I am back in D.C. after ten days in Cuba on a people-to-people exchange trip sponsored by the National Geographic Society. As anticipated, very limited internet access there precluded me from posting a blog entry a week ago. The trip was an amazing journey. A 40-minute flight from Miami seemed to transport us back more than 50 years in time to a land with little modern transportation or communication technology and a place where the Cold War still rages. Imagine a country with few cellphones, no private internet access, and where the only advertising is propaganda extolling the virtues of the socialist revolution more than half a century ago.
On our first full day in Havana we met with historic preservationist Miguel Coyula, who discussed the efforts being made to restore Havana’s spectacular colonial architecture. We then spent the day exploring old Havana. The next day we met with a group of Cuban officials, including Elpidio Pérez Suárez, a justice of Cuba’s Supreme Court, at the National Union of Jurists to discuss Cuba’s legal system. We then visited Finca Vigia, Ernest Hemingway’s home, which is located a short distance east of Havana. On our third full day in Cuba we traveled west of Havana to visit the famous Robaino tobacco farm near Pinar Del Rio and we stayed overnight in the picturesque Viñales Valley that features beautiful karst scenery. We later visited the Las Terrazes Bio-Park and a school that incorporates ecological education in all of its classes. We then shifted our base of operations to Cienfuegos from where we visited historic old Trinidad, a World Heritage site, and the Playa Giron where the ill-fated Bay of Pigs invasion took place in April 1961. We then returned to Havana where we met the famous Cuban artist José Fuster and toured the Cementerio Colon, an historic old cemetary. On our last full day in Cuba my wife and I split away from the group to attend a baseball game in Havana between Metropolitana and Granma. We were struck by the quality of play -- close to major league caliber -- as well as the absence of commercialism in the stadium (the only billboard display was a sign announcing in Spanish that “Sport is the right of the people”), and the passion of the fans.
We were blessed with wonderful guides - Christopher Baker (http://www.christopherbaker.com/) who has authored several books about Cuba, including the wonderful “Mi Moto Fidel” about his motorcycle trip around the island, and Neyla Carpio, who works for the Cuban government and passionately disagreed with Baker’s criticisms of the ruling regime. One could not but be struck by the irony of people being transported on ox carts next to billboards extolling the virtues of the socialist system. Due to the U.S. embargo all that we brought back were CDs of Cuban music, but we still were pulled aside by U.S. Customs in Miami for an extra x-ray of our luggage. When I tried to check my Charles Schwab account via the internet from Havana, I received a message stating that access was denied because I was using a computer located in a “dangerous area” of the world. Upon returning to the U.S. I discovered that Schwab had frozen my account because of this (I subsequently was able to get it unfrozen with a phone call explaining the circumstances).
Cuba’s economy collapsed after the fall of the Soviet Union, a time now called the “special period” by the Cuban government. Cuba’s energy infrastructure now relies heavily on discounted oil from Venezuela traded in return for Cuban medical services. Cuba has greatly reduced power blackouts by decentralizing its electrical grid, reportedly in response to some of Amory Lovins’ work. Oliver Houck’s article “Environmental Law in Cuba,” 16 J. Land Use & Envt’l Law 1 (2000) is still the definitive work on environmental law in Cuba. Cuba has some wonderful protected areas, but it undoubtedly will face considerable environmental challenges as its development accelerates in response to greater economic openness. Once the country opens up and U.S. sanctions are lifted, the Cuba that I saw is likely to be radically transformed. The Cuban people express great warmth toward Americans, though not always toward the U.S. or Cuban governments. They seem particularly passionate about Cuban music, the beauty of their country, dogs, baseball, and ice cream. There were so many amazing things to photograph in Cuba that I took more photos than ever. I have edited and labeled the best and posted them online along with some brief video clips at: http://gallery.me.com/rperci#100882. A 16-minute video slideshow of the trip that I prepared is available online at: http://gallery.me.com/rperci#100897.
