As calendar year 2012 comes to a close today, it is time for the annual review of the most significant developments in global environmental law during the past year. What is remarkable about these developments is that they largely represent a continuation of trends identified as among the most significant developments a year ago (see my Jan. 1, 2012 blog post). The following is a list of the top ten developments in global environmental law in 2012, in no particular order of significance.
1. Little progress is made in global climate negotiations at COP18 in Doha, even as the impact of global warming and climate change becomes more evident with record temperatures and Superstorm Sandy’s flooding of New York.
2. Under pressure from foreign governments, the European Union agrees to postpone for one year collection of greenhouse gas (GHG) emissions charges from foreign airlines in order to give the International Civil Aviation Organization time to negotiate a global agreement on control of aviation emissions.
3. The U.S. EPA’s endangerment finding and initial regulation of GHG emissions under the Clean Air Act is unanimously upheld by the D.C. Circuit while California continues to implement its state ca--and-trade program and holds a successful first auction of emissions allowances.
4. The rapid expansion of hydraulic fracturing, particularly in the U.S., dramatically increases the supply of natural gas and oil, speeding a shift away from coal even as the future development of nuclear power remains stalled, except in China, due to the March 2010 Fukushima Daiichi disaster in Japan.
5. President Obama wins re-election by a significant margin as U.S. voters reject a candidate who sought to blame environmental regulation for economic problems.
6. Transnational environmental litigation remained in the spotlight. Ecuadoran plaintiffs sought to enforce an $18 billion judgment against Chevron in courts in Canada, Brazil, and Argentina. The U.S. Supreme Court heard and reheard the Kiobel case involving whether the survivors of executed environmental activists in Nigeria can use the Alien Tort Statute to sue Shell in U.S. courts. The International Tribunal of the Law of the Sea directed Ghana to release an Argentine naval frigate that a hedge fund sought to attach to satisfy claims over defaulted Argentine government debt.
7. Efforts by non-governmental organizations to persuade multinational electronics companies to clean up their supply chains bore fruit as Apple agreed to independent audits of its Chinese supply chain. Foxconn, Apple’s largest supplier, raised workers’ wage, reduced excessive overtime, and took steps to improve working conditions while cooperating with Apple to move some of its production to the U.S.
8. BP agreed to a $7 billion settlement of private civil litigation over the Deepwater Horizon oil spill and a $4.5 billion criminal settlement with the U.S. government. Negotiations continue over a potential settlement of federal civil claims against BP.
9. While China continues to upgrade its environmental standards, Chinese courts refused to act on private lawsuits on behalf of fisherman harmed by the ConocoPhillips Bohai Bay oil spill.
10. Implementation of the EU’s REACH Program continues to influence chemical regulation around the world making more toxicity data available and creating an impetus to phase out risky chemicals and to replace them with safer substitutes.
Last week there were other significant developments in global environmental law. On December 27 Lisa Jackson, Administrator of the U.S. Environmental Protection Agency, announced that she was leaving the agency. Jackson, whose appointment initially surprised much of the environmental community, was an aggressive and effective advocate for environmental protection in an administration fearful of upsetting business interests. The low point in her tenure at EPA occurred in September 2011 when President Obama and his Office of Management and Budget forced her to withdraw rules that would have strengthened national limits on emissions that contribute to ground-level ozone formation. The most important accomplishment during her term was the agency’s “endangerment finding” for GHG emissions and her successful promulgation and defense of regulations to control them under the Clean Air Act.
Last week the Chilean Congress amended the country’s Fisheries Law to make Chile the first country to ban bottom trawling in the vicinity of all of its118 seamounts and other vulnerable marine waters. The legislation protects 150,000 square kilometers of the country’s waters. The Chilean Congress also changed the way the country sets catch limits for its fisheries. Instead of relying on the commercial fishing industry to set its own catch limits, catch limits will be set by regulators based on the best scientific recommendations. Environmentalists hailed the legislation as a major advance.
When severe smog hit New Delhi last month, it demonstrated that recent rapid growth in the city’s vehicle fleet has offset the effect of dramatic steps to reduce local air pollution that were mandated a decade ago by the Supreme Court of India. There are now seven million automobiles in the New Delhi area, a 65 percent increase since 2003. More than 1,400 new cars hit the roads in India’s capital city each day. The Supreme Court of India has recommended that a 25 percent “environmental compensation charge” be imposed on the sale of new diesel vehicles and that smaller charges be levied on existing cars. Niharika Mandhana, “Untamed Motorization” Wraps an Indian City in Smog, N.Y. Times, Dec. 27, 2012, at A8.
Monday, December 31, 2012
Monday, December 24, 2012
ITLOS Ruling Leads Ghana to Release Argentine Ship, Chevron Explores Fracking in South Africa, Asian Auto Congestion, Perdue Wins Chesapeake Poultry Suit (by Bob Percival)
The government of Ghana has released the ARA Libertad, a frigate owned by the government of Argentina, following a ruling from the International Tribunal for the Law of the Sea (ITLOS). The ship had been stopped from leaving port in Tema, Ghana, in response to a ruling by a local court. The ruling was obtained by NML Investments, a New York hedge fund seeking to collect on a $284 million New York judgment it won in 2006 over debt that the Argentine government defaulted on in 2001. In response to the Nigerian court’s ruling, the government of Argentina had instituted dispute settlement proceedings under Annex VIII of the Law of the Sea (LOS) Convention in late October. It then sought an order requiring Ghana to release the ship as a provisional measure under Article 290 of the Convention. ITLOS ruled that the Libertad, a three-masted tall ship used to train cadets, is an Argentine warship protected from seizure even when in Ghana’s internal waters under Article 32 of the Convention. Thus, it directed the government of Ghana to allow the ship to refuel and leave port, which it did on December 19.
The editorial board of the Wall Street Journal, which has argued against the U.S. ratifying LOS, despite strong support for ratification from the U.S. military and the U.S. business and environmental communities, cites this as “a case in which a small African nation admirably tried to adhere to the rule of law” only to be “bullied by a global tribunal.” Lawless at Sea, Wall St. J., December 24, 2012, at A12. The Journal concludes that the “next time the Senate moves to ratify the Law of the Sea Treaty, Ghana should be exhibit A for opponents.” However, one would think that this episode instead reinforces why the U.S. military strongly supports ratification of LOS so that a foreign government could not seize U.S. warships in the wake of some U.S. “debt limit’-created default. If anything, ITLOS helped vindicate Argentina’s national sovereignty while extricating Nigeria from a messy dispute not of its own making. An additional complication, as University of Washington Prof. Craig Allen explained in a blog post on opiniojuris.org (Dec. 15), is that before turning to ITLOS for help, Argentina shrewdly amended its previous reservation to application of the compulsory dispute resolution provisions of LOS to its military, a reservation the U.S. Senate Foreign Relations Committee has long supported for the U.S.
Chevron Corporation announced a five-year partnership with Falcon Oil & Gas Ltd. to conduct seismic studies of the potential for extracting natural gas from shale formations in South Africa. Falcon is one of only three companies who have received approval to conduct such studies in South Africa. Three months ago South Africa lifted a temporary ban imposed early in 2011 on shale gas exploration. The U.S. Energy Information Administration estimates that the Karoo region of South Africa contains 485 trillion cubic feet of natural gas. South African environmental groups argue that fracking to extract the gas could cause major environmental damage in this environmentally-sensitive region. Devon Maylie & Alexis Flynn, Chevron Enters Shale Hunt in South Africa, Wall St. J., Dec. 17, 2012, at B7.
Last week the Colorado Oil & Gas Association sued the city of Longmont in an effort to overturn a ban on hydraulic fracturing that voters in the city approved by a substantial margin last month. Jack Healy, City in Colorado Is Sued Over Drilling Ban, N.Y. Times, Dec. 19, 2012, at A19. The surge in U.S. natural gas production spurred by hyraulic fracturing (“fracking”) has accelerated the shift away from coal in U.S. electricity generation. On Dec. 19 American Electric Power announced that it will shut down coal-fired production from its half century-old Big Sandy electric power plant in Louisa, Kentucky. The Sierra Club estimates that Big Sandy is the 55th coal-fired power plant to be retired this year, leaving only 395 such plants compared with 522 operating in the U.S. in 2010.
As the number of automobiles in use in Asian cities continues to soar, traffic congestion has become a major problem. To respond to this problem, Jakarta, Indonesia’s Transjakarta Busway has created dedicated buslanes that have soared in popularity. The number of high-speed bus passengers in Jakarta has soared from 15.94 million in 2004 to 114.78 million in 2011. It is estimated that this has reduced CO2 emissions by 30,000 tons per year and saved the government from paying subsidies on 13.4 million gallons of fuel. The average travel speed on Jakarta highways is 13.7 miles per hour (mph), compared with 14.9 mph in New Delhi, 15.5 mph in Rio de Janeiro, 16.2 mph in Mexico City, 23.0 mph in Dubai, Frankfurt and San Francisco, 23.6 mph in Los Angeles, and 24.2 mph in Johannesburg. Eric Bellman, Across Asia Bus Lanes Become the Way to Go, Wall St. J., Dec. 22-23, 2012, at A12.
On Thursday December 20 federal district judge William M. Nickerson ruled for the defendants in an important Clean Water Act citizen suit brought by the Waterkeeper Alliance against poultry producer Perdue Farms, Inc. (see December 2, 2012 blogpost). The judge ruled that the Waterkeeper, represented by Maryland’s Environmental Law Clinic, had failed to prove by a preponderance of evidence that the source of high levels of bacteria and nutrients flowing through a point source into a tributary of the Pocomoke River was poultry waste. The judge accepted the defendants’ argument that it was more likely that the pollutants were from manure generated by unconfined cattle and not from a poultry CAFO (confined animal feeding operation) covered by the Clean Water Act. In his opinion Judge Dickerson acknowledged the importance of protecting the Chesapeake Bay from pollution and he rejected the defendants’ arguments that the Waterkeeper Alliance lacked standing to bring the lawsuit. The Waterkeeper’s lawsuit and the trial that it spawned exposed some important flaws in existing programs to prevent pollution of the Bay.
Merry Christmas to all!
The editorial board of the Wall Street Journal, which has argued against the U.S. ratifying LOS, despite strong support for ratification from the U.S. military and the U.S. business and environmental communities, cites this as “a case in which a small African nation admirably tried to adhere to the rule of law” only to be “bullied by a global tribunal.” Lawless at Sea, Wall St. J., December 24, 2012, at A12. The Journal concludes that the “next time the Senate moves to ratify the Law of the Sea Treaty, Ghana should be exhibit A for opponents.” However, one would think that this episode instead reinforces why the U.S. military strongly supports ratification of LOS so that a foreign government could not seize U.S. warships in the wake of some U.S. “debt limit’-created default. If anything, ITLOS helped vindicate Argentina’s national sovereignty while extricating Nigeria from a messy dispute not of its own making. An additional complication, as University of Washington Prof. Craig Allen explained in a blog post on opiniojuris.org (Dec. 15), is that before turning to ITLOS for help, Argentina shrewdly amended its previous reservation to application of the compulsory dispute resolution provisions of LOS to its military, a reservation the U.S. Senate Foreign Relations Committee has long supported for the U.S.
Chevron Corporation announced a five-year partnership with Falcon Oil & Gas Ltd. to conduct seismic studies of the potential for extracting natural gas from shale formations in South Africa. Falcon is one of only three companies who have received approval to conduct such studies in South Africa. Three months ago South Africa lifted a temporary ban imposed early in 2011 on shale gas exploration. The U.S. Energy Information Administration estimates that the Karoo region of South Africa contains 485 trillion cubic feet of natural gas. South African environmental groups argue that fracking to extract the gas could cause major environmental damage in this environmentally-sensitive region. Devon Maylie & Alexis Flynn, Chevron Enters Shale Hunt in South Africa, Wall St. J., Dec. 17, 2012, at B7.
Last week the Colorado Oil & Gas Association sued the city of Longmont in an effort to overturn a ban on hydraulic fracturing that voters in the city approved by a substantial margin last month. Jack Healy, City in Colorado Is Sued Over Drilling Ban, N.Y. Times, Dec. 19, 2012, at A19. The surge in U.S. natural gas production spurred by hyraulic fracturing (“fracking”) has accelerated the shift away from coal in U.S. electricity generation. On Dec. 19 American Electric Power announced that it will shut down coal-fired production from its half century-old Big Sandy electric power plant in Louisa, Kentucky. The Sierra Club estimates that Big Sandy is the 55th coal-fired power plant to be retired this year, leaving only 395 such plants compared with 522 operating in the U.S. in 2010.
As the number of automobiles in use in Asian cities continues to soar, traffic congestion has become a major problem. To respond to this problem, Jakarta, Indonesia’s Transjakarta Busway has created dedicated buslanes that have soared in popularity. The number of high-speed bus passengers in Jakarta has soared from 15.94 million in 2004 to 114.78 million in 2011. It is estimated that this has reduced CO2 emissions by 30,000 tons per year and saved the government from paying subsidies on 13.4 million gallons of fuel. The average travel speed on Jakarta highways is 13.7 miles per hour (mph), compared with 14.9 mph in New Delhi, 15.5 mph in Rio de Janeiro, 16.2 mph in Mexico City, 23.0 mph in Dubai, Frankfurt and San Francisco, 23.6 mph in Los Angeles, and 24.2 mph in Johannesburg. Eric Bellman, Across Asia Bus Lanes Become the Way to Go, Wall St. J., Dec. 22-23, 2012, at A12.
On Thursday December 20 federal district judge William M. Nickerson ruled for the defendants in an important Clean Water Act citizen suit brought by the Waterkeeper Alliance against poultry producer Perdue Farms, Inc. (see December 2, 2012 blogpost). The judge ruled that the Waterkeeper, represented by Maryland’s Environmental Law Clinic, had failed to prove by a preponderance of evidence that the source of high levels of bacteria and nutrients flowing through a point source into a tributary of the Pocomoke River was poultry waste. The judge accepted the defendants’ argument that it was more likely that the pollutants were from manure generated by unconfined cattle and not from a poultry CAFO (confined animal feeding operation) covered by the Clean Water Act. In his opinion Judge Dickerson acknowledged the importance of protecting the Chesapeake Bay from pollution and he rejected the defendants’ arguments that the Waterkeeper Alliance lacked standing to bring the lawsuit. The Waterkeeper’s lawsuit and the trial that it spawned exposed some important flaws in existing programs to prevent pollution of the Bay.
Merry Christmas to all!
Monday, December 17, 2012
Visit to Federal Maritime Commission, Atlantic Menhaden Limits, EPA Strengthens PM2.5 Regulations (by Bob Percival)
On Wednesday December 12, Professor Zhao Huiyu, Maryland’s visiting environmental law scholar from Shanghai Jiaotong Law School, and I visited the Federal Maritime Commission (FMC) in Washington, D.C. The FMC is an independent agency responsible for regulating maritime shipping to and from the United States. We observed a meeting of the five-member Commission, which is chaired by Richard Lidinsky, Jr. The Commission voted on a number of matters, including extending an existing exemption on filings of negotiated rate agreements by non-vessel-operating common carriers to foreign carriers, and its staff provided a briefing on the use of alternative dispute resolution in enforcement proceedings. Professor Zhao was quite impressed by the openness of the process, noting that in China one would never see government officials openly airing policy disagreements in public. Following the commission meeting Professor Zhao and I met with Chairman Lidinsky in his offices and we then joined him and his staff for lunch.
