Chinese Power Shortages, Germany to Phase Out Nuclear Power, Brazilian Deforestation & Climate Debate (by Bob Percival)

Last week I noted that a severe drought in China had reduced hydropower production there and that some regions were experiencing power shortages. It now appears that another major factor contributing to Chinese power shortages is that some electric utilities deliberately have cut power production because coal prices have soared while the government has refused to allow them to increase the rates they charge for electricity. This is being portrayed as setting up a major showdown between the Chinese government and state-owned utilities. Keith Bradsher, Power v. Profit: Chinese Utilities Defy Beijing and Cut Output, N.Y. Times, May 25, 2011, at B1.

Responding to safety concerns raised by the Japanese nuclear accident, the German government announced yesterday that it will phase out the country’s existing nuclear powerplants by the year 2022. German Chancellor Angela Merkel previously had backed extending the lifespan of existing nuclear powerplants, despite a previous government’s commitment to phaseout nuclear power. In light of Germany’s continued commitment to reduce emissions of greenhouse gases (GHGs), the country will be under even greater pressure to increase its already impressive investment in renewable energy. The government of Switzerland, which generates 40 percent of its electricity from five nuclear powerplants, also has announced that it plans to phase out nuclear power, but it has not set a date yet for completing the phaseout.

Last week the lower house of the Brazilian Congress approved a bill that will relax laws restricting deforestation of the Amazon. The legislation reportedly will grant amnesty to those who have engaged in illegal logging in the past while reducing the amount of undeveloped forest that must be protected by farmers and ranchers. Although Brazilian President Dilma Rousseff generally has favored development interests over environmental concerns, officials in her administration have suggested that the legislation may go too far. John Lyons, Brazil Moves to Loosen Amazon-Logging Rules, Wall St. J., May 26, 2011.

On May 25 I was a guest speaker at a luncheon at the U.S. Capitol sponsored by the D.C. Chapter of the Federalist Society. The topic was the “Legal and Policy Implications of the Obama Administration’s Effort to Regulate Greenhouse Gases.” Debating me was former White House Counsel and former U.S. Ambassador to the European Union C. Boyden Gray. To his credit, Gray did not deny that climate change was a serious problem. Instead his basic claim was that until China and India agree to an international treaty to control emissions of GHGs it would be useless for the U.S. to do anything to control GHG emissions. I noted that because the developed world caused most of the climate change problem, it was only fair that developed countries take the first steps to control their GHG emissions, the basic premise of the Kyoto Protocol, which has been ratified by every developed country except for the U.S. Gray made the astonishing claim that the U.S. may not be the largest historic contributor to the problem in light of extensive reforestation that has occurred in the U.S., a claim I quickly debunked. While giving Gray credit for not denying the existence of a problem, I warned that Republican politicians who increasingly are joining the ranks of climate change deniers are making an “historic mistake. “ The problem is only getting more serious and politicians cannot simply wish it away.

On May 26 New Jersey Governor Chris Christie announced that he was withdrawing the state from the northeastern and mid-Atlantic states’ regional plan to control GHG emissions through a cap-and-trade program for powerplants fired by fossil fuels. While stressing that he was not joining the ranks of climate change deniers, Christie argued that the plan was ineffective. States remaining in the Regional Greenhouse Gas Initiative (RGGI) include Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont. New Jersey’s exit is not expected to jeopardize the program, which has raised more than $700 million through the sale of emissions allowances.

Return from China, Dams in China & Chile, Indonesian REDD Initiative & Kickstarter Project (by Bob Percival)

I spent my last evening in China having dinner with my dear friend Zhang Jingjing, the “Erin Brockovich of China,” who had wonderful news that she is about to be married to an American environmentalist who did pioneering work on levels of air pollution in Beijing. In the fall Jingjing plans to enroll in Harvard’s John F. Kennedy School of Government to pursue a masters degree. During our final day in China, my son used the basketball he received from Ningo University Professor Cai XIanfeng to shoot hoops with Chinese kids at the Dandong Sports complex in Beijing. A gallery of photos of our trip to China and a video of the basketball workout are online at: http://gallery.me.com/rperci#100835 and http://gallery.me.com/rperci#100838.

