chevron pay compensation for natural resource damages. Simon Romero, Brazilian Officials Warn Chevron Over Offshore Spill, N.Y. Times, Nov. 19, 2011, at A8.

On November 18 the Intergovernmental Panel on Climate Change (IPCC) reported that some severe weather events already can be attributed to ongoing climate change. Ongoing weather anomalies include the worst drought in the Horn of Africa in 60 years, heavy snow in the United States, and severe flooding in Thailand. However, the IPCC agreed that it was premature to attribute more intense hurricanes to climate change. It predicted that extreme weather events will occur more frequently and with greater intensity even as human vulnerability to them will grow in the future. Justin Gillis, Panel Finds Climate Change Behind Some Extreme Weather, N.Y. Times, Nov. 19, 2011.

Last week a spate of investments were announced in large renewable energy projects around the world. On November 17 the World Bank announced that it would help fund a massive solar energy project to be built in Morroco’s desert. The Ouarzazate solar complex, which will be built southeast of Marrakesh, will have a capacity of 500 megawatts, enough to power 90,000 homes. Morocco plans to build five large solar energy complexes by 2020 with a total capacity of 2,000MW. Pilita Clark, Morocco Wins Green Light for Solar Plant, Financial Times, Nov. 18, 2011, at 6. General Electric agreed last week to help build a $100 million wind energy farm in Mongolia. The project is expected to meet 5% of Mongolia’s energy needs when it is completed in the second half of 2012. Kathrin Hills, GE Signs $100 Million Mongolia Wind Deal, Financial Times, Nov. 18, 2011, at 17. Fourteen foreign energy companies have asked the Spanish government for more than 100 million Euros in compensation for Spanish government’s March 2011 reductions in subsidies for solar energy. The compensation is being sought under the 1998 Energy Charter Treaty. Miles Johnson, Investors Seek Compensation for Cuts to Spain’s Solar Subsidy, Nov. 18, 2011, at 17.

This has been a busy week for me. On Tuesday I presented a paper “On Coal, Climate and Carp: Reconsidering the Common Law of Interstate Nuisance” at a Faculty Research Workshop at Georgetown. The paper focuses on three recent decisions involving efforts by states to use federal or state common law to control transboundary pollution, including North Carolina’s effort to control pollution from TVA’s coal-fired power plants, the American Electric Power climate change litigation, and efforts by Great Lake states to stop the spread of invasive species. The paper argues that the common law remains an important backstop to prod regulatory action to redress environmental problems that are newly emerging or long-neglected by regulators.

On November 17 I spoke on a panel on presidential review of rulemaking at the fall meeting of the American Bar Association’s Section on Administrative Law and Regulatory Pracrice. On the panel with me were former Bush White House Counsel and former Ambassador to the EU (recess appoinment) C. Boyden Gray, current OMB general counsel Boris Bershteyn, Brian Callanan from the office of Senator Rob Portman, and Alan Raul from Sidley & Austin. Boyden Gray took issue with my opening statement when I noted that if President Reagan had had directive authority over agencies, EPA would have been forced to abolish all limits on lead in gasoline. The White House had forced EPA to propose such a disastrous policy, but they ultimately backed down in the face of environmental opposition. Bershteyn had the best line of the day when he said that he was glad that OMB was being criticized for events that occurred during the Reagan administration. However, it was quite telling that Callanan argued that by vetoing the ozone rule, President Obama had conceded that a super cost-benefit mandate, which is not in the current Clean Air Act, should be adopted by enactment of Senator Portman’s proposed Regulatory Accountability Act (RAA). I argued that the RAA would paralyze efforts to protect public health and the environment by codifying the Toxic Substance Control Act’s “least cost” mandate that prevented the U.S. from banning asbestos, a substance that has now been banned by virtually all other developed countries.

On November 18 I attended a conference on regulatory takings at Georgetown cosponsored by Vermont Law School and the Georgetown University Law Center. Tom Merrill gave a great presentation on the way courts are interpreting the Supreme Court’s 1978 Penn Central decision. Gregory Stein from the University of Tennessee explained why the Supreme Court’s Palazzolo decision has not had much impact on takings decisions. Georgetown Dean Michael Treanor, whose student note in the Yale Law Journal has become a classic on the history of the takings clause, gave the keynote address explaining why the original understanding of the clause only required compensation for physical takings of property.