The vast majority of imports into the U.S. arrive by ship and China is the leading country of origin of such shipments. As a result, FMC officials regularly consult with their Chinese counterparts and they rotate holding annual meetings in one country or the other. The shipping industry has become much more environmentally conscious in recent years, something that Chairman Lidinsky has sought to encourage by giving the Chairman’s Earth Day Award annually to recognize outstanding leadership and innovation in sustainable ocean transport practices. Nike won the award this year for reducing the carbon footprint of its shipping. Previous award winners have included the Maersk Line for environmental leadership in vessel operation, vessel design, and efforts to increase carbon emissions transparency and the Port of Los Angeles for air quality improvements from its Clean Truck program.
On Friday December 14 the Atlantic States Marine Fisheries Commission voted to impose a historic limit on the catch of menhaden. These small fish, which are a critical part of the food chain in the Chesapeake Bay region, have declined to less than one-fifth of the population that existed during the 1960s. An excellent film about the menhaden, which was made by my Environmental Law students last year, can be seen online at: http://digitalcommons.law.umaryland.edu/envirofilms/42. At a raucous public meeting in Baltimore, the Commission voted 13-3 to limit next year’s menhaden catch to 170,800 metric tons, a 20 percent reduction below average levels during the past three years. While this reduction was less than what had been recommended by environmental groups, Virginia officials protested that it would devastate the state’s fishing industry, which is responsible for 80 percent of the menhaden catch. Much of the Virginia catch is for Omega Protein, a corporation that processes the fish for fish oil and fishmeal.
In order to meet a court-ordered deadline, the U.S. Environmental Protection Agency (EPA) announced on Friday December 14 that it had strengthened its national ambient air quality standard (NAAQS) for fine particulates (PM 2.5) including soot. EPA set an annual standard of 12 micrograms per cubic meter of air. The agency estimates that by 2030 the new standard will prevent up to 40,000 premature deaths, 32,000 hospital admissions, and 4.7 million work days lost due to illness. EPA estimates that the new standard will produce net benefits ranging from $3.6 billion to $9 billion per year. While some industry groups criticized EPA for strengthening the standard, EPA noted that less than ten of the 30,000 counties in the U.S. will have to undertake new local regulations to meet the standard. A video of EPA Administrator Lisa Jackson describing the new standards is online at: http://www.youtube.com/watch?v=CEUrnDB2rF0&feature=youtu.be
While my students were taking their Administrative Law and Environmental Law exams last week, my wife and I made our annual pre-Christmas pilgrimage to Manhattan. On Monday December 10 we went to Greenwich Village to see the opening run of “Happy New Year,” a powerful film about the plight of veterans returning from Iraq and Afghanistan, for which my nephew is one of the executive producers. Prior to arriving at The Quad where the film was showing, we stumbled upon the MLB Fan Cave where Cobie Caillat was giving a free concert. On December 11 we had lunch at Le Bernardin to celebrate the second anniversary of my wife’s cancer being in total remission and that evening we attended the performance of “The Messiah” by the St. Thomas Men and Boys Choir and Concert Royal. On December 12 I took the 6AM Acela back to D.C. and met Professor Zhao at Union Station just in time for our visit to the Federal Maritime Commission, whose offices are just a few blocks away.
The vast majority of imports into the U.S. arrive by ship and China is the leading country of origin of such shipments. As a result, FMC officials regularly consult with their Chinese counterparts and they rotate holding annual meetings in one country or the other. The shipping industry has become much more environmentally conscious in recent years, something that Chairman Lidinsky has sought to encourage by giving the Chairman’s Earth Day Award annually to recognize outstanding leadership and innovation in sustainable ocean transport practices. Nike won the award this year for reducing the carbon footprint of its shipping. Previous award winners have included the Maersk Line for environmental leadership in vessel operation, vessel design, and efforts to increase carbon emissions transparency and the Port of Los Angeles for air quality improvements from its Clean Truck program.
On Friday December 14 the Atlantic States Marine Fisheries Commission voted to impose a historic limit on the catch of menhaden. These small fish, which are a critical part of the food chain in the Chesapeake Bay region, have declined to less than one-fifth of the population that existed during the 1960s. An excellent film about the menhaden, which was made by my Environmental Law students last year, can be seen online at: http://digitalcommons.law.umaryland.edu/envirofilms/42. At a raucous public meeting in Baltimore, the Commission voted 13-3 to limit next year’s menhaden catch to 170,800 metric tons, a 20 percent reduction below average levels during the past three years. While this reduction was less than what had been recommended by environmental groups, Virginia officials protested that it would devastate the state’s fishing industry, which is responsible for 80 percent of the menhaden catch. Much of the Virginia catch is for Omega Protein, a corporation that processes the fish for fish oil and fishmeal.
In order to meet a court-ordered deadline, the U.S. Environmental Protection Agency (EPA) announced on Friday December 14 that it had strengthened its national ambient air quality standard (NAAQS) for fine particulates (PM 2.5) including soot. EPA set an annual standard of 12 micrograms per cubic meter of air. The agency estimates that by 2030 the new standard will prevent up to 40,000 premature deaths, 32,000 hospital admissions, and 4.7 million work days lost due to illness. EPA estimates that the new standard will produce net benefits ranging from $3.6 billion to $9 billion per year. While some industry groups criticized EPA for strengthening the standard, EPA noted that less than ten of the 30,000 counties in the U.S. will have to undertake new local regulations to meet the standard. A video of EPA Administrator Lisa Jackson describing the new standards is online at: http://www.youtube.com/watch?v=CEUrnDB2rF0&feature=youtu.be
While my students were taking their Administrative Law and Environmental Law exams last week, my wife and I made our annual pre-Christmas pilgrimage to Manhattan. On Monday December 10 we went to Greenwich Village to see the opening run of “Happy New Year,” a powerful film about the plight of veterans returning from Iraq and Afghanistan, for which my nephew is one of the executive producers. Prior to arriving at The Quad where the film was showing, we stumbled upon the MLB Fan Cave where Cobie Caillat was giving a free concert. On December 11 we had lunch at Le Bernardin to celebrate the second anniversary of my wife’s cancer being in total remission and that evening we attended the performance of “The Messiah” by the St. Thomas Men and Boys Choir and Concert Royal. On December 12 I took the 6AM Acela back to D.C. and met Professor Zhao at Union Station just in time for our visit to the Federal Maritime Commission, whose offices are just a few blocks away.
Monday, December 10, 2012
COP18 Concludes, China Air Pollution Plan, Stormwater in the U.S. Supreme Court, Tesla S (By Bob Percival)
The 18th Conference of the Parties to the UN Framework Convention on Climate Change (COP18) held in Doha, Qatar concluded at the end of last week after a marathon 36-hour final session that ran long past its scheduled conclusion. A total of 37 countries, primarily from the European Union, agreed to extend their Kyoto Protocol commitments to control emissions of greenhouse gases (GHGs) through the year 2020. The existing Kyoto commitment period expires at the end of 2012. New Zealand, Canada, Russia and Japan decided to opt out of extending their Kyoto commitments. Thus, after 2012 the Protocol will only cover countries that are responsible for less than 15 percent of global emissions of GHGs. Australia, which initially had joined the U.S. in rejecting the Kyoto Protocol, but which subsequently ratified it, also agreed to the extension to 2020, citing a desire to participate in the EU carbon trading market.
A particularly contentious set of issues at Doha were negotiations over the fund to help developing countries deal with climate change. Citing current economic problems, the U.S. and the EU refused to set precise figures for contributions to the fund during the period from 2013-2020. At Copenhagen in 2009 developed countries had promised to establish a green fund and to fund it at $100 billion/year by 2020. Some observers viewed the shift in the tone of the discussion from using the fund to assist developing countries with mitigation and adaptation toward using it to compensate them for “loss and damage” caused by the developed world as setting the stage for more conflict in future climate talks. The Durban Platform for completing by 2015 a new agreement to control global GHG emissions by the year still is in place, but there is considerable skepticism as to whether this goal will be achieved. At COP18 Xia Zhenhua, head of the Chinese delegation, stated that China would be willing to discuss adopting binding GHG emissions limits that would be effective after 2020.
On December 5 China’s Ministry of Environmental Protection released a plan pledging to reduce air pollutants in 13 major areas covering 117 cities in China. The plan seeks to reduce PM2.5 intensity by 5 percent by 2015 and to reduce the intensity of PM10 and sulfur dioxide by 10 percent by 2015. It also pledges a 7 percent reduction in the intensity of nitrogen dioxide emissions. The plan includes a requirement that new sources of air pollution offset their pollution by obtaining larger reductions in the same kind of pollution from existing sources. Earlier this year China’s State Council enacted new air quality standards that include for the first time the smallest particulates (PM2.5) and ozone. These are to be met throughout the nation by January 1, 2016. It is estimated that 70 percent of China’s cities currently do not meet the revised standards.
Last week the U.S. Supreme Court heard oral argument in two cases involving the Clean Water Act. In both cases the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of environmental interests. On Monday December 3 the Court heard argument in Decker v. Northwestern Environmental Defense Center, a case involving the question whether timber companies need Clean Water Act permits to control stormwater runoff from logging operations that flows through ditches and culverts along logging roads. Three days before the argument the U.S. Environmental Protection Agency (EPA) promulgated new regulations that purported to reverse the Ninth Circuit’s decision by clarifying that these were not the type of silvicultural operations that required a stormwater permit. Chief Justice Roberts expressed irritation that the Court had not been given more notice about the impending regulations, though the Solicitor General initially had advised the Court not to take the case because EPA would resolve the issue through regulations.
Professor Jeffrey Fisher, co-director of Stanford’s Supreme Court Litigation Clinic, argued that the Court should dismiss the cert petition as improvidently granted in light of the fact that the environmental groups would be challenging the new regulations as inconsistent with the Clean Water Act. Tim Bishop, arguing for the timber industry said the Court should prevent years of further litigation by reversing the Ninth Circuit and agreeing with EPA that permits are not needed. Following the argument students from my Environmental Law and Administrative Law classes came over to my house on Capital Hill for lunch and a post-mortem on the argument.
On Tuesday December 4 the Court heard Los Angeles County Flood Control District v. Natural Resources Defense Council. In this case the argument focused not on whether the stormwater discharges required a permit, but rather how to measure permit violations and who should be responsible for them. Under the District’s permit, monitoring stations have been placed where water flows within the storm sewer system rather than where it discharges to another body of water. Some observers thought the Court could use the case to clarify its prior Miccosukee decision where it indicated that water transfers within a single body of water were not discharges requiring a permit. I was unable to attend the argument, but the transcript of it suggests that it is not clear how the Court will rule.
On December 7 I finally took the plunge and placed my order for an all-electric Tesla Model S automobile. Last February the University of Maryland installed four electric vehicle charging stations at our parking garage, but they have been largely unused, except for a rare appearance by a Chevy Volt. My Prius will be seven years old next summer and have more than 100,000 miles on it and I was in the market for an electric car. Tesla opened a showroom in downtown DC not far from my home and last month its Model S won the award as Motor Trends “Car of the Year” for 2012. While some electric vehicle manufacturers are struggling, Tesla has produced a spectacular luxury vehicle that is now coming off its Fremont, California assembly line at the rate of 400 cars per week. The company reports that it recently turned cash flow positive for the first time. I am now in line for #15,443 of the Model S so it won’t be delivered to me until fall 2013, but what a car it is.
A particularly contentious set of issues at Doha were negotiations over the fund to help developing countries deal with climate change. Citing current economic problems, the U.S. and the EU refused to set precise figures for contributions to the fund during the period from 2013-2020. At Copenhagen in 2009 developed countries had promised to establish a green fund and to fund it at $100 billion/year by 2020. Some observers viewed the shift in the tone of the discussion from using the fund to assist developing countries with mitigation and adaptation toward using it to compensate them for “loss and damage” caused by the developed world as setting the stage for more conflict in future climate talks. The Durban Platform for completing by 2015 a new agreement to control global GHG emissions by the year still is in place, but there is considerable skepticism as to whether this goal will be achieved. At COP18 Xia Zhenhua, head of the Chinese delegation, stated that China would be willing to discuss adopting binding GHG emissions limits that would be effective after 2020.
On December 5 China’s Ministry of Environmental Protection released a plan pledging to reduce air pollutants in 13 major areas covering 117 cities in China. The plan seeks to reduce PM2.5 intensity by 5 percent by 2015 and to reduce the intensity of PM10 and sulfur dioxide by 10 percent by 2015. It also pledges a 7 percent reduction in the intensity of nitrogen dioxide emissions. The plan includes a requirement that new sources of air pollution offset their pollution by obtaining larger reductions in the same kind of pollution from existing sources. Earlier this year China’s State Council enacted new air quality standards that include for the first time the smallest particulates (PM2.5) and ozone. These are to be met throughout the nation by January 1, 2016. It is estimated that 70 percent of China’s cities currently do not meet the revised standards.
Last week the U.S. Supreme Court heard oral argument in two cases involving the Clean Water Act. In both cases the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of environmental interests. On Monday December 3 the Court heard argument in Decker v. Northwestern Environmental Defense Center, a case involving the question whether timber companies need Clean Water Act permits to control stormwater runoff from logging operations that flows through ditches and culverts along logging roads. Three days before the argument the U.S. Environmental Protection Agency (EPA) promulgated new regulations that purported to reverse the Ninth Circuit’s decision by clarifying that these were not the type of silvicultural operations that required a stormwater permit. Chief Justice Roberts expressed irritation that the Court had not been given more notice about the impending regulations, though the Solicitor General initially had advised the Court not to take the case because EPA would resolve the issue through regulations.
Professor Jeffrey Fisher, co-director of Stanford’s Supreme Court Litigation Clinic, argued that the Court should dismiss the cert petition as improvidently granted in light of the fact that the environmental groups would be challenging the new regulations as inconsistent with the Clean Water Act. Tim Bishop, arguing for the timber industry said the Court should prevent years of further litigation by reversing the Ninth Circuit and agreeing with EPA that permits are not needed. Following the argument students from my Environmental Law and Administrative Law classes came over to my house on Capital Hill for lunch and a post-mortem on the argument.
On Tuesday December 4 the Court heard Los Angeles County Flood Control District v. Natural Resources Defense Council. In this case the argument focused not on whether the stormwater discharges required a permit, but rather how to measure permit violations and who should be responsible for them. Under the District’s permit, monitoring stations have been placed where water flows within the storm sewer system rather than where it discharges to another body of water. Some observers thought the Court could use the case to clarify its prior Miccosukee decision where it indicated that water transfers within a single body of water were not discharges requiring a permit. I was unable to attend the argument, but the transcript of it suggests that it is not clear how the Court will rule.
On December 7 I finally took the plunge and placed my order for an all-electric Tesla Model S automobile. Last February the University of Maryland installed four electric vehicle charging stations at our parking garage, but they have been largely unused, except for a rare appearance by a Chevy Volt. My Prius will be seven years old next summer and have more than 100,000 miles on it and I was in the market for an electric car. Tesla opened a showroom in downtown DC not far from my home and last month its Model S won the award as Motor Trends “Car of the Year” for 2012. While some electric vehicle manufacturers are struggling, Tesla has produced a spectacular luxury vehicle that is now coming off its Fremont, California assembly line at the rate of 400 cars per week. The company reports that it recently turned cash flow positive for the first time. I am now in line for #15,443 of the Model S so it won’t be delivered to me until fall 2013, but what a car it is.