While I was in Cuba the Durban COP-17 conference went into overtime before concluding with a face-saving “agreement to agree” in the future on binding measures to control emissions of greenhouse gases. Opinion is divided about the significance of this agreement with the commentaries reflecting a kind of “glass half full/glass half empty” quality. To me it seems to represent a further confirmation of the diminishing importance of top-down approaches to international environmental law, in line with my theory about how global environmental law is now developing more from the bottom up. The most shameful performance at the Durban COP was that of the Canadian delegation, which during the conference denied persistent rumors that Canada planned to withdraw from the Kyoto Protocol only to confirm them shortly after the conference ended.
A further illustration of this trend is the European Union’s application of cap and trade regulations to control greenhouse gas emissions to all airlines who fly to and from the EU. On December 21 the European Court of Justice rejected legal challenges to the regulations that had been brought by foreign airlines. Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, Case C-366/10. The Court found that the regulations did not violate principles of customary international law including sovereignty of states over their airspace and freedom to fly over the high seas. The Court also found that the regulations were not precluded by the Chicago Convention on International Civil Aviation and that they did not violate the “Open Skies” Air Transport agreement between the United States and the European Union. The decision was not unexpected and U.S. airlines indicated that they would comply with it while still vowing to persuade the EU to rescind the rules, which will take effect on January 1, 2012. A press release in English from the Court describing the decision is available online at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110139en.pdf A copy of the Court’s judgment is available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=117193&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=162625. Now that the EU can require U.S. airlines to reduce their greenhouse gas emissions on their flights to and from Europe, an appropriate U.S. response would be for us to do the same for flights by EU airlines to and from the U.S. But that may be difficult to do in the absence of a U.S. cap-and-trade system.
While I was in Cuba the U.S. Congress resolved a budget battle by agreeing to appropriations legislation that included a provision to block for nine months (until Sept. 30, 2012) the expenditure of funds to enforce tighter energy efficiency standards that would start to phase out incandescent light bulbs in the U.S. The tighter energy efficiency standards had been adopted by Congress with overwhelming bipartisan support in the 2007 Energy Independence and Security Act. Now it has become an article of faith among some on the right that they represent a severe interference with individual freedom. Canada also has postponed for two years to January 1, 2014, a ban on importation of inefficient incandescent light bulbs, which actually waste the vast majority of their energy by generating heat rather than light. The move to postpone the energy efficiency standards likely will harm U.S. suppliers of more efficient light bulbs who took the regulations seriously while providing temporary windfalls to foreign companies.
Last week the U.S. Environmental Protection Agency (EPA) released long-awaited regulations to require U.S. power plants to reduce their emissions of mercury and other air toxics. EPA estimates that the new regulations will prevent as many as 11,000 premature deaths and 4,700 heart attacks annually while preventing 130,000 cases of childhood asthma symptoms and 6,300 cases of acute bronchitis among children each year. Predictably the regulations were denounced by the editors of the Wall Street Journal, Lisa Jackson’s Power Play, Wall St. J., Dec. 22, 2011, who previously had argued that the regulations could may the lights go out. “If the Lights Go Out,” Wall St. J., Dec. 6, 2011. Their argument was complicated by letters to the editor from the CEOs of two large electric utilities who claim that the utility industry is “well-positioned to comply with these rules” and that the “rules should not be controversial” because “[n]o one disputes that mercury is harmful to human health or that the technology is available now to reduce mercury emissions dramatically.” “Utilities Have Planned for Years for the ‘New’ EPA Rule, Wall St. J., Dec. 10-11, 2011, at A14 (letters to the editor from Jack Fusco, CEO and President of Calpine Corp. and Ralph Izzo, Chairman, CEO and President of PSEG). The Journal editors responded to these letters by denouncing the utility executives as having a vested interest in profiting from higher electricity prices.
Next week I will review the top ten global environmental law developments of the year. Merry Christmas.
Sunday, December 25, 2011
Friday, December 9, 2011
Cuba Trip, Durban COP, Beijing Air Pollution, U.S. Battery Recycling in Mexico, Laos Dam, Fracking Study & Call for Papers (by Bob Percival)
I am publishing this blog entry a little early this week because tomorrow morning I will be flying to Havana for a 10-day people-to-people visit arranged by the National Geographic Society. Because I am uncertain about the state of internet access in Cuba, I do not know if I will be able to post more blog entries until after I return to the U.S. on December 19.
