10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, February 26, 2012

BP Trial Delayed, U.S.-Mexico Drilling Accord, EU Airline Cap & Trade Opposed, PPL Montana Decision (by Bob Percival)

Tomorrow was supposed to have been the start of of the trial of claims for compensation for the 2010 Gulf oil spill in a federal courtroom in New Orleans. However, late Sunday the trial of the more than 500 cases that have been consolidated before federal district judge Carl J. Barbier was postponed for one week to facilitate continuing settlement discussions. The defendants include BP, Transocean (owner of the Deepwater Horizon oil drilling platform), Halliburton (which poured the concrete that lined the well), and Cameron International (which made the blowout preventer). Plaintiffs include the U.S. government, the states of Louisiana, Alabama and Mississippi, and more than 100,000 private parties. BP estimates that the spill will cost it $37.2 billion, $26.6 billion of which it already has paid. It estimates that its legal fees and administrative costs incurred to operate the Gulf Claims Facility will total $1.73 billion. Ed Crooks, BP Braced for $1.73bn Legal Bill as Deepwater Horizon Trial Begins, Financial Times, Feb. 25-26, 2012, at 10. BP’s estimates apparently assume that it will not be found grossly negligent, which could subject it to an additional $14 billion in penalties.

Settlements covering significant parts of the claims are expected. Last week Moex Offshore, which owned a 10% interest in the Macondo well, but did not operate it, settled with the federal and state governments for $90 million, including $70 million in civil penalties. Last week I was interviewed about the upcoming trial by Reuters (http://www.chicagotribune.com/business/sns-rt-us-bp-trialtre81m1w5-20120223,0,4587470.story) and the BBC. On Friday I taped an interview with Bloomberg TV at their DC studios, which will air tomorrow morning. Tomorrow I am doing TV interviews about the trial on Canada’s Business News Network and Al Jazeera’s “Inside Story” program.

On February 21, the U.S. and Mexico agreed to coordinate their supervision of deepwater oil drilling in area of the Gulf of Mexico along the two nations’ maritime border. The Transboundary Agreement, signed in Los Cabos by U.S. Secretary of State Hillary Clinton and Mexican Foreign Minister Patricia Espinosa, provides for joint inspections by the two countries of oil rigs in the area and measures to coordinate compliance with both countries’ regulations. The agreement may help to address concerns voiced the week before by Mexican oil regulators that their National Hydrocarbon Commission lacks resources to provide effective oversight over deepwater drilling. (See February 19, 2012 blog post). The agreement also frees up 1.5 million previously-disputed acres of offshore territory to drilling by the U.S. John M. Broder & Clifford Krauss, U.S. in Accord With Mexico on Drilling, N.Y. Times, Feb. 21, 2012, at A4.

Last week representatives of 23 countries opposed to the EU’s cap-and-trade program for emissions of greenhouse gases (GHGs) from airlines met in Moscow for two days to coordinate their opposition. They agreed to consider eight measures to retaliate against the EU for applying its program to all flights to and from the EU that are not covered by other GHG controls. These measures include taxes on EU airlines and the suspension of talks to broaden EU aviation rights. The group retreated from proposals to reopen existing trade agreements with the EU. EU Climate Commissioner Connie Hedegaard chided the countries by stating, “Unfortunately, our question for Moscow meeting participants remains unanswered: what’s your concrete, constructive, alternative?” Pilita Clark & Catherine Belton, Russia Threatens to Limit EU Flights Over Siberia, Financial Times, Feb. 22, 2012.

On February 22 the U.S. Supreme Court unanimously reversed a decision by the Montana Supreme Court which had held that the State of Montana owns the riverbeds under multiple hydropower facilities on the upper Missouri, Madison, and Clark Fork rivers. Under the equal footing doctrine states acquire title to the beds of rivers that were navigable in fact at the time of statehood.  In a decision written by Justice Kennedy the Court found that the Montana court had erred in how it determined navigability for title purposes. The Montana court had held that the need to make portages did not necessarily defeat navigability. The U.S. Supreme Court ruled that evidence that portages were necessary is sufficient in most cases to defeat a finding of navigability for title purposes.  This decision is unlikely to have significant environmental consequences because it addresses only the test of navigability for title purposes and not the test of navigability for purposes of determining the reach of federal regulatory power under the Clean Water Act.  The Court rejected Montana’s argument that denying the State title to the riverbeds would undermine the public trust doctrine, noting that the latter “remains a matter of state law,” subject to federal regulatory power. Thus, states “retain residual power to determine the scope of the public trust over waters within their borders.”