Sunday, December 2, 2012
COP18 in Doha, Myanmar Mine Protest, Poultry Pollution Suit, E-Law Films (by Bob Percival)
The Eighteenth Conference of the Parties (COP18) to the UN Framework Convention on Climate Change (UNFCCC) and the Eighth Meeting of the Parties to the Kyoto Protocol (CMP8) are underway in Doha, Qatar. It seems ironic that the conference is being held in Qatar, the country that is the world’s leader in per capita emissions of greenhouse gases (GHGs). As host of the 2022 football/soccer World Cup Qatar has pledged to air condition the outdoor stadiums that will be used for soccer’s premier event, though the electricity running the air conditioning supposedly will be generated by solar power. COP18 will run through next Friday December 7 and, as is usual with these events, most of the important decisions are likely to be made at the very end. There are 195 nations who are parties to the UNFCCC. On the agenda are a second round of commitments to the Kyoto Protocol, whose existing commitment period expires at the end of this year, and efforts to flesh out the outlines of a new global climate agreement to be finalized by 2015.
On November 29 government security forces in Myanmar violently attacked citizens protesting the expansion of a copper mine near the city of Monywa. The mine is owned jointly by a Chinese company and the Burmese military’s Union of Myanmar Economic Holdings. The security forces fired explosive devices and severely injured many of the protesters who included numerous monks. According to the protesters, expansion of the mine would displace the residents of more than twenty villages and cause severe environmental damage. Myanmar opposition leader Aung San Suu Kyi arrived at the site after the crackdown and agreed to participate in an investigation of what happened.
Last Wednesday I attended a farewell party in U.S. Attorney General Eric Holder’s office for my casebook co-author Chris Schroeder who is stepping down as Assistant Attorney General for the Office of Legal Policy. It was a wonderful event with warm remarks from Chris, Attorney General Holder, Deputy Attorney General Jim Cole, former acting Solicitor General Walter Dellinger and others. Chris will return to teaching at Duke next semester when we will be publishing the new seventh edition of our Environmental Regulation: Law, Science & Policy casebook.
On Friday I attended closing arguments in federal district court in Baltimore in the Waterkeeper Alliance’s landmark lawsuit against Hudson Farms and Perdue for poultry waste pollution of the Chesapeake Bay. The arguments followed briefing of proposed findings of fact and conclusions of law after a trial that spanned parts of three weeks. The basic issue in the case is whether a poultry CAFO with 40,000 birds violated the Clean Water Act by discharging poultry waste into a tributary of a river flowing into the Chesapeake Bay. The lawsuit was filed in March 2010. The University of Maryland’s Environmental Law Clinic is representing the Waterkeepers. In an important early victory for the Clinic Judge Nickerson denied Perdue’s motion to dismiss it as a defendant, holding that poultry integrators can be held liable for Clean Water Act violations by their contractor’s CAFO if they exercise sufficient control over their contractor’s chicken operations. Assateague Coastkeeper v. Hudson Farm, 727 F. Supp. 2d 433 (D.Md. 2010). The focus of the trial is now on whether the defendant’s CAFO did in fact discharge pollutants in violation of the Clean Water Act.
Last week was the end of classes for the fall semester at Maryland. Every year I have students in my Environmental Law class form small groups to make short documentary films about an environmental issue they are concerned about. Last Monday on the last day of class the students showed the first cut of their films. There are nine films this year. The topics of the films include: invasive species and ballast water, the impact of climate change on the wine industry, hydraulic fracturing, the work of the Baltimore Harbor Riverkeeper, offshore wind in Maryland, the impact of methamphetamine labs on the environment, oysters and the Chesapeake Bay, urban composting, and municipal climate action. The students have until February 1 to submit the final cuts of their films that will be submitted to a panel of judges. On March 27 we will be holding the annual “Golden Tree” award ceremony for the films. The films will then be made available for viewing online.
On November 29 government security forces in Myanmar violently attacked citizens protesting the expansion of a copper mine near the city of Monywa. The mine is owned jointly by a Chinese company and the Burmese military’s Union of Myanmar Economic Holdings. The security forces fired explosive devices and severely injured many of the protesters who included numerous monks. According to the protesters, expansion of the mine would displace the residents of more than twenty villages and cause severe environmental damage. Myanmar opposition leader Aung San Suu Kyi arrived at the site after the crackdown and agreed to participate in an investigation of what happened.
Last Wednesday I attended a farewell party in U.S. Attorney General Eric Holder’s office for my casebook co-author Chris Schroeder who is stepping down as Assistant Attorney General for the Office of Legal Policy. It was a wonderful event with warm remarks from Chris, Attorney General Holder, Deputy Attorney General Jim Cole, former acting Solicitor General Walter Dellinger and others. Chris will return to teaching at Duke next semester when we will be publishing the new seventh edition of our Environmental Regulation: Law, Science & Policy casebook.
On Friday I attended closing arguments in federal district court in Baltimore in the Waterkeeper Alliance’s landmark lawsuit against Hudson Farms and Perdue for poultry waste pollution of the Chesapeake Bay. The arguments followed briefing of proposed findings of fact and conclusions of law after a trial that spanned parts of three weeks. The basic issue in the case is whether a poultry CAFO with 40,000 birds violated the Clean Water Act by discharging poultry waste into a tributary of a river flowing into the Chesapeake Bay. The lawsuit was filed in March 2010. The University of Maryland’s Environmental Law Clinic is representing the Waterkeepers. In an important early victory for the Clinic Judge Nickerson denied Perdue’s motion to dismiss it as a defendant, holding that poultry integrators can be held liable for Clean Water Act violations by their contractor’s CAFO if they exercise sufficient control over their contractor’s chicken operations. Assateague Coastkeeper v. Hudson Farm, 727 F. Supp. 2d 433 (D.Md. 2010). The focus of the trial is now on whether the defendant’s CAFO did in fact discharge pollutants in violation of the Clean Water Act.
Last week was the end of classes for the fall semester at Maryland. Every year I have students in my Environmental Law class form small groups to make short documentary films about an environmental issue they are concerned about. Last Monday on the last day of class the students showed the first cut of their films. There are nine films this year. The topics of the films include: invasive species and ballast water, the impact of climate change on the wine industry, hydraulic fracturing, the work of the Baltimore Harbor Riverkeeper, offshore wind in Maryland, the impact of methamphetamine labs on the environment, oysters and the Chesapeake Bay, urban composting, and municipal climate action. The students have until February 1 to submit the final cuts of their films that will be submitted to a panel of judges. On March 27 we will be holding the annual “Golden Tree” award ceremony for the films. The films will then be made available for viewing online.
Tuesday, November 27, 2012
U.S./Mexico Colorado River Agreement, California GHG Allowance Auction, EU Suspends Aviation GHG Emissions Fee, Wilson Center China PIL Program (by Bob Percival)
On November 20 the governments of the U.S. and Mexico signed an historic agreement governing how they will share water from the Colorado River during the next five years. Mexico agreed to reduce its share of the water during drought conditions in return for an increased share of water in times when it is more abundant. Mexican farmers will be paid to give up three percent of their water allotment with the loss to be made up through improvements that will reduce leakage from their irrigation canals. Regional water agencies in Arizona, Nevada and Southern California will be purchasing 100,000-acre feet of water from Mexico. The agreement also includes a pilot program of water releases that are designed to restore wetlands in Northern Mexico that once had been an important habitat for migratory birds.
On November 19 the California Air Resources Board reported the results of its first quarterly auction of greenhouse gas (GHG) allowances under the state’s cap-and-trade program to combat global warming and climate change. More than seventy entities were qualified as bidders to participate in the auction. All 23,126,110 metric tons of vintage 2013 allowances that were offered for sale were sold at the auction. The settlement price per allowance was $10.09 per metric ton, slightly above the minimum auction reserve price of $10.00. Details of the auction are available at CARB’s website at: http://www.arb.ca.gov/cc/capandtrade/auction/november_2012/auction1_results_2012q4nov.pdf. A last minute lawsuit filed by the California Chamber of Commerce that claimed that the auction was a tax CARB had not been authorized to levy failed to stop the auction.
Airlines continued to hail the EU’s decision to suspend the January 1, 2013 date when foreign airlines flying to and from the EU were to be required to pay GHG emissions charges. The suspension was undertaken in order to give the International Civil Aviation Organization (ICAO) an opportunity to negotiate a global agreement. The EU warned that if the ICAO fails to make progress toward reaching a global agreement it will reinstate the charges. Legislation giving the U.S. Secretary of Transportation the authority to prohibit U.S. airlines from paying the charges was signed into law by President Obama today.
On November 27 I participated in a panel on public interest environmental litigation in China at the Woodrow Wilson Center for International Scholars in Washington. The program was sponsored by the Wilson Center’s China Environment Forum. Also on the panel were Jingjing Liu from Vermont Law School and Jessica Scott from the U.S. Environmental Protection Agency, who spoke about current environmental litigation in China by public interest groups, including the All China Environment Federation. I focused on the amendments to Article 55 of China’s Civil Procedure Code which cryptically authorizes environmental public interest litigation by agencies and other related groups as authorized by law. A tape of the presentation and copies of the slides will be placed online by the Wilson Center. See http://www.wilsoncenter.org/event/the-people’s-interest-openings-for-pollution-public-interest-law-cases-china.
On November 19 the California Air Resources Board reported the results of its first quarterly auction of greenhouse gas (GHG) allowances under the state’s cap-and-trade program to combat global warming and climate change. More than seventy entities were qualified as bidders to participate in the auction. All 23,126,110 metric tons of vintage 2013 allowances that were offered for sale were sold at the auction. The settlement price per allowance was $10.09 per metric ton, slightly above the minimum auction reserve price of $10.00. Details of the auction are available at CARB’s website at: http://www.arb.ca.gov/cc/capandtrade/auction/november_2012/auction1_results_2012q4nov.pdf. A last minute lawsuit filed by the California Chamber of Commerce that claimed that the auction was a tax CARB had not been authorized to levy failed to stop the auction.
Airlines continued to hail the EU’s decision to suspend the January 1, 2013 date when foreign airlines flying to and from the EU were to be required to pay GHG emissions charges. The suspension was undertaken in order to give the International Civil Aviation Organization (ICAO) an opportunity to negotiate a global agreement. The EU warned that if the ICAO fails to make progress toward reaching a global agreement it will reinstate the charges. Legislation giving the U.S. Secretary of Transportation the authority to prohibit U.S. airlines from paying the charges was signed into law by President Obama today.
On November 27 I participated in a panel on public interest environmental litigation in China at the Woodrow Wilson Center for International Scholars in Washington. The program was sponsored by the Wilson Center’s China Environment Forum. Also on the panel were Jingjing Liu from Vermont Law School and Jessica Scott from the U.S. Environmental Protection Agency, who spoke about current environmental litigation in China by public interest groups, including the All China Environment Federation. I focused on the amendments to Article 55 of China’s Civil Procedure Code which cryptically authorizes environmental public interest litigation by agencies and other related groups as authorized by law. A tape of the presentation and copies of the slides will be placed online by the Wilson Center. See http://www.wilsoncenter.org/event/the-people’s-interest-openings-for-pollution-public-interest-law-cases-china.
Sunday, November 18, 2012
BP Settles Criminal Charges,Trafigura Settles Dumping Case with Dutch, Kiobel Conference (by Bob Percival)
On Thursday November 15 Attorney General Eric Holder announced that BP had agreed to plead guilty to 14 criminal charges and to pay the U.S. government more than $4 billion for the 2010 oil spill at the Macondo well in the Gulf of Mexico. BP agreed to plead guilty to 12 felonies - 11 cases of manslaughter for each of the workers killed in the explosion and one felony count of lying to Congress about the amount of oil spilled. The settlement includes a criminal fine of $1 billion, $525 million to settle civil securities fraud charges by the Securities and Exchange Commission, $2.4 billion for environmental restoration in the Gulf states, and $350 million for research to improve oil spill prevention and response efforts. The Justice Department statement announcing the settlement is available online at: http://www.justice.gov/opa/pr/2012/November/12-ag-1369.html. The government also is bringing manslaughter charges against BP’s two “well-site leaders” for having negligently caused the deaths of 11 men. BP still faces even larger civil liability under the Clean Water Act, ranging from $6 to $21 billion, which may come out on the high end of that range in light of the company’s admission about lying to Congress about the size of the spill. BP announced that it had added $3.8 billion to the $38.1 billion charge it already had taken to cover its liability for the spill. BP’s press release is available online at: http://www.bp.com/genericarticle.do?categoryId=2012968&contentId=7080497
On Thursday I was interviewed about the settlement by Lv Xiao Hong on China Radio International (see http://gb.cri.cn/27824/2012/11/16/2625s3927789.htm (in Mandarin)). Her report was reprinted in the China Daily (http://www.chinadaily.com.cn/micro-reading/dzh/2012-11-16/content_7526200.html) and on the China Network web portal (http://news.china.com.cn/live/2012-11/16/content_17194212.htm) (both in Chinese). I argued that the reason BP was willing to pay such large sums to settle the charges was because of the strength of U.S. environmental laws. I emphasized that China needs to upgrade its oil spill liability laws so that victims of spills in Chinese waters, such as the 2011 Bohai Bay spill by Conoco Phillips, can be properly compensated. My colleague Jane Barrett, who is an expert on the use of criminal law in environmental cases, explained the importance of prosecuting those responsible for environmental crimes in several interviews that were quoted in the New York Times, Washington Post and other media.
On Friday November 16 Dutch prosecutors announced a settlement of criminal charges against the British commodity trading firm Trafigura for illegally exporting hazardous waste to the Ivory Coast in 2006. The company had been convicted of the charges in 2010 and fined 1 million Euros ($1.3 million), but both the company and the Dutch prosecutors appealed the penalty. Trafigura dumped hundreds of tons of toxic waste in the Ivory Coast after it attempted unsuccessfully to offload it in the port of Amsterdam. In the settlement, Trafigura agreed to pay not only the 1 million Euro fine, but also to pay Dutch authorities 300,000 Euros, the amount that the company had earned by the illegal export. It also agreed to pay a 67,000 Euro fine in exchange for the Dutch agreeing to drop efforts to prosecute Claude Dauphin, the chairman of Trafigura. Dutch prosecutors issued a statement saying that the settlement “brings the matter to an end in a manner which makes it clear that violations of international rules on dangerous waste will not be tolerated." The company welcomed the settlement and stated: “There is little doubt that mistakes were made and everyone involved would have wanted to see things handled differently." It added: "The company deeply regrets the impact the Probo Koala incident had - both real and perceived." In 2007 Trafigura agreed to a $198 million settlement with the government of the Ivory Coast. Reuters, Trafigura Reaches Toxic Waste Settlement with Dutch, Nov. 16, 2012 (http://www.reuters.com/article/2012/11/16/trafigura-court-idUSL5E8MGDZC20121116?feedType=RSS&feedName=industrialsSector). In September 2009 the company agreed to pay $48.7 million to settle private litigation brought in London by victims of the dumping.
Last week I participated in a terrific conference on the Kiobel Alien Tort Statute case that was reargued in the U.S. Supreme Court last month (see October 2, 2012 post on this blog). The case involves efforts by the survivors of environmental activists who were murdered by the Nigerian military to recover damages in U.S. federal court from Shell Oil for allegedly aiding and abetting their executions. The conference on ”Extra-territoriality Post-Kiobel: International and Comparative Legal Perspectives” was held at the University of Maryland School of Law on November 15 & 16 (see http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=130). It featured an opening keynote address by Professor Ralph Steinhardt of George Washington University, who has helped represent the plaintiffs before the Supreme Court and a luncheon keynote by Marco Simons, Legal Director of Earthrights International. Participants in the symposium were cautiously optimistic that whatever the Supreme Court does with Kiobel it will preserve the important Filartiga precedent that made the Alien Tort Statute a significant vehicle for bringing human rights litigation in U.S. courts.