Final negotiations are underway in Durban at the conference of the parties (COP-17) to the UN Framework Convention on Climate Change. On December 8 a courageous 21-year old college student from Middlebury College, Abigail Borah, interrupted a speech by Todd Stern, the chief U.S. climate negotiator, by saying: “I am speaking on behalf of the United States of America because my negotiators cannot. The obstructionist Congress has shackled justice and delayed action for far too long. I am scared for my future. 2020 is too long to wait. We need an urgent path to a fair, ambitious and legally binding treaty.” Ms. Borah’s interruption was greeted with applause even though she was ejected from the meeting hall. Stern later called a press conference where he described Ms. Borah as a “very sincere and passionate young woman.” He then suggested that the U.S. might indeed go along with an EU proposal to launch a process designed to reach a new climate agreement in 2015, which would become effective in 2020, rather than waiting until 2020 to negotiate such a treaty. The Global Carbon Project reported on December 4 that global emissions of carbon dioxide rose by a half billion tons in 2010, a 5.9% increase that likely was the largest jump in any year since the dawn of the Industrial Revolution.
This was a tough week for breathing in Beijing as a brown haze encircled the city and levels of particulates skyrocketed to extremely hazardous levels. The pollution was so bad that 700 outgoing flights were canceled over a two-day period and roads were shut down due to poor visibility. Environmental activists pushed the Chinese government to be more forthcoming in releasing air pollution data to the public. On December 6 the China Daily reported that air pollution is causing severe health problems, noting that lung cancer in Beijing has increased by 60% in the last decade even though the rate of smoking was unchanged. Edward Wong, Outrage Grows Over Air Pollution and China’s Response, N.Y. Times, Dec. 7, 2011, at A15.
On December 9 the New York Times published a shocking expose showing that major U.S. battery-manufacturing companies have shipped huge quantities of used batteries to recyclers in Mexico where the lead is recycled with virtually no environmental controls. Last year U.S.-based Johnson Controls shipped 160,000 metric tons of batteries to Mexican recyclers. The percentage of used batteries in the U.S. that are exported to Mexico has jumped from 6% in 2007 to 20% in 2010. The exports are harming domestic battery recyclers who must comply with much tougher environmental regulations. Mexican children living near the recycling operations are suspected of having lead poisoning, but virtually no funds are available to test them. Elisabeth Rosenthal, Used Batteries from U.S. Expose Mexicans to Risk, N.Y. Times, Dec. 9, 2011, at A1.
A plan to build the $3.5 billion Xayaburi dam on the Mekong River in Laos was deferred this week by a vote of the Mekong River Commission, whose members include Cambodia, Laos, Thailand, and Vietnam. This is the second time this year that the project has been deferred pending further study of its environmental impacts. James Hookway, Environmental Concerns Delay Mekong Dam Project, Wall St. J., Dec. 9, 2011, at A11.
After three years of study, the U.S. Environmental Protection Agency (EPA) released a draft report on December 8 that links hydraulic fracturing for natural gas in Wyoming’s Pavillion field to contamination of drinking water wells in the vicinity. Companies using fracking to extract natural gas have long insisted that there is no proof that it has contaminated drinking water supplies. EPA discovered levels of various chemicals associated with fracking well above standards set by the federal Safe Drinking Water Act (SDWA) in groundwater monitoring wells near fracking sites. The Kirk Johnson, EPA Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 9, 2011, at A19. However, due to an amendment to energy legislation promoted by Vice President Dick Cheney in 2005, fracking has been exempted from the SDWA. The EPA study, which now will be subject to public comment and peer review, was undertaken in response to complaints from local residents about the smell and taste of their drinking water. The wells drilled in the Pavillion field were shallower than those used in fracking operations in other parts of the country.
This week the IUCN Academy of Environmental Law released a “Call for Paper/Presentation Abstracts” for the 10th Colloquium that will be held at the University of Maryland Francis King Carey School of Law from July 1-5, 2012. The Colloquium organizers welcome abstracts for papers and/or presentations on a broad array of topics. These include: approaches for improving global environmental law and governance, how to overcome political resistance to sustainable development policies, new strategies for promoting environmental justice and using law to advance sustainability, where are we after Rio+20 and where we should be going from here. Papers may focus on strategies for addressing specific environmental problems, new developments in national and regional environmental law, and the interaction of international and domestic law and policy. A copy of the call for papers is available online at: http://digitalcommons.law.umaryland.edu/gelc/ A “Call for Films” for the same Colloquium, which will host a festival of short environmental films, will be issued soon.