We returned home from China last Wednesday night. On Thursday I participated in festivities honoring the 30 students graduating from the University of Maryland School of Law with certificates of concentration in environmental law. This graduating class represented our largest class of environmental law students ever. More than one-fifth of Maryland law students now regularly take environmental law and more than one-tenth elect to specialize in it in order to qualify for the certification of concentration. Brooksley Born, the former chair of the Commodities Futures Trading Commission, was our graduation speaker on Friday.

During my time in China, for the first time I detected unusually high levels of concern among Chinese environmentalists about the government’s crackdown on NGOs who receive assistance from foreign sources, a product of the events in the Middle East. Ironically, some Chinese officials are displaying greater candor than ever about the country’s environmental problems. On May 19 CHina’s State Council released a statement approved by Premier Wen Jiaboa that acknowledged that the country’s $23 billion Three Gorges Dam has caused serious problems. In addition to pollution-fed algae blooms, islands of floating trash, and geological problems associated with the dam (see Josh Chin, Critics Hail Admission of Chinese Dam Flaws, Wall St. J., May 21-22, 2011, at A9), a severe drought has reduced power production from Chinese hydropower projects, threatening electrical shortages in some areas of China. Chinese environmentalists are hoping that the government’s new skepticism concerning large dam projects will bolster opposition to several projects planned for other rivers, including China’s Nu River. Chilean environmentalists are upset that their government has approved the construction of five dams on the Baker and Pascua Rivers in Patagonia that will require construction of a transmission line that would involve the largest clearcut of forests in the world. Keep Chilean Patagonia Wild, New York Times, May 22, 2011 (http://www.nytimes.com/2011/05/24/opinion/24tue3.html?_r=1).

On May 20 Indonesian President Susilo Bambang Yudhoyono issued a decree committing the government to a two-year moratorium on the issuance of permits to clear 159 million acres of virgin forest and peatland. The decree was designed to protect sinks for greenhouse gases as part of a $1 billion UN program for Reduced Emissions from Deforestation and Forest Degradation (REDD). Although touted by the government as a major advance in the fight against climate change, environmentalists were highly critical of the plan, arguing that it still allowed too much leeway for deforestation. Aubrey Belford, Environmentalists Criticize Indonesia’s Plan to Save Forests, N.Y. Times, May 20, 2011.

As tornado devastation in the U.S. adds to the toll of record-breaking natural disasters, Bill McKibben has published an op-ed noting that while it is impossible to tie any particular disaster to climate change, the overall pattern is entirely consistent with predictions by climate scientists. See Bill McKibben, See No Climate Change, Washington Post, May 24, 2011, at 21.

For anyone interested in an eco-friendly project to support environmental education efforts at the inner city school in Washington where my wife runs a garden-based curriculum, please visit:  http://www.kickstarter.com/e/h9HlP/projects/547484901/build-the-foodprints-kitchen-at-watkins-elementary-0. If you are not able to contribute, please at least consider forwarding this link to your social networks.

China Trip, Compensation for Japanese Nuclear Accident, Environmental Crime in China, Bhopal Appeal Denied (by Bob Percival)

For the last several weeks technical problems have prevented me from posting on my blog at www.globalenvironmentallaw.com, but regular weekly posts have been made on this blog. I started making parallel posts on these two blogs while teaching in China three years ago because sometimes one site or the other is blocked by the great Chinese firewall. When I was in China during the last week this blogspot site was blocked, while the other site was working. Having just arrived back in the U.S. I am posting to this site the post I made on the other site earlier in the week while in China.

I have had a wonderful time in China since arriving on May 10. On Wednesday night May 11 I had dinner in Beijing with Alan Miller, one of the co-authors of my environmental law casebook, who was in town to work on energy efficiency guidelines for the Chinese cement industry on behalf of the International Finance Corporation. On Thursday May 12 my son Richard and I went to the Summer Palace and the Great Wall. Due to high winds we were forced to go to the Badaling part of the Great Wall, but the winds cleared out most of the pollution and the day ended with blue skies and puffy white clouds - a rarity for Beijing. On Friday we flew to Jinan where I visited Shandong University School of Law. Jinan is a small town for China -- only about 2 million residents -- Shandong University has approximately 20,000 students. After lunch with several law professors, including Zhang Shijun, who was a visiting scholar at the University of Maryland School of Law during the 2009-2010 academic year, I presented a guest lecture on “Transnational Liability Litigation for Environmental Harm.”