On Thursday I was interviewed about the settlement by Lv Xiao Hong on China Radio International (see http://gb.cri.cn/27824/2012/11/16/2625s3927789.htm (in Mandarin)). Her report was reprinted in the China Daily (http://www.chinadaily.com.cn/micro-reading/dzh/2012-11-16/content_7526200.html) and on the China Network web portal (http://news.china.com.cn/live/2012-11/16/content_17194212.htm) (both in Chinese). I argued that the reason BP was willing to pay such large sums to settle the charges was because of the strength of U.S. environmental laws. I emphasized that China needs to upgrade its oil spill liability laws so that victims of spills in Chinese waters, such as the 2011 Bohai Bay spill by Conoco Phillips, can be properly compensated. My colleague Jane Barrett, who is an expert on the use of criminal law in environmental cases, explained the importance of prosecuting those responsible for environmental crimes in several interviews that were quoted in the New York Times, Washington Post and other media.
On Friday November 16 Dutch prosecutors announced a settlement of criminal charges against the British commodity trading firm Trafigura for illegally exporting hazardous waste to the Ivory Coast in 2006. The company had been convicted of the charges in 2010 and fined 1 million Euros ($1.3 million), but both the company and the Dutch prosecutors appealed the penalty. Trafigura dumped hundreds of tons of toxic waste in the Ivory Coast after it attempted unsuccessfully to offload it in the port of Amsterdam. In the settlement, Trafigura agreed to pay not only the 1 million Euro fine, but also to pay Dutch authorities 300,000 Euros, the amount that the company had earned by the illegal export. It also agreed to pay a 67,000 Euro fine in exchange for the Dutch agreeing to drop efforts to prosecute Claude Dauphin, the chairman of Trafigura. Dutch prosecutors issued a statement saying that the settlement “brings the matter to an end in a manner which makes it clear that violations of international rules on dangerous waste will not be tolerated." The company welcomed the settlement and stated: “There is little doubt that mistakes were made and everyone involved would have wanted to see things handled differently." It added: "The company deeply regrets the impact the Probo Koala incident had - both real and perceived." In 2007 Trafigura agreed to a $198 million settlement with the government of the Ivory Coast. Reuters, Trafigura Reaches Toxic Waste Settlement with Dutch, Nov. 16, 2012 (http://www.reuters.com/article/2012/11/16/trafigura-court-idUSL5E8MGDZC20121116?feedType=RSS&feedName=industrialsSector). In September 2009 the company agreed to pay $48.7 million to settle private litigation brought in London by victims of the dumping.
Last week I participated in a terrific conference on the Kiobel Alien Tort Statute case that was reargued in the U.S. Supreme Court last month (see October 2, 2012 post on this blog). The case involves efforts by the survivors of environmental activists who were murdered by the Nigerian military to recover damages in U.S. federal court from Shell Oil for allegedly aiding and abetting their executions. The conference on ”Extra-territoriality Post-Kiobel: International and Comparative Legal Perspectives” was held at the University of Maryland School of Law on November 15 & 16 (see http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=130). It featured an opening keynote address by Professor Ralph Steinhardt of George Washington University, who has helped represent the plaintiffs before the Supreme Court and a luncheon keynote by Marco Simons, Legal Director of Earthrights International. Participants in the symposium were cautiously optimistic that whatever the Supreme Court does with Kiobel it will preserve the important Filartiga precedent that made the Alien Tort Statute a significant vehicle for bringing human rights litigation in U.S. courts.
Sunday, November 11, 2012
U.S. Election & the Environment, Argentine Court Freezes Chevron Assets, Xayaburi Dam in Laos, ELI Annual DInner (by Bob Percival)
Proponents of environmental protection in the U.S. breathed a sign of relief last Tuesday November 6 when President Barack Obama was reelected by an electoral vote margin of 332 to 206. Obama swept all the “swing states” and received nearly 51% of the popular vote. Obama received 3.3 million more votes than Republican Mitt Romney, who had sought to blame slow economic growth on environmental regulation. Democrats increased their majority in the U.S. Senate by two votes, despite having to defend far more seats than Republicans. Even though Democrats gained seats in the U.S. House, Republicans retained control of the chamber. Democrats in the aggregate received more votes in House races than Republicans did, but widespread gerrymandering in redistricting helped Republicans retain their majority.
Even though climate change had rarely been mentioned in his presidential campaign, President Obama referred to it in his victory speech. “We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet,” Obama said. Despite pouring hundreds of millions of dollars into campaign ads blaming regulation for a weak economy, the U.S. Chamber of Commerce and other industry groups saw nearly every candidate they supported go down to defeat. By contrast, the League of Conservation Voters saw nearly every candidate they supported win election. Some are now arguing that the election results prove that Super PAC money and the Citizens United decision that freed corporations to become directly involved in campaigns makes little difference. I think this is an overstatement. The substantial funds the Obama campaign was able to raise for its own campaign were vital to the electoral outcome. However, much of the corporate money was spent on ads that were so implausible that they had little effect. One example is the numerous ads that Karl Rove’s group American Crossroads ran in Virginia accusing Democratic Senate candidate Tim Kaine of all manner of evils including being more hostile to funding education than Republican candidate George Allen. Kaine won by five percentage points in the final vote.
Voter initiatives approved gay marriage in three states and recreational use of marijuana in two, but the most hard fought environmental initiative did not fare as well. California voters defeated Proposition 37, a measure to require labeling of food products containing genetically modified material, by six percentage points. The measure had led by a wide margin in early polls, but public support faded after $46 million was spent in opposition to it, about five times the spending of its proponents. While I did not see these ads, my former students in California informed me that they were convincing in making the case that the measure was poorly drafted. Voters in Idaho, Kentucky, Nebraska and Wyoming added a right to hunt, fish and trap to their state constitutions. Idaho voters also approved a constitutional “right of farmers and ranchers to employ agricultural technology, modern livestock production and ranching practices.”
Last week a court in Argentina froze the assets of local subsidiaries of the Chevron Corporation in response to efforts by plaintiffs to enforce the $18 billion judgment against the company for oil pollution in Ecuador (see February 14, 2011 blog post). The court cited the Inter-American Convention on the Execution of Preventive Measures, which authorizes an asset freeze when a company fails to pay a final judgment. The treaty has been ratified by Argentina, Colombia, Ecuador, Guatemala, Paraguay, Peru, and Uruguay. On November 9 Chevron subsidiaries Chevron Argentina and Ing. Norberto Priu appealed the ruling, arguing that their assets should not be frozen because they are not directly owned by the Chevron. Plaintiffs also are trying to enforce the judgment in the courts of Brazil, Canada and Ecuador.
Last Wednesday Laotion officials reportedly were about to hold an official ceremony to launch construction of the controversial Xayaburi dam on the lower portion of the Mekong River. The 1,260 MW dam is designed to supply electricity to Thailand. Although the dam would be built entirely inside Laos, the countries of Cambodia and Vietnam have objected to the project, fearing that it will harm a rich river ecosystem that is the source of livelihood for millions of their citizens who live downstream. The U.S. State Department criticized Laos for rushing to begin construction without conducting an adequate environmental impact assessment. Thai environmental activist Pianporn Deetes noted that a Thai dam on the Mun River has contributed to the disappearance of nearly two-thirds of the 265 species that previously had been found in the river. Thomas Fuller & Poypiti Amatatham, Laos to Proceed with Dam Project on Mekong River, N.Y. Times, Nov. 7, 2012, at A3. Denying these news report, Laotian Prime Minister Thongsing Thammavong told the Wall Street Journal that the Xayaburi project was still on hold pending “further study.” Ben Otto, Prime Minister Says Dam Project Is on Hold, Wall St. J., Nov. 7, 2012, at A21.
On Thursday November 8 I was one of the nearly 800 people who attended the Environmental Law Institute’s annual dinner at the Omni Shoreham Hotel in Washington, D.C. EPA Administrator Lisa P. Jackson introduced Carter Strickland, Commissioner of the New York City Department of Environmental Protection. Strickland accepted ELI’s annual Award for Achievement in Environmental Law, Policy and Management on behalf of the City of New York for its “PlaNYC” to green the city’s infrastructure. Jackson, who is rumored to be leaving EPA during the next presidential term, joked that some of her potential successors might be in the audience for the event, which is widely attended by D.C. environmental lawyers. Mentioning a prominent Republican by name she added, “sorry about that.” But she then quickly admitted that she “really wasn’t sorry” that the election had now ruled him out.
Even though climate change had rarely been mentioned in his presidential campaign, President Obama referred to it in his victory speech. “We want our children to live in an America that isn't burdened by debt, that isn't weakened by inequality, that isn't threatened by the destructive power of a warming planet,” Obama said. Despite pouring hundreds of millions of dollars into campaign ads blaming regulation for a weak economy, the U.S. Chamber of Commerce and other industry groups saw nearly every candidate they supported go down to defeat. By contrast, the League of Conservation Voters saw nearly every candidate they supported win election. Some are now arguing that the election results prove that Super PAC money and the Citizens United decision that freed corporations to become directly involved in campaigns makes little difference. I think this is an overstatement. The substantial funds the Obama campaign was able to raise for its own campaign were vital to the electoral outcome. However, much of the corporate money was spent on ads that were so implausible that they had little effect. One example is the numerous ads that Karl Rove’s group American Crossroads ran in Virginia accusing Democratic Senate candidate Tim Kaine of all manner of evils including being more hostile to funding education than Republican candidate George Allen. Kaine won by five percentage points in the final vote.
Voter initiatives approved gay marriage in three states and recreational use of marijuana in two, but the most hard fought environmental initiative did not fare as well. California voters defeated Proposition 37, a measure to require labeling of food products containing genetically modified material, by six percentage points. The measure had led by a wide margin in early polls, but public support faded after $46 million was spent in opposition to it, about five times the spending of its proponents. While I did not see these ads, my former students in California informed me that they were convincing in making the case that the measure was poorly drafted. Voters in Idaho, Kentucky, Nebraska and Wyoming added a right to hunt, fish and trap to their state constitutions. Idaho voters also approved a constitutional “right of farmers and ranchers to employ agricultural technology, modern livestock production and ranching practices.”
Last week a court in Argentina froze the assets of local subsidiaries of the Chevron Corporation in response to efforts by plaintiffs to enforce the $18 billion judgment against the company for oil pollution in Ecuador (see February 14, 2011 blog post). The court cited the Inter-American Convention on the Execution of Preventive Measures, which authorizes an asset freeze when a company fails to pay a final judgment. The treaty has been ratified by Argentina, Colombia, Ecuador, Guatemala, Paraguay, Peru, and Uruguay. On November 9 Chevron subsidiaries Chevron Argentina and Ing. Norberto Priu appealed the ruling, arguing that their assets should not be frozen because they are not directly owned by the Chevron. Plaintiffs also are trying to enforce the judgment in the courts of Brazil, Canada and Ecuador.
Last Wednesday Laotion officials reportedly were about to hold an official ceremony to launch construction of the controversial Xayaburi dam on the lower portion of the Mekong River. The 1,260 MW dam is designed to supply electricity to Thailand. Although the dam would be built entirely inside Laos, the countries of Cambodia and Vietnam have objected to the project, fearing that it will harm a rich river ecosystem that is the source of livelihood for millions of their citizens who live downstream. The U.S. State Department criticized Laos for rushing to begin construction without conducting an adequate environmental impact assessment. Thai environmental activist Pianporn Deetes noted that a Thai dam on the Mun River has contributed to the disappearance of nearly two-thirds of the 265 species that previously had been found in the river. Thomas Fuller & Poypiti Amatatham, Laos to Proceed with Dam Project on Mekong River, N.Y. Times, Nov. 7, 2012, at A3. Denying these news report, Laotian Prime Minister Thongsing Thammavong told the Wall Street Journal that the Xayaburi project was still on hold pending “further study.” Ben Otto, Prime Minister Says Dam Project Is on Hold, Wall St. J., Nov. 7, 2012, at A21.
On Thursday November 8 I was one of the nearly 800 people who attended the Environmental Law Institute’s annual dinner at the Omni Shoreham Hotel in Washington, D.C. EPA Administrator Lisa P. Jackson introduced Carter Strickland, Commissioner of the New York City Department of Environmental Protection. Strickland accepted ELI’s annual Award for Achievement in Environmental Law, Policy and Management on behalf of the City of New York for its “PlaNYC” to green the city’s infrastructure. Jackson, who is rumored to be leaving EPA during the next presidential term, joked that some of her potential successors might be in the audience for the event, which is widely attended by D.C. environmental lawyers. Mentioning a prominent Republican by name she added, “sorry about that.” But she then quickly admitted that she “really wasn’t sorry” that the election had now ruled him out.
Sunday, November 4, 2012
In Memoriam - John Quarles, Hurricane Sandy & Climate Change, Doubts on Canadian Tar Sands Production (by Bob Percival)
The U.S. environmental law community lost a giant in the field last Monday October 29 when John R. Quarles, Jr. passed away. Quarles was the first general counsel of the U.S. Environmental Protection Agency (EPA) from 1970 to 1973. He then served as Deputy Administrator of the agency under both William Ruckelhaus and Russell Train until 1977. Quarles’s book Cleaning Up America, which was published in 1976, provides invaluable information about the early days of EPA. In my work on presidential oversight of agencies, I have extensively cited his tales about how he and Ruckelshaus resisted pressure from the Nixon White House and the Commerce Department, which led Nixon’s Quality of Life review program (the precursor of OMB review), to weaken EPA regulations and enforcement initiatives. His story about EPA’s resistance to pressure to weaken the agency’s initial limits on the amount of lead additives in gasoline is particularly enlightening. In 2005 Quarles received the Environmental Law Institute’s annual award for Achievement in Environmental Law, Policy and Management and he also received the Award for Distinguished Achievement in Environmental Law and Policy from the American Bar Association’s Section on Environment, Energy and Resources.
Much of Washington, D.C., where I live, was shut down last Monday and Tuesday due to Hurricane Sandy. Classes at the law school also were canceled, but the Baltimore/Washington area escaped the enormous damage the hurricane caused to the north. Several of my friends and colleagues in Baltimore lost power, but on Capital Hill it was mostly lots of rain and downed tree branches. Because the hurricane made landfall further north in New Jersey, its winds, which were revolving counter-clockwise, blew the storm surge seaward in the Chesapeake Bay area. However, had the storm made landfall in Virginia, the storm surge would have flooded much of D.C. around the tidal basin, including the national mall, the National Archives, the National Gallery of Art, the Department of Justice and the FBI. Jason Samenow, If Hurricane Sandy Had Come South: the Dramatic Storm Surge Scenario for Washington, D.C., Washington Post, Nov. 1, 2012 (http://www.washingtonpost.com/blogs/capital-weather-gang/post/if-hurricane-sandy-had-come-south-worst-case-storm-surge-scenario-for-washington-dc/2012/11/01/d1381248-2434-11e2-ac85-e669876c6a24_blog.html).