Final negotiations are underway in Durban at the conference of the parties (COP-17) to the UN Framework Convention on Climate Change. On December 8 a courageous 21-year old college student from Middlebury College, Abigail Borah, interrupted a speech by Todd Stern, the chief U.S. climate negotiator, by saying: “I am speaking on behalf of the United States of America because my negotiators cannot. The obstructionist Congress has shackled justice and delayed action for far too long. I am scared for my future. 2020 is too long to wait. We need an urgent path to a fair, ambitious and legally binding treaty.” Ms. Borah’s interruption was greeted with applause even though she was ejected from the meeting hall. Stern later called a press conference where he described Ms. Borah as a “very sincere and passionate young woman.” He then suggested that the U.S. might indeed go along with an EU proposal to launch a process designed to reach a new climate agreement in 2015, which would become effective in 2020, rather than waiting until 2020 to negotiate such a treaty. The Global Carbon Project reported on December 4 that global emissions of carbon dioxide rose by a half billion tons in 2010, a 5.9% increase that likely was the largest jump in any year since the dawn of the Industrial Revolution.
This was a tough week for breathing in Beijing as a brown haze encircled the city and levels of particulates skyrocketed to extremely hazardous levels. The pollution was so bad that 700 outgoing flights were canceled over a two-day period and roads were shut down due to poor visibility. Environmental activists pushed the Chinese government to be more forthcoming in releasing air pollution data to the public. On December 6 the China Daily reported that air pollution is causing severe health problems, noting that lung cancer in Beijing has increased by 60% in the last decade even though the rate of smoking was unchanged. Edward Wong, Outrage Grows Over Air Pollution and China’s Response, N.Y. Times, Dec. 7, 2011, at A15.
On December 9 the New York Times published a shocking expose showing that major U.S. battery-manufacturing companies have shipped huge quantities of used batteries to recyclers in Mexico where the lead is recycled with virtually no environmental controls. Last year U.S.-based Johnson Controls shipped 160,000 metric tons of batteries to Mexican recyclers. The percentage of used batteries in the U.S. that are exported to Mexico has jumped from 6% in 2007 to 20% in 2010. The exports are harming domestic battery recyclers who must comply with much tougher environmental regulations. Mexican children living near the recycling operations are suspected of having lead poisoning, but virtually no funds are available to test them. Elisabeth Rosenthal, Used Batteries from U.S. Expose Mexicans to Risk, N.Y. Times, Dec. 9, 2011, at A1.
A plan to build the $3.5 billion Xayaburi dam on the Mekong River in Laos was deferred this week by a vote of the Mekong River Commission, whose members include Cambodia, Laos, Thailand, and Vietnam. This is the second time this year that the project has been deferred pending further study of its environmental impacts. James Hookway, Environmental Concerns Delay Mekong Dam Project, Wall St. J., Dec. 9, 2011, at A11.
After three years of study, the U.S. Environmental Protection Agency (EPA) released a draft report on December 8 that links hydraulic fracturing for natural gas in Wyoming’s Pavillion field to contamination of drinking water wells in the vicinity. Companies using fracking to extract natural gas have long insisted that there is no proof that it has contaminated drinking water supplies. EPA discovered levels of various chemicals associated with fracking well above standards set by the federal Safe Drinking Water Act (SDWA) in groundwater monitoring wells near fracking sites. The Kirk Johnson, EPA Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 9, 2011, at A19. However, due to an amendment to energy legislation promoted by Vice President Dick Cheney in 2005, fracking has been exempted from the SDWA. The EPA study, which now will be subject to public comment and peer review, was undertaken in response to complaints from local residents about the smell and taste of their drinking water. The wells drilled in the Pavillion field were shallower than those used in fracking operations in other parts of the country.