On Friday night my son and I flew to Shanghai where we had dinner with Professor Zhao Huiyi from Shanghai Jiao Tong University Law School. Professor Zhao, whose specialties are environmental law and criminal law, has just completed two years on leave from the law school to supervise criminal prosecutions for the procurate in Shanghai. She is hoping to come to the U.S. as a visiting scholar during the 2011-2012 academic year. On Monday May 16, we traveled to Ningbo to visit Ningbo University. Professor Cai Xianfeng, who I had met while he was in the United States in 2010, hosted the visit. After lunch with several law professors I gave a lecture on “Climate Change and the Future of Global Energy Policy in the Wake of Global ‘Tsunamis’.” The tsunamis referred to in my lecture title included the Japanese tsunami and the nuclear accident it spawned, the volatility of global energy prices in the wake of unrest in the Middle East, and the Republican takeover of the U.S. House of Representatives in the November 2010 election. I discussed the effects of each of these three developments on efforts to control emissions of greenhouse gases in the U.S. and other countries. Photos from my trip to China are available online at: http://gallery.me.com/rperci#100835

The accident at the Fukushima Daiichi nuclear power plant in Japan has generated considerable concern in China because China has far more nuclear reactors planned and under construction than any other country and earthquakes are a major concern. On May 12 China marked the third anniversary of the devastating Wenchuan earthquake that killed nearly 70,000 people. Japanese authorities have unveiled a plan for compensating the victims of the Fukushima Daiichi accident. The plan would establish a fund to compensate the 80,000 people displaced due to the accident funded by contributions from plant owner Tokyo Electric Power Company and other utilities that operate nuclear powerplants in Japan. The Japanese government plans to issue special bonds to get the fund up and running.

Chinese authorities have approved the first criminal prosecution for an environmental crime since Amendment VIII was added to the Criminal Law on May 1. The prosecution involves two men caught dumping acid wastes into the Honghe River. Complaints in mid-February about dead fish floating in the river led to an investigation and police eventually caught Mr. Jiang and Mr. Dong pouring the acid into the river. Zhou Xiaqin, the prosecutor responsible for the case, noted that under the old law, a criminal prosecution could not be brought unless it was proven that the offense had caused serious harm to public or private property or injuries or deaths. Wu Yiyao, Two Men to Face Charges for Polluting, China Daily, May 13, 2011, at 5.

China’s National Audit Office (NAO) has discovered that 205 million yuan (US $31.5 million) in subsidies designed to facilitate emissions reductions by power plants and cement and steel manufacturers have been embezzled. Twenty people reportedly have been punished for their roles in the embezzlement schemes and fines totaling more than $1 million have been imposed. The embezzlements represent only a small portion of the nearly $20 billion in subsidies to support energy conservation and emissions reductions projects from 2007 to 2009. Subsidy Fraud Hits Emissions Battle, Shanghai Daily, May 14, 2011, at A7.

On May 11 the Supreme Court of India rejected an appeal challenging as too light the sentences imposed on seven employees of the Union Carbide plant in Bhopal, India, where a release of a toxic chemical killed thousands in December 1984.

Public Trust Climate Change Suits, Global Warming Reducing Crop Yields, Soil Erosion and Runoff Fears, China Airlines & EU ETS (by Bob Percival)

Last week an Oregon-based group called “Our Children’s Trust” filed lawsuits in federal court in California and many state courts alleging that the atmosphere is a public trust that the state and federal government have a fiduciary duty to protect on behalf of present and future generations. The lawsuits, which feature teenagers as plaintiffs, maintain that the governments have breached their duty to protect the public trust because they have failed to control emissions of greenhouse gases. The public trust doctrine was recognized by the U.S. Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), where it held that the state of Illinois held title to submerged lands within its borders in trust for the public. It has not been Citing an “atmospheric climate emergency,” the suits seek declaratory relief recognizing the public trust in the atmosphere and the duty of government officials to protect it from causing harm due to climate change. Links to copies of some of the complaints are available at: http://www.ourchildrenstrust.org/legal-action/lawsuits. There is considerable skepticism in the legal community concerning whether the lawsuits are likely to be successful as many courts have steered away from applying the public trust concept in environmental cases because of the difficulty of discerning objective standards to apply. Yet the underlying concept that courts should be available to intervene as a last resort if government officials are failing to prevent enormous harm to public resources has some appeal.

