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.