The scenes of flooding and devastation in New Jersey and New York are horrifying, though scientists had long predicted that this could happen due to climate change and sea level rise intensifying the power of hurricanes and increasing the scope of coastal flooding. One of my former students from China emailed me to express her concern about the hurricane. Noting that President Obama has received favorable reviews for his quick response to this tragedy just a week before the election, she observed: “I think the hurricane Sandy seems helping Obama. Maybe the climate want to choose a president more environmental friendly, so Sandy vote in its own way.” As I noted in my September 2 blog post, near the conclusion of his acceptance speech at the Republican National Convention, Mitt Romney stated: “President Obama promised to begin to slow the rise of the oceans and heal the planet,” which produced widespread laughter from the delegates. Romney then declared that: “MY promise is to help you and your family.” I commented then that now that the deleterious effects of global warming and climate change already have become manifest, it is hard to see why beginning to slow the rise of the oceans and healing the planet does not also help families. This sentiment has now been echoed by several commentators in the wake of the disastrous flooding and coastal destruction wrought by Hurricane Sandy.
There are increasing signs that the surge in U.S. domestic oil production and uncertainty concerning future global oil prices is diminishing interest in extraction of oil from Canadian tar sands. On November 1 Canada’s largest producer of tar sands oil, Suncor Energy, Inc., said it would delay a decision about pursuing three multi-billion dollar projects to expand tar sands oil production. The most expensive tar sands extraction techniques, involving extraction of bitumen to produce synthetic crude, require oil prices above $100/barrel to guarantee profitability. West Texas Intermediate crude is currently selling for less than $85/barrel. The Canadian Association of Petroleum Producers continues to forecast that oil production from Canadian tar sands will more than double by 2020 from 2011’s 1.6 million barrels/day. Chip Cummins, Mining Canada’s Oil Sands: Suddenly, Not a Sure Thing, Wall St. J., Nov. 2, 2012, at B1.
On Thursday I was in San Francisco for a reception for alumni and prospective students of the University of Maryland Carey School of Law. It was wonderful to get to see so many of my former students at the reception. On Friday I made a quick trip to Napa Valley before returning to D.C. on Saturday.
Much of Washington, D.C., where I live, was shut down last Monday and Tuesday due to Hurricane Sandy. Classes at the law school also were canceled, but the Baltimore/Washington area escaped the enormous damage the hurricane caused to the north. Several of my friends and colleagues in Baltimore lost power, but on Capital Hill it was mostly lots of rain and downed tree branches. Because the hurricane made landfall further north in New Jersey, its winds, which were revolving counter-clockwise, blew the storm surge seaward in the Chesapeake Bay area. However, had the storm made landfall in Virginia, the storm surge would have flooded much of D.C. around the tidal basin, including the national mall, the National Archives, the National Gallery of Art, the Department of Justice and the FBI. Jason Samenow, If Hurricane Sandy Had Come South: the Dramatic Storm Surge Scenario for Washington, D.C., Washington Post, Nov. 1, 2012 (http://www.washingtonpost.com/blogs/capital-weather-gang/post/if-hurricane-sandy-had-come-south-worst-case-storm-surge-scenario-for-washington-dc/2012/11/01/d1381248-2434-11e2-ac85-e669876c6a24_blog.html).
The scenes of flooding and devastation in New Jersey and New York are horrifying, though scientists had long predicted that this could happen due to climate change and sea level rise intensifying the power of hurricanes and increasing the scope of coastal flooding. One of my former students from China emailed me to express her concern about the hurricane. Noting that President Obama has received favorable reviews for his quick response to this tragedy just a week before the election, she observed: “I think the hurricane Sandy seems helping Obama. Maybe the climate want to choose a president more environmental friendly, so Sandy vote in its own way.” As I noted in my September 2 blog post, near the conclusion of his acceptance speech at the Republican National Convention, Mitt Romney stated: “President Obama promised to begin to slow the rise of the oceans and heal the planet,” which produced widespread laughter from the delegates. Romney then declared that: “MY promise is to help you and your family.” I commented then that now that the deleterious effects of global warming and climate change already have become manifest, it is hard to see why beginning to slow the rise of the oceans and healing the planet does not also help families. This sentiment has now been echoed by several commentators in the wake of the disastrous flooding and coastal destruction wrought by Hurricane Sandy.
There are increasing signs that the surge in U.S. domestic oil production and uncertainty concerning future global oil prices is diminishing interest in extraction of oil from Canadian tar sands. On November 1 Canada’s largest producer of tar sands oil, Suncor Energy, Inc., said it would delay a decision about pursuing three multi-billion dollar projects to expand tar sands oil production. The most expensive tar sands extraction techniques, involving extraction of bitumen to produce synthetic crude, require oil prices above $100/barrel to guarantee profitability. West Texas Intermediate crude is currently selling for less than $85/barrel. The Canadian Association of Petroleum Producers continues to forecast that oil production from Canadian tar sands will more than double by 2020 from 2011’s 1.6 million barrels/day. Chip Cummins, Mining Canada’s Oil Sands: Suddenly, Not a Sure Thing, Wall St. J., Nov. 2, 2012, at B1.
On Thursday I was in San Francisco for a reception for alumni and prospective students of the University of Maryland Carey School of Law. It was wonderful to get to see so many of my former students at the reception. On Friday I made a quick trip to Napa Valley before returning to D.C. on Saturday.
Sunday, October 28, 2012
Ningbo Protests, China Slows Nuclear Power Push, Bangalore Trash, California GMO Initiative, U.S. Companies Campaign, Perdue Trial (by Bob Percival)
Three days of sometimes violent protests have convinced Chinese authorities to halt the $8.8 billion expansion of a Sinopec petrochemical plant in Ningbo, China. The protests began last week with farmers blocking roads leading to the existing chemical plant. Ma Jun, director of the Institute of Public and Environmental Affairs in Beijing, stated that “We’ve seen the same pattern over and over again. Ignoring public concerns leads to confrontation. We can’t resolve all our environmental issues through street action. The cost is just too high.” Andrew Jacobs, Protests Over Chemical Plant Force Chinese Officials to Back Down, N.Y. Times, Oct. 28, 2012.
In a white paper released last week, the Chinese government revealed that it is reducing the pace of its expansion of nuclear power. The government now forecasts that it will have 40 gigawatts of installed nuclear power capacity by 2015, instead of the previous target of 50 gigawatts. That still represents an ambitious expansion from the 12.54 gigawatts of nuclear power installed at the end of 2011. Following the Fukushima Daiichi disaster in March 2010, China imposed a six-month moratorium on nuclear power construction, which has now resumed. But international and Chinese regulators had expressed concern that China was expanding the use of nuclear power so rapidly that there would not be enough qualified personnel to operate the plants safely. China’s decision to delay construction of some of the reactors in seven inland provinces may be a response to these concerns. Keith Bradshear, China Slows Development of Nuclear Power Plants, N.Y. Times, Oct. 25, 2012, at B9.
Dominion Corporation announced last week that it will decommission its 556 MW Kewaunee nuclear power plant located in Wisconsin. The decision was surprising because the plant received a 20-year extension of its operating license from the Nuclear Regulatory Commission in February 2011. Dominion tried to sell the plant, but was unsuccessful, an indication of how the plunging price of natural gas and the Fukushima Daiichi disaster have reduced interest in nuclear power in the U.S. Kewaunee will be the first U.S. nuclear reactor retired since Connecticut’s Millstone 1 was shut down in July 1998. Matthew L. Wald, Wisconsin Nuclear Reactor to Be Closed, N.Y. Times, Oct. 23, 2012, at B1.
An article published in Science magazine on Friday reports that 40 percent of the fish caught off the Japanese coast where the Fukushiima Daichii nuclear disaster occurred in March 2010 still have levels of cesium in excess of what the Japanese government considers to be safe. Ken O. Buessler, Fishing for Answers Off Fukushima, 338 Science 480 (2012). The contamination is believed to be the result of cesium in the seabed that could contaminate fish for decades even though radioactivity readings in the water column are now at safe levels. Approximately 80 percent of of the radioactivity released in the nuclear accident is believed to have entered the sea. Hiroko Tabuchi, Fish Off Japan’s Coast Said to Contain Elevated Levels of Cesium, N.Y. Times, Oct. 26, 2012, at A4.
On Friday October 26 China’s Supreme People’s Court heard a lawsuit brought by an American wind energy company, American Superconductor (AMSC), alleging that China’s largest vendor of wind turbines, Sinovel Wind Group, Ltd., stole its intellectual property. Sinovel is appealing two lower courts’ refusal to dismiss AMSC’s lawsuit. AMSC alleges that a former employee stole its software secrets and gave them to Sinovel, which quickly stopped paying AMSC for access to it. Keith Johnson, China to Weigh Corporate-Spy Case, Wall St. J., Oct. 26, 2012, at B3.
A trash haulers strike in Bangalore, India, has left the home of many of the country’s high-tech industries drowning in garbage Trash has not been collected for several weeks in what was once known as India’s Garden City. The crisis has exposed India’s poor regulation of landfills and extensive midnight dumping that has contaminated many sites where garbage is dumped in the country. Gardiner Harris, India’s Plague, Trash, Drowns Its Garden City During Strike, N.Y. Times, Oct. 27, 2012, at A4.
At the November 6 election California voters will decide whether to adopt Proposition 37, which would require labeling of products containing genetically modified organisms (GMOs). Proponents of the measure argue that the public should have a right to know whether products contain GMOs, while opponent argue that GMOs are safe and labeling will stoke unreasonable public fears. Companies opposing Proposition 37 have raised $40.9 million, while companies supporting it have raised $6.4 million. It is estimated that 94% of the cotton, 93% of soybeans, 90% of canola, and 88% of the corn grown in the U.S. is genetically modified. Julie Jargon & Ian Berry, Dough Rolls Out to Fight ‘Engineered’ Label on Foods, Wall St. J., Oct. 26, 2012, at B1.
The Supreme Court’s Citizens United decision holding that corporations have a First Amendment right to spend money to influence elections has released of flood of corporate money in this year’s election campaign. In addition to funding political action ads, the decision also has allowed companies to tell their employees how they think they should vote to preserve their jobs. Most companies are buying into the false mantra that Obama is anti-business and that if Mitt Romney is not elected capitalism will be at risk. Brody Mullins, Oil Firms Fund Political Outreach to Employees, Wall St. J., Oct. 26, 2012, at A6. But see, Bradley A. Smith, The Dangers of an Informed Electorate, Wall St. J., Oct. 26, 2012, at A11. Last week the New York Times reported that a piece of climate change artwork so offended corporate contributors to the University of Wyoming that they forced its removal and got the university to agree to give them veto power over future art displays. Dan Frosh, Art That Irked Energy Executives Is Gone, but Wyoming Dispute Whirls On, N.Y. Times, Oct. 27, 2012, at A13.
I previously have criticized both presidential campaigns for deliberately ignoring climate change issues. New York Times reporter John Broder reports that foreigners are astonished at the lack of any serious discussion of climate change by the U.S. presidential candidates. He notes that President Obama, while campaigning in Iowa recently, did state that “climate change isn’t a hoax, The droughts we’ve seen, the floods, the wildfires, those aren’t a joke. They’re a threat to our children’s future. And we can do something about it.” John M, Broder, Candidates Agree World Is Warming, but Talk Stops There, N.Y. Times, Oct. 26, 2012, at A16.
Last week the testimonial phase was completed in the trial where our Environmental Law Clinic is representing the Riverkeepers against the Perdue Corporation for polluting the Chesapeake Bay with chicken waste. The trial judge has asked the parties to submit proposed findings of fact and conclusions of law and he has scheduled final oral arguments for November 30.
Hundreds of photos of last summer’s 10th Colloquium of the IUCN Academy of Environmental Law, which was held at Maryland, have been posted online at: (http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=115).
In a white paper released last week, the Chinese government revealed that it is reducing the pace of its expansion of nuclear power. The government now forecasts that it will have 40 gigawatts of installed nuclear power capacity by 2015, instead of the previous target of 50 gigawatts. That still represents an ambitious expansion from the 12.54 gigawatts of nuclear power installed at the end of 2011. Following the Fukushima Daiichi disaster in March 2010, China imposed a six-month moratorium on nuclear power construction, which has now resumed. But international and Chinese regulators had expressed concern that China was expanding the use of nuclear power so rapidly that there would not be enough qualified personnel to operate the plants safely. China’s decision to delay construction of some of the reactors in seven inland provinces may be a response to these concerns. Keith Bradshear, China Slows Development of Nuclear Power Plants, N.Y. Times, Oct. 25, 2012, at B9.
Dominion Corporation announced last week that it will decommission its 556 MW Kewaunee nuclear power plant located in Wisconsin. The decision was surprising because the plant received a 20-year extension of its operating license from the Nuclear Regulatory Commission in February 2011. Dominion tried to sell the plant, but was unsuccessful, an indication of how the plunging price of natural gas and the Fukushima Daiichi disaster have reduced interest in nuclear power in the U.S. Kewaunee will be the first U.S. nuclear reactor retired since Connecticut’s Millstone 1 was shut down in July 1998. Matthew L. Wald, Wisconsin Nuclear Reactor to Be Closed, N.Y. Times, Oct. 23, 2012, at B1.
An article published in Science magazine on Friday reports that 40 percent of the fish caught off the Japanese coast where the Fukushiima Daichii nuclear disaster occurred in March 2010 still have levels of cesium in excess of what the Japanese government considers to be safe. Ken O. Buessler, Fishing for Answers Off Fukushima, 338 Science 480 (2012). The contamination is believed to be the result of cesium in the seabed that could contaminate fish for decades even though radioactivity readings in the water column are now at safe levels. Approximately 80 percent of of the radioactivity released in the nuclear accident is believed to have entered the sea. Hiroko Tabuchi, Fish Off Japan’s Coast Said to Contain Elevated Levels of Cesium, N.Y. Times, Oct. 26, 2012, at A4.
On Friday October 26 China’s Supreme People’s Court heard a lawsuit brought by an American wind energy company, American Superconductor (AMSC), alleging that China’s largest vendor of wind turbines, Sinovel Wind Group, Ltd., stole its intellectual property. Sinovel is appealing two lower courts’ refusal to dismiss AMSC’s lawsuit. AMSC alleges that a former employee stole its software secrets and gave them to Sinovel, which quickly stopped paying AMSC for access to it. Keith Johnson, China to Weigh Corporate-Spy Case, Wall St. J., Oct. 26, 2012, at B3.
A trash haulers strike in Bangalore, India, has left the home of many of the country’s high-tech industries drowning in garbage Trash has not been collected for several weeks in what was once known as India’s Garden City. The crisis has exposed India’s poor regulation of landfills and extensive midnight dumping that has contaminated many sites where garbage is dumped in the country. Gardiner Harris, India’s Plague, Trash, Drowns Its Garden City During Strike, N.Y. Times, Oct. 27, 2012, at A4.
At the November 6 election California voters will decide whether to adopt Proposition 37, which would require labeling of products containing genetically modified organisms (GMOs). Proponents of the measure argue that the public should have a right to know whether products contain GMOs, while opponent argue that GMOs are safe and labeling will stoke unreasonable public fears. Companies opposing Proposition 37 have raised $40.9 million, while companies supporting it have raised $6.4 million. It is estimated that 94% of the cotton, 93% of soybeans, 90% of canola, and 88% of the corn grown in the U.S. is genetically modified. Julie Jargon & Ian Berry, Dough Rolls Out to Fight ‘Engineered’ Label on Foods, Wall St. J., Oct. 26, 2012, at B1.