This week the IUCN Academy of Environmental Law released a “Call for Paper/Presentation Abstracts” for the 10th Colloquium that will be held at the University of Maryland Francis King Carey School of Law from July 1-5, 2012. The Colloquium organizers welcome abstracts for papers and/or presentations on a broad array of topics. These include: approaches for improving global environmental law and governance, how to overcome political resistance to sustainable development policies, new strategies for promoting environmental justice and using law to advance sustainability, where are we after Rio+20 and where we should be going from here. Papers may focus on strategies for addressing specific environmental problems, new developments in national and regional environmental law, and the interaction of international and domestic law and policy. A copy of the call for papers is available online at: http://digitalcommons.law.umaryland.edu/gelc/ A “Call for Films” for the same Colloquium, which will host a festival of short environmental films, will be issued soon.
Monday, December 5, 2011
Gloom in Durban, Bali Montreal Protocol COP, Fracking Contracts, Supreme Court RCRA Case, Lovins Workshop (by Bob Percival)
After a week of meetings in Durban, South Africa, the Conference of the Parties to the UN Framework Convention on Climate Change (COP-17) remains sharply divided on most major issues, including how to fund the Green Climate Fund to provide financial assistance to developing countries and whether a global post-Kyoto treaty should be adopted. Some critics have begun to refer to the COP as the “Conference of Polluters”. There were a few positive developments with the Chinese delegation for the first time indicating that it eventually might support global limits on greenhouse gas emissions in a treaty to be negotiated by 2020. The International Chamber for Shipping, representing 80% of the world’s merchant marine, joined Oxfam and WWF to support a carbon tax on emissions from ships. COP-17 is scheduled to conclude on Friday and, as usually happens, it is likely that the most significant developments will occur in the waning hours of the meetings.
In a belated bit of news, the Bali meeting of the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer on November 21-25 failed to adopt a proposal backed by the U.S. for a 30-year phaseout of hydrofluorocarbons that are potent greenhouse gases. India, China and Brazil led opposition to the proposal, which had been supported by a significant majority of the participating parties. It is now widely appreciated that the Montreal Protocol, while directed to protecting the ozone layer, also has reduced greenhouse gas emissions by even more than the reductions required by the Kyoto Protocol.
Last week the New York Times ran a major story reporting that many owners of properties that have been leased for hydraulic fracturing (“fracking”) to extract natural gas have misunderstood the contractual terms of the leases. Ian Urbina & Jo Craven McGinty, Learning Too Late of Perils in Gas Well Leases, N.Y. Times, Dec. 2, 2011, at A1. The companies generally do not describe the environmental risks to the property owners and most of the contracts do not require the companies to provide compensation for environmental damage. At least two-thirds of the leases allow the companies unilaterally to extend the lease term. This article could provide terrific material for law students to study in a first-year Contracts course.
The U.S.-based battery maker Johnson Controls reported last week that its Shanghai factory has been cleared to resume production after a temporary shutdown to investigate lead pollution near the plant. James T. Areddy, Battery Maker Is Cleared in Shanghai Lead Probe, Wall St. J., Dec. 1, 2011, at B4. As reported in this blog on September 18, 2011, the plant had been shut down by Chinese authorities after the discovery of severe lead poisoning in children living nearby.
On November 28 the U.S. Supreme Court announced that it had agreed to review a case challenging the amount of a fine imposed on a corporation for illegally storing hazardous mercury waste in violation of the Resource Conservation and Recovery Act (RCRA). The Court’s motivation for taking the case over the opposition of the federal government may be a desire to clarify the limits of its 2005 opinion in Apprendi v. United States holding that enhanced sentences could not be imposed based on certain factual findings not proven before a jury. In the case before the Court -- Southern Union Co. v. United States, No. 11-94 -- the company claims that it should have been fined only $50,000 for a single incident of illegally storing waste, rather than the $18 million penalty imposed based on daily penalties for more than 2 years of illegal storage.