Monday, February 20, 2012

Apple Audit Begins, Black Carbon Initiative, Space Pollution, Mexico Deepwater Drilling, W&L Symposium (by Bob Percival)

Last week Apple announced that the Fair Labor Association (FLA) had begun an audit of Apple’s suppliers in China to assess working conditions at their factories. The FLA is an independent organization founded in 1999 after concerns that Nike’s products were being produced in foreign sweatshops. The FLA’s membership now includes 34 companies and nearly 200 universities. Auret van Heerdan, president of the FLA, caused controversy when he immediately praised Apply supplier Foxconn for their “first-class” facilities before the audit was even completed. Steven Greenhouse, Early Praise in Inspection at Foxconn Brings Doubt, N.Y. Times, Feb. 17, 2012, at B6. The FLA reportedly sent a team of 30 auditors to Foxconn and pledged to interview tens of thousands of workers. Foxconn last week announced substantial (ranging up to 25%) increases in hourly pay at its facilities, reflecting the general tightening in the Chinese labor market.

On February 16 a new initiative to reduce black carbon and other potent, but short-lived greenhouse gases, including methane and hydrofluorocarbons, was announced by officials from the U.S., Bangladesh, Canada, Ghana, Mexico, Sweden and the UN Environment Program. The U.S. State Department pledged $12 million to the initiative and Canada pledged $3 million. The initiative will promote voluntary efforts to shift to cleaner technology, such as replacing cookstoves with more efficient models, methane capture technology, and the installation of filters on diesel engines. John M. Broder, U.S. Pushes to Cut Emissions of Some Pollutants that Hasten Climate Change, N.Y. Times, Feb. 15, 2012.

Swiss government officials last week announced plans to produce the first “janitor satellite,” called CleanSpace One, to retrieve two orbiting Swiss satellites as a first step in reducing space junk. It is estimated that more than 500,000 pieces of space debris are now in orbit and the risk of collisions with functioning satellites is increasing rapidly. The Swiss satellite, which could serve as a model for future efforts to clean up space, will cost $11 million. It is being built at the Swiss Federal Institute for Technology in Lausanne and could be launched in three years.

A Japanese Parliamentary inquiry was told last week of significant safety lapses in the regulation of nuclear power in Japan prior to the Fukushima Daiichi accident last year. A panel of nuclear safety experts reported that, prior to the accident, no serious consideration had been given to the consequences of losing electric power at a Japanese nuclear power plant because the Japanese grid was deemed far more reliable than foreign grids. Scant consideration was given to the possibility of large earthquakes off the coast, lax safety inspections were conducted, and the government was more interested in promoting nuclear power than ensuring its safety. Hiroko Tabuchi, Japan Ignored Nuclear Risks, Official Says, N.Y. Times, Feb. 16, 2012, at A13.

Even though OPEC and the International Energy Agency recently have reduced their forecasts for global oil demand in 2012, the price of Brent crude hit nearly $120/barrel last week. Conflict in Sudan and fears of other supply disruptions are contributing to the price rise, as is strong demand from China. Guy Chazan, Oil Prices Resistant to Demand Doubts, Financial Times, Feb. 16, 2012, at 23. High global oil prices seem to have contributed to the recent upswing in manufacturing jobs in the U.S. as the cost of transporting products from abroad has risen.

Mexico’s top oil regulator expressed alarm last week over plans by the national oil company, PetrĂ³leos Mexicanos (PEMEX) to drill two ultra-deepwater oil wells in the Gulf of Mexico, including one at a depth of 9,000 feet. Juan Carlos Zepeda, director of Mexico’s National Hydrocarbon Commission, said his agency lacks both the resources and experience to ensure the safety of drilling offshore wells at such depths, nearly twice as deep as the Macondo well that blew out in April 2010. Officials at PEMEX rejected the criticism. Angel Gonzalez & Laurence Iliff, Mexico Oil Watchdog Sounds Alarm, Feb. 15, 2012, at A10.

Documents prepared for a board meeting of the Heartland Institute, a free market group that opposes controls on greenhouse gases, were leaked to the web. The New York Time reported that the documents reveal an upcoming campaign to promote a high school curriculum sowing doubt concerning the science behind climate change. Justin Gillis & Leslie Kaufman, In Documents, a Plan to Discredit Climate Teaching, N.Y. Times, Feb. 16, 2012, at A21. While maintaining that some of the documents were forged, the Heartland Institute declared that the person responsible for the leak should be criminally prosecuted.

On Thursday I traveled to Lexington, Virginia for a Friday symposium on “Reclaiming Environmental Federalism” at the Washington & Lee School of Law. On the opening panel with me were former EPA general counsel Roger Martella, Emory law professor Bill Buzbee, Tulane law professor Amy Stein, and GW professor Rob Glicksman. Martella discussed some federalism controversies that arose during his tenure at EPA. I reviewed the history of disputes between states over transboundary pollution. Stein analyzed disputes involving the siting of energy facilities and transmission lines. Buzbee discussed federalism theory and Glicksman proposed new agency organizations to promote smoother and more effective federal-state relations. Washington & Lee has installed solar panels on the roof of their law school to provide the school’s electricity. Dr. Tony Smith, CEO of Secure Futures, LLP, which installed the panels, spoke about efforts by Dominion Resources to block the project despite the utility’s advertised commitment to renewable energy.