The Supreme Court’s Citizens United decision holding that corporations have a First Amendment right to spend money to influence elections has released of flood of corporate money in this year’s election campaign. In addition to funding political action ads, the decision also has allowed companies to tell their employees how they think they should vote to preserve their jobs. Most companies are buying into the false mantra that Obama is anti-business and that if Mitt Romney is not elected capitalism will be at risk. Brody Mullins, Oil Firms Fund Political Outreach to Employees, Wall St. J., Oct. 26, 2012, at A6. But see, Bradley A. Smith, The Dangers of an Informed Electorate, Wall St. J., Oct. 26, 2012, at A11. Last week the New York Times reported that a piece of climate change artwork so offended corporate contributors to the University of Wyoming that they forced its removal and got the university to agree to give them veto power over future art displays. Dan Frosh, Art That Irked Energy Executives Is Gone, but Wyoming Dispute Whirls On, N.Y. Times, Oct. 27, 2012, at A13.
I previously have criticized both presidential campaigns for deliberately ignoring climate change issues. New York Times reporter John Broder reports that foreigners are astonished at the lack of any serious discussion of climate change by the U.S. presidential candidates. He notes that President Obama, while campaigning in Iowa recently, did state that “climate change isn’t a hoax, The droughts we’ve seen, the floods, the wildfires, those aren’t a joke. They’re a threat to our children’s future. And we can do something about it.” John M, Broder, Candidates Agree World Is Warming, but Talk Stops There, N.Y. Times, Oct. 26, 2012, at A16.
Last week the testimonial phase was completed in the trial where our Environmental Law Clinic is representing the Riverkeepers against the Perdue Corporation for polluting the Chesapeake Bay with chicken waste. The trial judge has asked the parties to submit proposed findings of fact and conclusions of law and he has scheduled final oral arguments for November 30.
Hundreds of photos of last summer’s 10th Colloquium of the IUCN Academy of Environmental Law, which was held at Maryland, have been posted online at: (http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=115).
Monday, October 22, 2012
Environment Absent from Presidential Debates, Keystone Pipeline Briefly Shut Down, Justice Yacoob, ACOEL (by Bob Percival)
During the second U.S. presidential debate between President Obama and former governor Mitt Romney on October 16 and the just-completed third debate on October 22, there was absolutely no discussion of climate change. Candy Crowley of CNN, moderator of the second debate, which employed a town hall format, stated after the debate that she had a questioner who was planning to ask a climate change question (“for all of you climate change people”), but she simply ran out of time. In the second debate the candidates did discuss oil and gas production with each accusing the other of being anti-coal, but there was no expression of concern for the environment. This contrasts with the 2008 presidential debates where both then-Senator Obama and Senator McCain expressed concern over climate change, while disagreeing over how much emphasis to put on increased fossil fuel production.
TransCanada’s Keystone pipeline that carries nearly 600,000 barrels of crude oil each day from Canada to the U.S. Midwest, was shut down on Wednesday October 17 after safety tests indicated potential problems. Since the 2,100-mile pipeline was opened in 2010 there have been more than a dozen minor leaks of oil from it. Ben Lefebvre & Chip Cummings, Pipeline Company Idles Keystone Temporarily, Wall St. Journal, Oct. 19, 2012, at B6. Environmentalists opposing the plan to construct the Keystone XL pipeline argue than it will be riskier because it will be carrying heavier, more acidic oil that will corrode pipes faster. The pipeline was restarted on the afternoon of Monday October 22 after some sections were excavated and inspected.
On Wednesday October 17, Rebecca Fenneman, general counsel of the Federal Maritime Commission (FMC), was a guest speaker in my Administrative Law class. Ms. Fenneman is a 1996 graduate of the University of Maryland School of Law. She joined a group of students for lunch prior to class to discuss her career path and the work of the FMC, which regulates maritime shipping into U.S. ports. Due to the importance of global maritime trade, the FMC is particularly active in interacting with government officials in other countries, including China.
On Thursday October 18 I had lunch with Justice Zac Yacoob of the Constitutional Court of South Africa. Justice Yacoob, who played a major role in South Africa’s transition to constitutional rule, was appointed to the court by Nelson Mandela in 1998. He is currently visiting Maryland as a distinguished scholar. Joining me at lunch was visiting Professor Zhao Huiyu of Shanghai Jiaotong University who indicated that Chinese legal scholars are particularly interested in South Africa as a model for how a transition to democracy can be affected. Justice Yacoob plans to visit my Environmental Law class on Wednesday October 24 when we discuss the concept of “judicial takings” and the U.S. Supreme Court’s Stop the Beach decision.
On Friday October 19 I was inducted as a fellow of the American College of Environmental Lawyers (ACOEL). I then attended ACOEL’s annual meeting and introduced myself to the existing members of the organization, most of whom are practitioners of environmental law. There was considerable interest in harnessing some of the incredible talent in the organization for pro bono public service projects, including possible projects to assist environmental groups in China and other countries. I greatly enjoyed getting to network with old and new friends and to discuss current cutting edge issues in environmental law, including the debate over how hydraulic fracturing should be regulated.
TransCanada’s Keystone pipeline that carries nearly 600,000 barrels of crude oil each day from Canada to the U.S. Midwest, was shut down on Wednesday October 17 after safety tests indicated potential problems. Since the 2,100-mile pipeline was opened in 2010 there have been more than a dozen minor leaks of oil from it. Ben Lefebvre & Chip Cummings, Pipeline Company Idles Keystone Temporarily, Wall St. Journal, Oct. 19, 2012, at B6. Environmentalists opposing the plan to construct the Keystone XL pipeline argue than it will be riskier because it will be carrying heavier, more acidic oil that will corrode pipes faster. The pipeline was restarted on the afternoon of Monday October 22 after some sections were excavated and inspected.
On Wednesday October 17, Rebecca Fenneman, general counsel of the Federal Maritime Commission (FMC), was a guest speaker in my Administrative Law class. Ms. Fenneman is a 1996 graduate of the University of Maryland School of Law. She joined a group of students for lunch prior to class to discuss her career path and the work of the FMC, which regulates maritime shipping into U.S. ports. Due to the importance of global maritime trade, the FMC is particularly active in interacting with government officials in other countries, including China.
On Thursday October 18 I had lunch with Justice Zac Yacoob of the Constitutional Court of South Africa. Justice Yacoob, who played a major role in South Africa’s transition to constitutional rule, was appointed to the court by Nelson Mandela in 1998. He is currently visiting Maryland as a distinguished scholar. Joining me at lunch was visiting Professor Zhao Huiyu of Shanghai Jiaotong University who indicated that Chinese legal scholars are particularly interested in South Africa as a model for how a transition to democracy can be affected. Justice Yacoob plans to visit my Environmental Law class on Wednesday October 24 when we discuss the concept of “judicial takings” and the U.S. Supreme Court’s Stop the Beach decision.
On Friday October 19 I was inducted as a fellow of the American College of Environmental Lawyers (ACOEL). I then attended ACOEL’s annual meeting and introduced myself to the existing members of the organization, most of whom are practitioners of environmental law. There was considerable interest in harnessing some of the incredible talent in the organization for pro bono public service projects, including possible projects to assist environmental groups in China and other countries. I greatly enjoyed getting to network with old and new friends and to discuss current cutting edge issues in environmental law, including the debate over how hydraulic fracturing should be regulated.
Monday, October 15, 2012
Perdue Trial Opens, Oil Industry Sues Over Disclosure Regs, Supreme Court Rejects Chevron Ecuador Challenge, Macalester Visit (by Bob Percival)
On Tuesday October 9 I attended the opening of the long-awaited trial of the Waterkeepers’ lawsuit against the poultry industry (Perdue Incorporated) for polluting the Chesapeake Bay with chicken waste. The Waterkeepers are represented by the University of Maryland’s Environmental Law Clinic and the lawsuit has spawned outrageous attacks on the clinic by politicians close to the poultry industry, including Maryland’s Governor Matin O’Malley. Clinic Director Professor Jane Barrett gave a spectacular opening argument that explained the importance of the lawsuit and responded to the defendants’ false assertions that the suit seeks to destroy family farmers. It is anticipated that the trial, which is being held in federal district court in Baltimore, will take several weeks.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Sunday, October 7, 2012
EU Nuclear Safety Report, Arkansas Takings Argument, Asian Carp Delay & CDM Update (by Bob Percival)
Last week Gunther Oettinger, European Commissioner for Energy, announced that EU countries may need to spend as much as 25 billion Euros ($32.3 billion) to increase the safety of their nuclear power plants. The announcement was based on the results of a report on the safety of nuclear power plants in Europe that had been commissioned by the EU in the wake of Japan’s Fukushima Daiichi disaster. The report concluded that safety standards in the fourteen EU countries that use nuclear power are high, but that they upgrades need to be made to ensure that nuclear power plants can survive extreme natural events. Allesandro Torello, Billions Needed to Improve Safety on Nuclear Plants, Wall St. Journal, Oct. 5, 2012, at A8.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
Tuesday, October 2, 2012
Kiobel Reargument, Total Opposes Arctic Drilling as Too RIsky (by Bob Percival)
On Monday October 1 I went to the Supreme Court for the reargument in Kiobel v. Royal Dutch Petroleum Co. The case involves the question whether foreign plaintiffs can sue corporations under the Alien Tort Statute (ATS) for violations of the “law of nations.” Plaintiffs, the survivors of environmental activists in Nigeria who were summarily executed by Nigeria’s military, argue that Shell Oil (Royal Dutch Petroleum) aided and abetted in the executions to silence critics of oil pollution in Nigeria. Plaintiffs are asking the Court to reverse a decision by the U.S. Court of Appeals for the Second Circuit holding that only nations and individuals, but not corporations, can be held liable in tort for violations of international law.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Sunday, September 23, 2012
Kivalina Decision, Russell Train's Passing, House "War on Coal" Bill, Brazil Mining Proposal (by Bob Percival)
On Friday September 21 the U.S. Court of Appeals for the Ninth Circuit dismissed a climate change public nuisance suit seeking damages to relocate an Alaskan village disappearing due to sea level rise. In Native Village of Kivalina v. ExxonMobil Corporation the village sued 22 oil , energy and utility companies, alleging that they had contributed to global warming and climate change which was causing the sea level rise. In 2009 federal district judge Saundra v. Armstrong dismissed the case as a non-justiciable political question. The appellate panel affirmed the dismissal, but on the narrower ground that the Clean Air Act had displaced the federal common law of nuisance concerning emissions of greenhouse gases (GHGs), based on the Supreme Court’s June 2011 decision in American Electric Power v. Connecticut (AEP). A copy of the Ninth Circuit’s Kivalina decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2012/09/21/09-17490.pdf. In a concurring opinion District Judge Philip M Pro, sitting on the appellate panel by designation, argued that the plaintiffs also lacked standing to bring their lawsuit because they had failed to make sufficient allegations tying the defendants to their alleged injuries.
The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.
On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.
A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.
On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.
Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.
Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.
After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.
The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.
On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.
A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.
On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.
Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.
Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.
After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.
Sunday, September 16, 2012
Japan to Phase Out Nuclear Power, Hollande Rejects Fracking, India Cuts Fuel Subsidies, China Legal Reforms (by Bob Percival)
Last week Japan joined Germany in announcing that the country will phase out nuclear power. The Japanese government announced on September 14 that all 50 of its nuclear reactors will be shut down by the year 2040, nearly 20 years after the German phaseout is to be complete. The Japanese decision is particularly significant because the country had been the third largest nuclear generator with 30 percent of its electricity coming from nuclear power prior to the Fukushima Daiichi disaster. Prior to the accident, Japan had planned to increase its use of nuclear power to 50 percent of all electricity generation by 2030. Now that the government has announced a phaseout of nuclear power, it is believed that it will be easier to restart existing reactors, which will be allowed to operated until the end of their 40-year operating lives. Jonathan Soble & Javier Blas, Financial Times, Sept. 15/16, 2012, p. 3. Japan’s nuclear phaseout likely will increase demand for natural gas-fired plants and renewable energy sources, though China and the UK are planning significant expansions of nuclear power in their countries and it is not clear that Japan will stop work on nuclear powerplants already under construction. Guy Chazan & Pilita Clark, Financial Times, Sept. 15/16, 2012, p. 12.
France’s ruling party has promised to reduce the country’s reliance on nuclear power from 75 percent to 50 percent by closing 24 nuclear reactors by the year 2025. On September 15 French President Francois Hollande announced that the nuclear powerplant at Fessenheim would be closed. He also announced that he effectively would continue the country’s moratorium on hydraulic fracturing (“fracking”) by rejecting seven applications for shale gas exploration. Hollande cited “the heavy risk to health and the environment” from fracking in rejecting the applications. He also announced the creation of a national agency to protect biodiversity.
On September 13 India announced that it would significantly reduce the $34 billion it spends each year to subsidize the price of fuel. The goverment’s action is expected to raise diesel fuel prices to consumers by 14 percent. The move was taken as a measure to reduce the government’s large budget deficit to avoid a downgrade of the country’s credit rating to “junk” bond status.
On September 12 Professor Tan Hong of China’s National Judges College visited the University of Maryland Carey School of Law. He gave a terrific talk about recent legal reforms in China to a large and enthusiastic group of environmental and international law students. Tim Epp of EPA’s Environmental Appeals Board is hosting Professor Tan’s visit to Washington. Professor Tan discussed administrative cases filed when citizens challenge actions by local units of government. There are more than 1 million such cases filed each year with the most frequent category of cases being urban development followed by natural resources cases. Labor cases are the fourth (and fastest growing) category. Professor Tan noted that when China authorized intermediate courts to provide “off-site jurisdiction” by transferring cases from local courts who might favor local agencies to another jurisdiction within the region, the success rate of plaintiffs rose from 40 percent to 70 percent. One oddity is that Article 50 of China’s Administrative Procedure Law has been interpreted to bar mediation of administrative cases so that settlements are difficult. Professor Tan predicted that this provision would be amended. He also noted that the Standing Committee of the National People’s Congress has just amended the China’s Code of Civil Procedure to allow authorized organizations to bring public interest litigation in environmental cases. China’s Ministry of Environmental Protection also recently announced that environmental impact assessments and government decisions concerning them will be made available to the public online.
France’s ruling party has promised to reduce the country’s reliance on nuclear power from 75 percent to 50 percent by closing 24 nuclear reactors by the year 2025. On September 15 French President Francois Hollande announced that the nuclear powerplant at Fessenheim would be closed. He also announced that he effectively would continue the country’s moratorium on hydraulic fracturing (“fracking”) by rejecting seven applications for shale gas exploration. Hollande cited “the heavy risk to health and the environment” from fracking in rejecting the applications. He also announced the creation of a national agency to protect biodiversity.
On September 13 India announced that it would significantly reduce the $34 billion it spends each year to subsidize the price of fuel. The goverment’s action is expected to raise diesel fuel prices to consumers by 14 percent. The move was taken as a measure to reduce the government’s large budget deficit to avoid a downgrade of the country’s credit rating to “junk” bond status.
