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.”