I have spent the last few days in one of the most beautiful parts of the world at a wonderful workshop on “The Tao of Global and Personal Ecology” with Amory Lovins and Chungliang Huang. The workshop was held at California’s Esalen Institute, which is located atop cliffs overlooking the Pacific Ocean near Big Sur. Lovins discussed his Rocky Mountain Institute’s new book “Reinventing Fire: Bold Business Solutions for the New Energy Era” which outlines a program for greening the four energy-intensive sectors of the economy: transportation, buildings, industry and electricity. See http://rmi.org/ReinventingFire. I was impressed with Lovins’s relentless optimism (“I don’t do problems, I only do solutions”) and his emphasis that the transition to a green economy could be accomplished not by emphasizing government intervention, but rather by convincing business leaders that it would be profitable. Lovins has been advising business leaders and the U.S. military on how to transform their use of energy. He and Chungliang Huang have been doing work in China where Lovins’s book “Natural Capitalism” was embraced by the Chinese leadership in part because of the many positive ways the title’s Chinese translation resonated with them. By contrast, I have long been told that the title of Al Gore’s “An Inconvenient Truth” did not translate well into Chinese, making it far less popular there.
In a belated bit of news, the Bali meeting of the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer on November 21-25 failed to adopt a proposal backed by the U.S. for a 30-year phaseout of hydrofluorocarbons that are potent greenhouse gases. India, China and Brazil led opposition to the proposal, which had been supported by a significant majority of the participating parties. It is now widely appreciated that the Montreal Protocol, while directed to protecting the ozone layer, also has reduced greenhouse gas emissions by even more than the reductions required by the Kyoto Protocol.
Last week the New York Times ran a major story reporting that many owners of properties that have been leased for hydraulic fracturing (“fracking”) to extract natural gas have misunderstood the contractual terms of the leases. Ian Urbina & Jo Craven McGinty, Learning Too Late of Perils in Gas Well Leases, N.Y. Times, Dec. 2, 2011, at A1. The companies generally do not describe the environmental risks to the property owners and most of the contracts do not require the companies to provide compensation for environmental damage. At least two-thirds of the leases allow the companies unilaterally to extend the lease term. This article could provide terrific material for law students to study in a first-year Contracts course.
The U.S.-based battery maker Johnson Controls reported last week that its Shanghai factory has been cleared to resume production after a temporary shutdown to investigate lead pollution near the plant. James T. Areddy, Battery Maker Is Cleared in Shanghai Lead Probe, Wall St. J., Dec. 1, 2011, at B4. As reported in this blog on September 18, 2011, the plant had been shut down by Chinese authorities after the discovery of severe lead poisoning in children living nearby.
On November 28 the U.S. Supreme Court announced that it had agreed to review a case challenging the amount of a fine imposed on a corporation for illegally storing hazardous mercury waste in violation of the Resource Conservation and Recovery Act (RCRA). The Court’s motivation for taking the case over the opposition of the federal government may be a desire to clarify the limits of its 2005 opinion in Apprendi v. United States holding that enhanced sentences could not be imposed based on certain factual findings not proven before a jury. In the case before the Court -- Southern Union Co. v. United States, No. 11-94 -- the company claims that it should have been fined only $50,000 for a single incident of illegally storing waste, rather than the $18 million penalty imposed based on daily penalties for more than 2 years of illegal storage.
I have spent the last few days in one of the most beautiful parts of the world at a wonderful workshop on “The Tao of Global and Personal Ecology” with Amory Lovins and Chungliang Huang. The workshop was held at California’s Esalen Institute, which is located atop cliffs overlooking the Pacific Ocean near Big Sur. Lovins discussed his Rocky Mountain Institute’s new book “Reinventing Fire: Bold Business Solutions for the New Energy Era” which outlines a program for greening the four energy-intensive sectors of the economy: transportation, buildings, industry and electricity. See http://rmi.org/ReinventingFire. I was impressed with Lovins’s relentless optimism (“I don’t do problems, I only do solutions”) and his emphasis that the transition to a green economy could be accomplished not by emphasizing government intervention, but rather by convincing business leaders that it would be profitable. Lovins has been advising business leaders and the U.S. military on how to transform their use of energy. He and Chungliang Huang have been doing work in China where Lovins’s book “Natural Capitalism” was embraced by the Chinese leadership in part because of the many positive ways the title’s Chinese translation resonated with them. By contrast, I have long been told that the title of Al Gore’s “An Inconvenient Truth” did not translate well into Chinese, making it far less popular there.
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