On Friday night November 18 Maryland’s Environmental Law Program held its 20th annual program winetasting party. Nearly 200 students, faculty, and alums attended the event which featured a vertical tasting of the wines of Chateau Pichon Lalande, some celebrated California cabernets from the 1970s, and the certifiably perfect 1982 Chateau Mouton Rothschild. This year’s “mystery wine,” tasted blind, was a pinotage from South Africa. None of the participants in the contest identified it correctly, but Delegate Jon Cardin did get the vintage (2009) correct. The event confirmed once again that wine truly is “nature’s thanks for preserving the earth.”

Tuesday, November 15, 2011

Keystone XL Decision Delayed, China Air Pollution Monitoring, EU to Pass U.S. as Oil Importer, Australian Carbon Tax (by Bob Percival)

On November 10 the Obama administration announced that it would delay a decision on whether or not to approve TransCanada’s Keystone XL pipeline project to transport heavy tar sands oil to the U.S. The delay will give the administration time to consider routes that skirt around the important Ogalala aquifer in Nebraska. It also should postpone the decision until after the 2012 presidential election, extricating President Obama from a “no-win” situation. Christi Parsons & Paul Richter, Decision on Pipeline Put Off Until 2013, Los Angeles Times, Nov. 11, 2011, at A10.

The latest chapter in the long-running controversy over the accuracy of air pollution monitoring in China occurred last week when Chinese authorities announced that 40 lucky people per week would be allowed to tour Beijing’s air quality monitoring center. Air pollution in Beijing has been particularly nasty this fall and the U.S. Embassy’s online air quality monitoring, made available online through an iPhone app and Twitter, reportedly has been embarrassing Chinese authorities. Last year a Wikileaks cable revealed that the Chinese government had privately asked the U.S. Embassy to stop posting its monitoring data online. Pan Shiyi, a Chinese real estate developer with 7 million followers of his blog, asked the Chinese public to vote on whether more stringent air pollution standards should be adopted. More than 30,000 of the 40,000 respondents voted “Yes”. Andrew Jacobs, Beijing Acts to Calm Anger Over Reporting of Air Pollution, N.Y. Times, Nov. 9, 2011.

Last week the International Energy Agency (IEA) released its annual report. It reported that global carbon dioxide emissions grew in 2010 at the “almost unprecedented” rate of 5.3% to 30.4 billion metric tons. James Herron, Energy Agency Warns Government to Take Action Against Global Warming, Wall St. J., Nov. 9, 2011. The IEA also forecast that in 2015 the EU will surpass the U.S. as the world’s largest importer of oil. This somewhat surprising prediction is a result of the dramatic increase in U.S. fuel economy standards and increased U.S. natural gas and oil production. The report also forecast that by 2020 China would overtake the EU as the world’s largest importer of oil. Global demand for oil is expected to grow from last year’s 87 million barrels a day to 99 million barrels per day by 2035. The IEA concluded that every additional $1 invested in fossil fuel production will cause $4.30 in environmental damage after 2020. Julia Werdigier, Europe’s Oil Imports Poised to Pass Level of U.S., N.Y. Times, Nov. 9, 2011.

On November 7 the Australian Parliament gave final approval to a carbon tax. Beginning in July 2012 the top 500 emitters of greenhouse gases will be required to pay a tax of approximately $24 for each ton of carbon they emit. Beginning in July 2015 an emissions trading program will be launched. The decision represents a huge victory for Australian Prime Minister Julia Gillard as well as a dramatic turnabout for a country that until late 2008 had been the only developed country other than the U.S. that had failed to ratify the Kyoto Protocol.

On November 9 the U.S. Department of Commerce opened an investigation of charges that China is unfairly dumping below cost solar panels on the market. A new trade group representing buyers and installers of solar panels was established this week to press the argument that any trade sanctions imposed on Chinese solar manufacturers will cost U.S. jobs. Due largely to increased Chinese exports, prices of solar panels have plunged from $3.30 per watt in 2008 to only $1 to $1.20 per watt today.