On May 5 the journal Science published a study finding that global corn and wheat production has declined by 3.8% and 5.5% respectively since 1980 due to global warming. An abstract of the study, “Climate Change and Global Crop Production Since 1980” by David Lobell and Wolfram Schlenker of Stanford University, and Justin Costa-Roberts of Columbia University, is available online at: http://www.sciencemag.org/content/early/2011/05/04/science.1204531. The study concluded that the effects of global warming on crop production vary from country to country. It has reduced wheat production in Russia by 10% and by a few percentage points each in China, France and India. Corn production has fallen by a few percentage points in Brazil, China and France. Surprisingly, overall crop productivity in the Midwestern U.S. have not yet been affected by climate change, the study found. Global rice and soybean productivity has not yet been significantly affected because losses in some parts of the world have been offset by gains in other areas. The study’s assessment of impacts is likely to be conservative because it excluded the effects of extreme weather events on crop yields. Justin Gillis, Global Warming Reduces Expected Yields of Harvests in Some Countries, Study Says, N.Y. Times, May 5, 2011.

A study by the Environmental Working Group entitled “Losing Ground” concludes that agricultural soil erosion and runoff in Iowa is occurring at nearly twice the rate of 5.2 tons per acre estimated by the U.S. Department of Agriculture. Using an aerial survey and data from Iowa State University researchers, the study concludes that recent storms have triggered alarming soil losses in some areas. A copy of the study is available online at: http://www.ewg.org/losingground/ The current flooding of the Mississippi River is exacerbating fears of Midwestern erosion and runoff. Jeffrey Ball, Floods Raise Runoff Concerns, Wall St. J., May 5, 2011, at A5.

Congress continues to debate the future of U.S. energy policy with the Republican-controlled House of Representatives trying to speed up domestic oil drilling, while the Senate considers a measure to eliminate tax breaks for large oil companies. Last week the Obama Administration established a seven-member panel led by MIT Professor and former CIA Director John Deutch to recommend ways of improving the safety of hydraulic fracturing as a means for extracting natural gas from shale formations. The U.S. Department of Energy’s announcement of the panel is available online at: http://www.energy.gov/news/10309.htm.

I arrived in Beijing this afternoon with my son, who was fascinated by crossing the International Date Line for the first time. He was intrigued to hear that Samoa has decided to switch to the western side of the dateline in order to make trade easier with New Zealand and Australia. American Samoa, which I visited in 1973 while sailing around the world, will stay east of the dateline, creating “exciting tourism opportunities” according to Samoa’s prime minister because with less than an hour’s flight “you can have two birthdays, two weddings and two wedding anniversaries on the same date.” Samoans to Jump Ahead One Day in Zone Shift, China Daily, May 10, 2011, at 10.

The China Air Transport Association (CATA) has threatened retaliation against the EU for insisting that all flights departing or landing at EU airports participate in the EU’s Emissions Trading System (ETS) beginning next January 1. Thirty-three airlines from the Chinese mainland, Hong Kong and Macao are covered by the EU rules, which also are being challenged by the U.S. Air Transport Association. The CATA estimates that Chinese airlines would have to pay nearly $2.7 billion over the next nine years to purchases emissions allowances from the ETS. Xin Dingding, Airlines Battling Costly EU Plan, China Daily, May 10, 2011 at 4.