On September 12 Professor Tan Hong of China’s National Judges College visited the University of Maryland Carey School of Law. He gave a terrific talk about recent legal reforms in China to a large and enthusiastic group of environmental and international law students. Tim Epp of EPA’s Environmental Appeals Board is hosting Professor Tan’s visit to Washington. Professor Tan discussed administrative cases filed when citizens challenge actions by local units of government. There are more than 1 million such cases filed each year with the most frequent category of cases being urban development followed by natural resources cases. Labor cases are the fourth (and fastest growing) category. Professor Tan noted that when China authorized intermediate courts to provide “off-site jurisdiction” by transferring cases from local courts who might favor local agencies to another jurisdiction within the region, the success rate of plaintiffs rose from 40 percent to 70 percent. One oddity is that Article 50 of China’s Administrative Procedure Law has been interpreted to bar mediation of administrative cases so that settlements are difficult. Professor Tan predicted that this provision would be amended. He also noted that the Standing Committee of the National People’s Congress has just amended the China’s Code of Civil Procedure to allow authorized organizations to bring public interest litigation in environmental cases. China’s Ministry of Environmental Protection also recently announced that environmental impact assessments and government decisions concerning them will be made available to the public online.
Monday, September 10, 2012
Candidates on Climate Change, BP Spill Litigation, Arctic Drilling and Ice Melt, Benefits of Clean Air & Nanjing Judges (by Bob Percival)
In his acceptance speech at the Democratic National Convention, President Obama declared that “climate change is not a hoax” and that “more droughts and floods and wildfires” are “a threat to our children’s future.” In online replies to questions from scientists published at http://www.sciencedebate.org/debate12/, Republican candidate Mitt Romney seemed to backtrack on his acceptance speech by stating that: "I am not a scientist myself, but my best assessment of the data is that the world is getting warmer, that human activity contributes to that warming, and that policymakers should therefore consider the risk of negative consequences."
On September 5 the Justice Department filed a brief in connection with BP’s settlement of $7.8 billion in private civil claims. The brief argued that BP had engaged in gross negligence and willful misconduct in connection with the 2010 Gulf oil spill. The filing was designed to preserve the government’s ability to seek the maximum penalty of $21 billion against BP for gross negligence if settlement negotiations with the government fail.
Over the weekend Royal Dutch Shell began drilling the first pilot well in the Chukchi Sea off the northern coast of Alaska. It has taken Shell seven years and more than $4 billion to gain approval for the drilling. The well is in shallow water (only 130 feet deep), but it is estimated that any oil is 8,000 feet below the seabed. Shell will have to cease drilling for the season by September 24 when it will be only 1,400 feet down, but it expects to complete the well next summer. Shell has a second drill ship that will drill in the Beaufort Sea northeast of Alaska, but it has not been deployed yet in order to avoid interfering with whale migration. Environmentalists continue to maintain that Shell is ill-equipped to contain an oil spill int he arctic.
Last week the Arctic ice cap experienced more extensive melting this summer than ever previously recorded. Scientists attributed the unprecedented thaw to both natural weather variations and the impact of global warming. The ice cap shrunk from more than 9 million square miles in March 2012 to 1.54 million square miles. This was 70,000 square miles less than the previous record low recorded in September 2007. The six lowest Arctic ice cap levels recorded have occurred during the last six summers. Melting of the Arctic ice cap can have significant effects on weather patterns, but it does not raise sea levels because the ice is floating over sea water and displaces the same amount of water when frozen as it releases when melted. Robert Lee Hotz, Record Ice Thaw in Arctic, Greenland, Wall St. J., Sept. 7, 2012, at A2. Concern about sea level rise has focused on this summer’s commencement of dramatic melting over nearly the entire Greenland ice cap, including at the highest elevations of this land mass.
On September 7, 2012, the U.S. and Canada amended their bilateral agreement concerning environmental protection of the Great Lakes. This is the third time the 1978 agreement has been amended with the previous amendments being made in 1983 and 1987. EPA’s website describes the amendments in the following terms: “The updated Agreement facilitates United States and Canadian action on threats to Great Lakes water quality and includes measures to prevent ecological harm. New provisions address the nearshore environment, aquatic invasive species, habitat degradation, and the effects of climate change. It also supports continued work on existing threats to people's health and the environment in the Great Lakes basin such as harmful algae, toxic chemicals, and discharges from vessels.” A copy of the amended agreement is available online at: http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf
In his new book The Silent Epidemic: Coal and the Hidden Threat to Health, which is being published this month by MIT Press, Professor Alan H. Lockwood of the University of Buffalo notes that the Clean Air Act has prevented more than 180,000 deaths per year, a number that may increase by 2020 to 230,000 avoided deaths per year. This will produce an estimated $22 trillion in net benefits, a number that is more than 40 times greater than estimates of compliance costs. Lockwood estimates that this has saved the federal government so much in federally-funded health costs that the feds could have paid for all compliance costs and still have come out ahead. A summary of the study is available online at: http://www.theatlantic.com/health/archive/2012/09/how-the-clean-air-act-has-saved-22-trillion-in-health-care-costs/262071/
On Tuesday September 4 I presented a two and a half hour lecture to a group of twenty judges from the Intermediate People’s Court of Nanjing Province, China. The judges are in the U.S. on a training program sponsored by the Chinese government and the Maryland China Initiative that is based at the University of Maryland at College Park. The judges were a truly exceptional group who asked some of the best questions I have ever received from a visiting foreign delegation. We had a lively discussion of how China can improve its environmental laws, the importance of citizen suits, and political pressure as a defense tactic.
On Thursday September 6 I presented a paper on the common law of interstate nuisance in the wake of the Supreme Court’s 2011 American Electric Power decision at the first Legal Theory Workshop of the year at Maryland. I greatly appreciated the comments of my colleagues on the paper. The paper, entitled “Of Coal, Climate and Carp: Reconsidering the Federal Common Law of Interstate Nuisance,” focuses on North Carolina’s state common law nuisance litigation against the TVA’s upwind coal-fired powerplants, the Supreme Court’s decision in American Electric Power v. Connecticut, and efforts to use federal common law to stop the spread of invasive species of Asian carp to the Great Lakes.
On Thursday night I went with Maryland Dean Phoebe Haddon, Maryland Professor Bob Condlin and Georgetown Professor Phil Schrag to a sold-out Camden Yards for the most important baseball game of the year for the Baltimore Orioles. Until baseball came to Washington, D.C. in 2005, I had been an Orioles season ticket holder for nearly 25 years and a Yankee fan for more than four decades. I then became a Washington Nationals season ticket holder (since I live in D.C.) and a passionate fan of the Nats. The Orioles defeated the Yankees 10-6 by hitting six home runs in the game (incredibly a feat the Nats accomplished at home for the first two times on Tuesday and Wednesday). The victory tied the Os with the Yankees for first place in the American League East. After seven years without a winning record, this has been a dream season in which the Nats currently have the best record in all baseball with less than four weeks left in the season. A beltway World Series next month between the Nats and the Orioles would be a cherished dream to baseball fans in the Baltimore/Washington area.
On September 5 the Justice Department filed a brief in connection with BP’s settlement of $7.8 billion in private civil claims. The brief argued that BP had engaged in gross negligence and willful misconduct in connection with the 2010 Gulf oil spill. The filing was designed to preserve the government’s ability to seek the maximum penalty of $21 billion against BP for gross negligence if settlement negotiations with the government fail.
Over the weekend Royal Dutch Shell began drilling the first pilot well in the Chukchi Sea off the northern coast of Alaska. It has taken Shell seven years and more than $4 billion to gain approval for the drilling. The well is in shallow water (only 130 feet deep), but it is estimated that any oil is 8,000 feet below the seabed. Shell will have to cease drilling for the season by September 24 when it will be only 1,400 feet down, but it expects to complete the well next summer. Shell has a second drill ship that will drill in the Beaufort Sea northeast of Alaska, but it has not been deployed yet in order to avoid interfering with whale migration. Environmentalists continue to maintain that Shell is ill-equipped to contain an oil spill int he arctic.
Last week the Arctic ice cap experienced more extensive melting this summer than ever previously recorded. Scientists attributed the unprecedented thaw to both natural weather variations and the impact of global warming. The ice cap shrunk from more than 9 million square miles in March 2012 to 1.54 million square miles. This was 70,000 square miles less than the previous record low recorded in September 2007. The six lowest Arctic ice cap levels recorded have occurred during the last six summers. Melting of the Arctic ice cap can have significant effects on weather patterns, but it does not raise sea levels because the ice is floating over sea water and displaces the same amount of water when frozen as it releases when melted. Robert Lee Hotz, Record Ice Thaw in Arctic, Greenland, Wall St. J., Sept. 7, 2012, at A2. Concern about sea level rise has focused on this summer’s commencement of dramatic melting over nearly the entire Greenland ice cap, including at the highest elevations of this land mass.
On September 7, 2012, the U.S. and Canada amended their bilateral agreement concerning environmental protection of the Great Lakes. This is the third time the 1978 agreement has been amended with the previous amendments being made in 1983 and 1987. EPA’s website describes the amendments in the following terms: “The updated Agreement facilitates United States and Canadian action on threats to Great Lakes water quality and includes measures to prevent ecological harm. New provisions address the nearshore environment, aquatic invasive species, habitat degradation, and the effects of climate change. It also supports continued work on existing threats to people's health and the environment in the Great Lakes basin such as harmful algae, toxic chemicals, and discharges from vessels.” A copy of the amended agreement is available online at: http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf
In his new book The Silent Epidemic: Coal and the Hidden Threat to Health, which is being published this month by MIT Press, Professor Alan H. Lockwood of the University of Buffalo notes that the Clean Air Act has prevented more than 180,000 deaths per year, a number that may increase by 2020 to 230,000 avoided deaths per year. This will produce an estimated $22 trillion in net benefits, a number that is more than 40 times greater than estimates of compliance costs. Lockwood estimates that this has saved the federal government so much in federally-funded health costs that the feds could have paid for all compliance costs and still have come out ahead. A summary of the study is available online at: http://www.theatlantic.com/health/archive/2012/09/how-the-clean-air-act-has-saved-22-trillion-in-health-care-costs/262071/
On Tuesday September 4 I presented a two and a half hour lecture to a group of twenty judges from the Intermediate People’s Court of Nanjing Province, China. The judges are in the U.S. on a training program sponsored by the Chinese government and the Maryland China Initiative that is based at the University of Maryland at College Park. The judges were a truly exceptional group who asked some of the best questions I have ever received from a visiting foreign delegation. We had a lively discussion of how China can improve its environmental laws, the importance of citizen suits, and political pressure as a defense tactic.
On Thursday September 6 I presented a paper on the common law of interstate nuisance in the wake of the Supreme Court’s 2011 American Electric Power decision at the first Legal Theory Workshop of the year at Maryland. I greatly appreciated the comments of my colleagues on the paper. The paper, entitled “Of Coal, Climate and Carp: Reconsidering the Federal Common Law of Interstate Nuisance,” focuses on North Carolina’s state common law nuisance litigation against the TVA’s upwind coal-fired powerplants, the Supreme Court’s decision in American Electric Power v. Connecticut, and efforts to use federal common law to stop the spread of invasive species of Asian carp to the Great Lakes.
On Thursday night I went with Maryland Dean Phoebe Haddon, Maryland Professor Bob Condlin and Georgetown Professor Phil Schrag to a sold-out Camden Yards for the most important baseball game of the year for the Baltimore Orioles. Until baseball came to Washington, D.C. in 2005, I had been an Orioles season ticket holder for nearly 25 years and a Yankee fan for more than four decades. I then became a Washington Nationals season ticket holder (since I live in D.C.) and a passionate fan of the Nats. The Orioles defeated the Yankees 10-6 by hitting six home runs in the game (incredibly a feat the Nats accomplished at home for the first two times on Tuesday and Wednesday). The victory tied the Os with the Yankees for first place in the American League East. After seven years without a winning record, this has been a dream season in which the Nats currently have the best record in all baseball with less than four weeks left in the season. A beltway World Series next month between the Nats and the Orioles would be a cherished dream to baseball fans in the Baltimore/Washington area.
Sunday, September 2, 2012
U.S. Raises Fuel Economy Standards, Belo Monte Construction Resumes, Romney Attacks Obama on Climate Change, EDF Denied Nuclear License (by Bob Percival)
Last week the U.S. Environmental Protection Agency (EPA) and the National Highway Transportation Safety Administration (NHTSA) adopted final rules nearly doubling the fuel economy standard for new cars and trucks sold between 2017 and 2025. The new standard will require these vehicles to achieve a corporate average fuel economy of 54.5 miles per gallon. This brings the U.S. more in line with tough fuel economy standards in the European Union and China, which will remain slightly more stringent than standards in the U.S. The new U.S. standards are projected to reduce U.S. consumption of oil by two million barrels per day and to reduce emissions of greenhouse gases by the equivalent of one full year of emissions. The standards are expected to raise the average cost of new vehicles by $1,800 per vehicle, a cost quickly offset by the savings in fuel costs. While auto dealers and some Republican politicians criticized the new standards, they previously had been endorsed by 13 major automakers, though Volkswagen complained that the rules on fuel economy for light trucks created an unfair advantage for U.S. manufacturers.
Last week the Supreme Court of Brazil lifted a lower court order that had halted construction on the 11,000MW Belo Monte dam project on the Xingu River, an Amazon tributary. The lower court had ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project (see August 19, 2012 blog post). The Brazilian high court noted that its decision was preliminary and could be revised after a “more detailed analysis of the merit of the case.” The Brazilian government hailed the ruling, maintaining that it avoids “major and irreparable damage to the economy, to public property and to the country’s energy policy.”
Near the conclusion of his acceptance speech at the Republican National Convention, nominee Mitt Romney stated: “President Obama promised to begin to slow the rise of the oceans and heal the planet. MY promise...is to help you and your family.” Particularly now that the deleterious effects of global warming and climate change already have become manifest, it is hard to see why healing the planet does not also help “you and your family.”
The Atomic Safety and Licensing Board of the U.S. Nuclear Regulatory Commission (NRC) has denied an application by Electricity de France (EDF) to build a new nuclear reactor at Calvert Cliffs on the western shore of the Chesapeake Bay in Maryland. The reason for the denial is that existing regulations bar foreign companies from controlling U.S. nuclear power plants. If EDF finds a U.S. partner for the project within 60 days it may move the NRC to reopen the licensing proceeding. EDF’s failure to find a U.S. partner is widely viewed as a result of falling natural gas prices that have made it far more economic to invest in gas-fired power plants. Ed Crooks, America Denies EDF Nuclear Reactor License, Financial Times, Sept. 1/2, 2012, at 8.
Last week the Supreme Court of Brazil lifted a lower court order that had halted construction on the 11,000MW Belo Monte dam project on the Xingu River, an Amazon tributary. The lower court had ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project (see August 19, 2012 blog post). The Brazilian high court noted that its decision was preliminary and could be revised after a “more detailed analysis of the merit of the case.” The Brazilian government hailed the ruling, maintaining that it avoids “major and irreparable damage to the economy, to public property and to the country’s energy policy.”
Near the conclusion of his acceptance speech at the Republican National Convention, nominee Mitt Romney stated: “President Obama promised to begin to slow the rise of the oceans and heal the planet. MY promise...is to help you and your family.” Particularly now that the deleterious effects of global warming and climate change already have become manifest, it is hard to see why healing the planet does not also help “you and your family.”
The Atomic Safety and Licensing Board of the U.S. Nuclear Regulatory Commission (NRC) has denied an application by Electricity de France (EDF) to build a new nuclear reactor at Calvert Cliffs on the western shore of the Chesapeake Bay in Maryland. The reason for the denial is that existing regulations bar foreign companies from controlling U.S. nuclear power plants. If EDF finds a U.S. partner for the project within 60 days it may move the NRC to reopen the licensing proceeding. EDF’s failure to find a U.S. partner is widely viewed as a result of falling natural gas prices that have made it far more economic to invest in gas-fired power plants. Ed Crooks, America Denies EDF Nuclear Reactor License, Financial Times, Sept. 1/2, 2012, at 8.