On Friday Nov. 11 I spoke at a conference on “CERCLA and the Future of Liability-Based Environmental Regulation” at Southwestern University Law School in Los Angeles. Professor Percival compared CERCLA with other countries’ programs for remediation of environmental contamination. The conference was terrific. It featured lots of veterans from the early history of CERCLA and the war stories we shared were absolutely fascinating. Southwestern has what Dean Bryant Garth accurately described as the best building of any law school - a 1929 art Deco former Bullocks department store on Wilshire Boulevard. I joined several of the speakers on a fabulous tour of the building that emphasized how the school has gone to great links to preserve its historic builgin. I spent Saturday in a cold and rainy Vancouver, Canada, before returning to D.C. on Sunday.

Saturday, November 5, 2011

China Bans Incandescents, EU Airline Carbon Trading Attacked, Oral Argument Set in Challenges to EPA Climate Regulations (by Bob Percival)

Last week China announced that it will ban the import and sale of 100-watt and higher incandescent light bulbs beginning on October 1, 2012. The ban will be extended to 60-watt bulbs on October 1, 2014 and to 15-watt and higher bulbs on October 1, 2016. With this move China joins the EU and the United States in phasing out these notoriously inefficient light bulbs that waste most of their energy giving off heat rather than light.

The U.S. Food and Drug Administration (FDA) has asked Chinese authorities for help in implementing the Food Safety Modernization Act. The law, which was enacted in January 2011, requires U.S. importers of food to verify through their suppliers the safety of their imports. The FDA is seeking greater information sharing with China and other countries that export food to the U.S. The U.S. actually exports more agricultural products to China than China exports to the U.S., but enforcement of Chinese food safety laws has been notoriously weak, as Li Tairan, director of food safety at China’s Ministry of Health confirmed at a food safety conference on November 2. Laurie Burkitt, FDA Seeks Beijing’s Help Over Food Safety, Wall St. J., Nov. 4, 2011, at A8.

Last week the governing council of the UN’s International Civil Aviation Organization (ICAO) urged the European Union to drop its plan to include airlines flying to or from EU countries in its cap-and-trade program for carbon emissions. A total of 26 countries, including the U.S., China, Russia, and India had lobbied for the declaration, which argues that the ICAO is the best forum for resolving such issues. EU Climate Commissioner Connie Hedegaard criticized these countries for focusing solely on what not to do to reduce GHG emissions from the airline sector. The EU regulations will go into effect on January 1, 2013. Meanwhile the U.S. House of Representatives’ vote to prohibit U.S. airlines from participating in the EU’s cap-and-trade program has received a lot of attention, but for now it stands virtually no chance of being adopted by the full Congress. A report issued by Bloomberg News Energy Finance estimates that the cost to the airlines of participating in the EU program would be less than one-quarter of one percent of revenue from the routes subject to it in 2012 and about one-half of one percent in 2020. Pilita Clark, Nations Step Up Fight Over Air Carbon Permits, Financial Times, Oct. 30, 2011.

On Nov. 2 the U.S. Court of Appeals for the D.C. Circuit announced that it will hear two days of oral argument on February 28 & 29, 2012 on the consolidated legal challenges to EPA’s regulations governing greenhouse gas (GHG) emissions. The panel hearing the case will be Judges Sentelle, Rogers, and Tatel. Judge Sentelle is a severe critic of environmental regulation, but Judges Rogers and Tatel are much more supportive. On November 3, I participated in a dinner of “Distinguished Environmental Advocates” at Bistro Bis in Washington, D.C. The dinner was sponsored by ABA’s Section on Environment, Energy & Resources and the Environmental Law Institute. George Frampton addressed the group and argued that the Fukushima Daiichi accident would not have a gret impact on the demand for nuclear power because the Chinese and Russian governments still are committed to building new nuclear power plants. I expressed disagreement with this view, noting that public opinion in Japan, Germany and China is now distinctly anti-nuclear due to the accident. At the dinner I asked several of the major figures in the environmental bar for their predictions concerning the fate of the legal challenges to EPA’s regulation of GHG emissions. Virtually everyone agreed that EPA’s endangerment finding would be upheld aby the D.C> Circuit. Many thought EPA would beat back all of the legal challenges to its regulation of GHG emissions. Surprinsgly, this group even included some prominent industry lawyers. However, a few others, including a prominent supporter of EPA, believed that EPA’s tailoring rule would be struck down.

I visited Goucher College on November 1 to give a lecture on the Law of the Sea to an environmental studies class. It is really heartening to see how many colleges and universities are expanding their environmental offerings at the undergraduate level.