Black Boxes & bin Laden, Faster Arctic Melting, Nuclear Adviser Quits, Post-Rapanos Guidance, Challenge to Calif. Waiver Rejected (by Bob Percival)

Just hours before the momentous announcement on Sunday May 1 that Osama bin Laden had been killed by U.S. Special Forces, it was learned that submarines scouring the depths of the Atlantic Ocean finally had located a flight recorder from Air France Flight #447 that crashed on June 1, 2009 on a flight from Rio to Paris. Both events demonstrated that with enough persistence and effort, humans now can locate virtually anything or anyone even in a remote part of the planet (or in bin Laden’s case in the shadow of Pakistan’s West Point). After midnight my children headed downtown to participate in the spontaneous celebration outside the White House. They reported that it was almost entirely young people who were eager to dismiss uninformed claims that their generation had been too young to understand 9/11.

Tomorrow the Arctic Monitoring and Assessment Program (AMAP) will report that Arctic glaciers and ice caps have been melting so fast during the last six years that they may contribute 2 to 3 feet more to sea level rise by 2100 than predicted by the Intergovernmental Panel on Climate Change (IPCC). Despite great uncertainty surrounding the estimates, their projection that sea level will rise between 35 to 63 inches by 2100 dwarfs the IPCC’s 207 project of sea level rise between 7 and 23 inches. AMAP found that average annual temperatures over the Arctic have increased by twice as much as in the rest of the world.

The fallout from the Japanese earthquake and tsunami and the resulting Fukushima Daiichi nuclear accident continues. Last week University of Tokyo Professor Toshiso Kosako, a special adviser to the Japanese government on nuclear safety issues, abruptly resigned to protest the government’s handling of the crisis. Professor Kosako argued that it still was difficult to tell who was in charge of dealing with the crisis. He maintained that Japanese government agencies “have ignored the laws and have only dealt with the problem at the moment.” William Sposato, Nuclear Adviser Quits Over Handling of Crisis, Wall Street Journal, April 30, 2011. Sergei V. Kiriyenko, director of Rosatom, the Russian state nuclear company, last week proposed the creation of an international framework for regulating nuclear power and notifying other countries of serious accidents that may cause transboundary releases of radiation. Russia plans to present the proposal at a meeting of the Group of 8 in France later this year. Andrew E. Kramer, Russia Is Set to Propose Strict Rules for Reactors, N.Y. Times, April 29, 2011, at B6.

Last week the U.S. Environmental Protection Agency released guidance explaining how it intends to interpret its federal jurisdiction over “waters of the United States” in light of the U.S. Supreme Court’s confusing 4-1-4 split in Rapanos v. United States. Rapanos, which was decided in June 2006, has caused enormous confusion because four Justices accepted the Army Corps of Engineers’s long-standing practices for defining “waters of the U.S.,” four Justices adopted a dramatically narrower construction of the term, and Justice Kennedy enunciated a new “substantial nexus” test that none of the other Justices accepted. Because it is a guidance document, rather than a rule, it is unlikely that it can be challenged directly in court, though its application can be challenged when disputes arise in the future over the scope of federal jurisdiction over wetlands. The document, on which EPA is soliciting public comment, is available online at: http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf

On Friday April 29, the U.S, Court of Appeals for the District of Columbia rejected a legal challenge to EPA’s granting of a waiver to the state of California to adopt controls on greenhouse gas emissions from motor vehicles. The court ruled that the National Automobile Dealers Association and the U.S. Chamber of Commerce lacked standing to challenge the waiver because it did not affect them directly. The California standards will require more fuel efficient vehicles, but national automobile manufacturers did not challenge it.

This morning I spoke on a panel on "The Role of Judicial Settlements in Driving Rulemaking" at a conference in Washington D.C. sponsored by the ABA's Section on Administrative Law and Regulatory Practice. John Cruden, Deputy Assistant Attorney General for the Environment and Natural Resources Division of the U.S. Department of Justice, explained the department's long-standing settlement policies. James Nutt from the South Florida Water Management District described legal challenges before the 11th Circuit to a settlement agreement that governs the cleanup of the Everglades. Drawing on a 24-year old article I wrote for the University of Chicago Legal Forum, I focused on the historical background of disputes over the use of consent decrees that originated during the Reagan administration in March 1986 when Attorney General Edwin Meese issued the "Meese Memorandum."

Next Monday I am flying to Beijing to give guest lectures at Shandong University and Ningbo University. It will be my first trip to China since last June, the longest I have gone without visiting that country in more than six years.