Sunday, August 26, 2012
Dodd-Frank Regs Issued, EPA Air Transport Rule Struck Down, Auditor Reports Foxconn Progress, Australia & U.S. Courts Diverge on Tobacco Labeling (by Bob Percival)
On Wednesday August 22 the U.S. Securities and Exchange Commission (SEC) approved regulations to implement the conflict minerals provisions of § 1502 and the payment to foreign government provisions of § 1504 of the Dodd-Frank Wall Street FInancial Reform Act. The conflict minerals regulations, which were adopted by a 3-2 vote, require companies using certain minerals that have helped fund rebel groups in the Congo to describe the “due diligence” they undertook to determine the actual source of such minerals. They provide companies with a two-year grace period during which they may report that they use minerals that are “conflict undeterminable”. By requiring greater focus on where commodities used by major companies come from, these rules eventually could spur corporations to devote more attention to greening their supply chains.
The § 1504 rules require oil, gas and mining companies to disclose payments made to foreign governments. The extractive industries lobbied hard to forestall the regulations, but the SEC commissioners ultimately approved them on a 2-1 vote with two commissioners recusing themselves. The companies actually proposed what opponents dubbed the “dictator’s veto” that would have exempted reporting if the government that received the payments objected. The SEC did not adopt this proposal. Noting that reporting of payments to foreign governments has been rare, Transparency International hailed the new regulations. The European Union is considering adopting similar regulations. A vote is likely to be held in the European Parliament next month. For a powerful op-ed supporting disclosure by the former head of Libya’s national oil company, see Najwa al-Beshti, “A Libyan’s Plea to the S.E.C. on Oil Industry Transparency,” New York Times, Aug. 17, 2012, online at: http://www.nytimes.com/2012/08/18/opinion/a-libyans-plea-to-the-sec-on-oil-industry-rules.html
By a 2-1 vote the U.S. Court of Appeals for the D.C. Circuit again struck down EPA’s long-running efforts to regulate transboundary air pollution. The decision in EME Homer City Generation, L.P. v. EPA struck down the Cross-State Air Pollution Rule (CSAR) that EPA promulgated in August 2011 to replace the Clean Air Interstate Rule (CAIR) that previously had been struck down by the Court. The CSAR, referred to by the court as the Transport Rule, would have restricted emissions of sulfur dioxide and nitrogen oxides primarily from coal-fired power plants in 28 states, preventing as many as 34,000 deaths. Because the decision means that many coal-fired power plants that were slated to close in the near future may have their lives prolonged it sparked a rally in the stock market in companies that produce coal. The court majority faulted EPA for not calculating more precisely exactly how much each upwind state contributes to non-attainment in downwind states. EPA instead had calculated emissions floors that would avoid transboundary interference, but the court majority feared this could lead to some states having to control pollution more than absolutely necessary.
The Fair Labor Association, which has conducted an independent audit of Apple’s supply chain, reported last week that Apple and its largest supplier Foxconn have improved working conditions in its Chinese plants. Working hours have been reduced from 80 hours per week to between 48 and 60 hours per week and the companies generally are carrying out commitments made in response to an earlier audit.
Less than two weeks after Australia’s high court upheld Australia’s regulations requiring graphic warning labels on tobacco products, a U.S. court has invalidated similar regulations issued by the U.S. Food and Drug Administration (FDA). On August 24, the U.S. Court of Appeals for the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA regulations, which were mandated by Congress in the Family Smoking Prevention and Tobacco Control Act, violated the companies’ First Amerndment free speech rights.
On Friday August 24 Maryland’s Environmental Law Program made its annual summer outing to Camden Yards. Environmental Clinic Director Prof. Jane Barrett, Prof. Mike Pappas and his wife Tanya, Program Managing Director Bill Piermattei, clinic fellows, and summer research assistants attended the game between the Orioles and the Toronto BLue Jays. Oriole designated hitter Chris Davis homered in each of his first three at bats, powering the Os to a 6-4 victory.
Photos of my recent trip to China with students from my class in Comparative China/U.S. Environmental Law have been posted in a new “Photo Albums” section of my parallel website at: globalenvironmentallaw.com. Simply click on the “Photo Albums” link at the top of the page on the website. On Tuesday August 21 Aspen Publishers released my 2012-13 Environmental Law: Statutory and Case Supplement. It contains not only an updated version of all the major federal environmental statutes, but also key recent environmental decisions by the U.S. Supreme Court and the D.C. Circuit’s June 26 decision upholding EPA’s regulation of greenhouse gas emissions.
The § 1504 rules require oil, gas and mining companies to disclose payments made to foreign governments. The extractive industries lobbied hard to forestall the regulations, but the SEC commissioners ultimately approved them on a 2-1 vote with two commissioners recusing themselves. The companies actually proposed what opponents dubbed the “dictator’s veto” that would have exempted reporting if the government that received the payments objected. The SEC did not adopt this proposal. Noting that reporting of payments to foreign governments has been rare, Transparency International hailed the new regulations. The European Union is considering adopting similar regulations. A vote is likely to be held in the European Parliament next month. For a powerful op-ed supporting disclosure by the former head of Libya’s national oil company, see Najwa al-Beshti, “A Libyan’s Plea to the S.E.C. on Oil Industry Transparency,” New York Times, Aug. 17, 2012, online at: http://www.nytimes.com/2012/08/18/opinion/a-libyans-plea-to-the-sec-on-oil-industry-rules.html
By a 2-1 vote the U.S. Court of Appeals for the D.C. Circuit again struck down EPA’s long-running efforts to regulate transboundary air pollution. The decision in EME Homer City Generation, L.P. v. EPA struck down the Cross-State Air Pollution Rule (CSAR) that EPA promulgated in August 2011 to replace the Clean Air Interstate Rule (CAIR) that previously had been struck down by the Court. The CSAR, referred to by the court as the Transport Rule, would have restricted emissions of sulfur dioxide and nitrogen oxides primarily from coal-fired power plants in 28 states, preventing as many as 34,000 deaths. Because the decision means that many coal-fired power plants that were slated to close in the near future may have their lives prolonged it sparked a rally in the stock market in companies that produce coal. The court majority faulted EPA for not calculating more precisely exactly how much each upwind state contributes to non-attainment in downwind states. EPA instead had calculated emissions floors that would avoid transboundary interference, but the court majority feared this could lead to some states having to control pollution more than absolutely necessary.
The Fair Labor Association, which has conducted an independent audit of Apple’s supply chain, reported last week that Apple and its largest supplier Foxconn have improved working conditions in its Chinese plants. Working hours have been reduced from 80 hours per week to between 48 and 60 hours per week and the companies generally are carrying out commitments made in response to an earlier audit.
Less than two weeks after Australia’s high court upheld Australia’s regulations requiring graphic warning labels on tobacco products, a U.S. court has invalidated similar regulations issued by the U.S. Food and Drug Administration (FDA). On August 24, the U.S. Court of Appeals for the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA regulations, which were mandated by Congress in the Family Smoking Prevention and Tobacco Control Act, violated the companies’ First Amerndment free speech rights.
On Friday August 24 Maryland’s Environmental Law Program made its annual summer outing to Camden Yards. Environmental Clinic Director Prof. Jane Barrett, Prof. Mike Pappas and his wife Tanya, Program Managing Director Bill Piermattei, clinic fellows, and summer research assistants attended the game between the Orioles and the Toronto BLue Jays. Oriole designated hitter Chris Davis homered in each of his first three at bats, powering the Os to a 6-4 victory.
Photos of my recent trip to China with students from my class in Comparative China/U.S. Environmental Law have been posted in a new “Photo Albums” section of my parallel website at: globalenvironmentallaw.com. Simply click on the “Photo Albums” link at the top of the page on the website. On Tuesday August 21 Aspen Publishers released my 2012-13 Environmental Law: Statutory and Case Supplement. It contains not only an updated version of all the major federal environmental statutes, but also key recent environmental decisions by the U.S. Supreme Court and the D.C. Circuit’s June 26 decision upholding EPA’s regulation of greenhouse gas emissions.
Tuesday, August 21, 2012
China Trip, U.S. GHG Emissions Plunge, Arctic Drilling, China Auto Recall, Belo Monte Dam Halted, Gibson Guitar Settlement (by Bob Percival)
I returned from China on Thursday night after completing a terrific environmental field trip with students from my Vermont summer course in Comparative China/U.S. Environmental Law. On Tuesday August 14 we visited the offices of the Allbright law firm in the Citigroup Tower across the Huangpo River in Pudong. The firm has more than 400 lawyers and offices in Shanghai, Beijing, Hangzhou, Nanjing, Shenzhen, and Suzhou. It is the largest Chinese law firm in the country. Dr. Ke Chen, Mr. Jie Zhu and two associates met with us to discuss the work of the firm. Dr. Chen made a fascinating presentation about the challenges of practicing law in China. He noted that one of his most significant accomplishments has been to arrange the financing for the new generation of nuclear power plants that are being built in China. The plants use a new reactor designed by Westinghouse that is supposed to be much safer than previous designs (“the robot shoots itself” is how he described the automatic shutdown that occurs when unusual events occur).
Following our meeting, Mr. Zhu and the associates took us to lunch in the canteen in the basement of their building. After lunch we walked a few blocks to the World FInancial Center, the tallest building in China for now. The students and I went to the 101st floor observation deck where we had a spectacular view of Shanghai.
On Wednesday August 15 we visited the Shanghai offices of Roots and Shoots, the environmental organization founded by Jane Goodall. Roots and Shoots Shanghai is one of the few non-profit organizations officially registered with the Chinese government. Zhenxi Zhong, the office’s executive director, gave us a terrific presentation about the group’s work promoting environmental education in China. The group recently completed a project to plant 1 million trees in Inner Mongolia two years ahead of schedule.
We then traveled to Zhongshan Park where we were hosted for lunch at the Royal Garden Restaurant by faculty from the East China University of Political Science and Law. Joining us for lunch were Dr. Gengyun Gu, the vice rector of the university, Guoxing Xiao, who teaches energy law, Prof. Yang Qu, and two students. Following lunch we took a brief tour of the university campus, which adjoins Zhongshan Park. We then went to the Shanghai government’s Energy Conservation Center where we saw demonstrations of new technologies to use energy more efficiently. A photo album from our trip will be added to this website shortly.
The U.S. Energy Information Administration reported last week that greenhouse gas (GHG) emissions in the U.S. plunged by 5.8% in 2009 below 2008 levels from 6,983 to 6,576 million metric tons carbon dioxide equivalent. This was the largest annual drop since GHG emissions have been measured beginning in 1990. The agency gave three reasons for the decline: “an economy in recession, a particularly hard-hit energy-intensive industries sector, and a large drop in the price of natural gas that caused fuel switching away from coal to natural gas in the electric power sector.” A copy of the report is available online at: http://www.eia.gov/environment/emissions/ghg_report/
Last week Greenpeace and the Worldwide Fund for Nature issued a report warning that drilling for oil in the Pechora Sea in the Russian arctic could have disastrous consequences due to the inability to respond effectively to an oil spill in such a remote region. Russia’s state-owned oil company Gazprom has begun drilling in the area from its Prirazlomnaya offshore platform. Shell meanwhile continues to face delays in its efforts to commence drilling in the Arctic off the northern coast of Alaska.
China’s two largest exporters of automobiles - Chery Automobile and Great Wall Motor - were forced to recall most of their vehicles sold in Australia because of the discovery of asbestos contamination in the cars. Asbestos use has been banned in Australia since 2004, but it is still permitted in China.
The long-running battle over construction of the $17 billion Belo Monte dam on the Xingu River, an Amazon tributary in Brazil, entered a new phase last week when a Brazilian court ordered that construction work be suspended. The court ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project.
Two weeks ago the Gibson Guitar Corp. agreed to settle charges that it had illegally imported wood from Madagascar and India in violation of the Lacey Act. Gibson agreed to pay a $300,000 penalty and to make a $50,000 community service payment to the U.S. National Fish and Wildlife Foundation in order to avoid prosecution for the violations. The company also withdrew its claim for return of $262,000 of wood seized by federal authorities during a raid last year on the company’s factories in Tennessee. The Lacey Act makes it a federal crime to import wood taken in violation of the laws of the country of origin.
Following our meeting, Mr. Zhu and the associates took us to lunch in the canteen in the basement of their building. After lunch we walked a few blocks to the World FInancial Center, the tallest building in China for now. The students and I went to the 101st floor observation deck where we had a spectacular view of Shanghai.
On Wednesday August 15 we visited the Shanghai offices of Roots and Shoots, the environmental organization founded by Jane Goodall. Roots and Shoots Shanghai is one of the few non-profit organizations officially registered with the Chinese government. Zhenxi Zhong, the office’s executive director, gave us a terrific presentation about the group’s work promoting environmental education in China. The group recently completed a project to plant 1 million trees in Inner Mongolia two years ahead of schedule.
We then traveled to Zhongshan Park where we were hosted for lunch at the Royal Garden Restaurant by faculty from the East China University of Political Science and Law. Joining us for lunch were Dr. Gengyun Gu, the vice rector of the university, Guoxing Xiao, who teaches energy law, Prof. Yang Qu, and two students. Following lunch we took a brief tour of the university campus, which adjoins Zhongshan Park. We then went to the Shanghai government’s Energy Conservation Center where we saw demonstrations of new technologies to use energy more efficiently. A photo album from our trip will be added to this website shortly.
The U.S. Energy Information Administration reported last week that greenhouse gas (GHG) emissions in the U.S. plunged by 5.8% in 2009 below 2008 levels from 6,983 to 6,576 million metric tons carbon dioxide equivalent. This was the largest annual drop since GHG emissions have been measured beginning in 1990. The agency gave three reasons for the decline: “an economy in recession, a particularly hard-hit energy-intensive industries sector, and a large drop in the price of natural gas that caused fuel switching away from coal to natural gas in the electric power sector.” A copy of the report is available online at: http://www.eia.gov/environment/emissions/ghg_report/
Last week Greenpeace and the Worldwide Fund for Nature issued a report warning that drilling for oil in the Pechora Sea in the Russian arctic could have disastrous consequences due to the inability to respond effectively to an oil spill in such a remote region. Russia’s state-owned oil company Gazprom has begun drilling in the area from its Prirazlomnaya offshore platform. Shell meanwhile continues to face delays in its efforts to commence drilling in the Arctic off the northern coast of Alaska.
China’s two largest exporters of automobiles - Chery Automobile and Great Wall Motor - were forced to recall most of their vehicles sold in Australia because of the discovery of asbestos contamination in the cars. Asbestos use has been banned in Australia since 2004, but it is still permitted in China.
The long-running battle over construction of the $17 billion Belo Monte dam on the Xingu River, an Amazon tributary in Brazil, entered a new phase last week when a Brazilian court ordered that construction work be suspended. The court ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project.
Two weeks ago the Gibson Guitar Corp. agreed to settle charges that it had illegally imported wood from Madagascar and India in violation of the Lacey Act. Gibson agreed to pay a $300,000 penalty and to make a $50,000 community service payment to the U.S. National Fish and Wildlife Foundation in order to avoid prosecution for the violations. The company also withdrew its claim for return of $262,000 of wood seized by federal authorities during a raid last year on the company’s factories in Tennessee. The Lacey Act makes it a federal crime to import wood taken in violation of the laws of the country of origin.
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