Monday, February 13, 2012

Svitlana Kravchenko, China Fights EU Airline ETS, Satellite PM2.5 Estimates, NRC Licenses New Nuclear Plants, Spain Solar Subsidies (by Bob Percival)

The global environmental law community is mourning the death on Friday February 10 of Professor Svitlana Kravchenko of the University of Oregon School of Law. Professor Kravchenko, who was married to Oregon environmental law professor John Bonine, was the Director of the LL.M. program in Environmental and Natural Resources Law. She taught for 25 years at Lviv National University in her home country Ukraine before moving to Oregon eight years ago. Professor Kravchenko was the Vice Chair of the Aarhus Convention’s Compliance Committee and a tireless advocate for using human rights to promote environmental protection. In 2011 she was awarded the senior scholarship prize for outstanding scholarly achievements by the IUCN Academy of Environmental Law. Professor Nick Robinson of Pace has shared a moving remembrance of Professor Kravenchenko that I have posted on my globalenvironmentallaw.com website (see link on Feb. 13 blog entry there).

The government of China announced last week that it had prohibited Chinese airlines from complying with the European Union’s regulations controlling emissions of greenhouse gases (GHGs). The EU regulations, which subject all airlines flying to and from the EU to the EU’s emissions trading scheme (ETS) for GHGs, took effect on January 1. In December the European Court of Justice rejected a legal challenge to the regulations brought by China and other non-EU countries. The EU has reiterated its determination to proceed with the regulations, which exempt flights already subjected to their country of origin’s GHG controls. Thus, other than stopping flights to EU countries, the only way countries can opt out of the regulations is by adopting their own GHG controls for airlines. Representatives from 26 nations whose airlines fly to the EU plan to meet in Moscow on February 21 to discuss next steps. The International Civil Aviation Organization (ICAO), which had rejected the notion of negotiating a global agreement to control GHG emissions from airlines is now considering several options, including a carbon tax or global cap-and-trade scheme for airlines. Trouble in the Air, Double on the Ground, The Economist, Feb. 11, 2012, at 66.

Last week a prominent German energy executive Johannes Teyssen, CEO of Eon, declared the EU’s ETS “dead” and a “bust.” The president of Europe’s equivalent of the Chamber of Commerce, Philippe de Buck, president of Business Europe, blasted proposals to withdraw more than one billion surplus carbon permits from the EU ETS, a move intended to shore up their sagging prices. Carbon permits are now selling for roughly 7 Euros per ton (a little more than $9/ton), far less than anticipated. Joshua Chaffin, Business Warns Against EU Moves in Carbon Market, Financial Times, Feb. 8, 2012.

A new study for the Economist by Yale researcher Angel Hsu, working in collaboration with scientists from Columbia University and Batelle Memorial Institute, uses satellite data to estimate levels of air pollution over China. By measuring how much light is blocked by pollution, the study estimates levels of small particulates less than 2.5 microns in diameter (PM2.5). It finds that PM2.5 levels exceed the World Health Organization guideline of 10 micrograms per cubic meter of air in 20 of China’s 22 provinces. Levels of PM2.5 were estimated to be 35 in Beijing and more than 50 in Shandong and Henan. Cleaning the Air, The Economist, Feb. 11, 2012, at 80. The researchers also found that emissions from aviation contribute to 8,000 premature deaths annually throughout the world, including 3,500 in China.

On February 9 the U.S. Nuclear Regulatory Commission granted the first licenses to construct and operate new nuclear power plants since 1978. Southern Company won the licenses to add the reactors to its Vogtle plant near Waynesboro, Georgia. The vote was 4-1 with NRC Chairman Gregory Jaczko dissenting on the ground that the licenses should include requirements that the plants also comply with future safety regulations that are likely to be adopted to respond to the Fukushima Daiichi accident in Japan. Construction of the reactors is estimated to cost $14 billion. Ryan Tracy & Cassandra Sweet, Agency Clears Reactors, Wall St. J., Feb. 10, 2012, at B4. Japan has begun awarding $13 billion in contracts to decontaminate villages exposed to radioactive fallout from the Fukushima Daiichi accident without any clear guidelines for how the decontamination is to be conducted. Hiroko Tabuchi, A Confused Nuclear Cleanup, N.Y. Times, Deb. 11, 2012, at B1.

Two weeks ago the government of Spain announced that it would halt temporarily subsidies for new renewable energy projects due to the subsidies having been set at levels that were far too generous. As a result of the subsidies, solar power now accounts for 13% of the cost of Spain’s electricity, but only 3% of the country’s electrical supply. Ignacio Galan, chairman of Iberdrola, Spain’s largest wind farm owner, has praised the move because it does not retroactively reduce the subsidies. The Spanish government, however, has not ruled out reducing subsidies retroactively. Pilita Clark, Iberdola Backs Freeze on Subsidies, Financial Times, Feb. 13, 2012, at 19.

On Friday Feb. 10, Oxfam International held a protest across from the offices of the U.S. Securities and Exchange Commission (SEC). Oxfam’s global Extractive Industries Transparency Initiative is protesting the oil industry’s opposition to the SEC implementing a provision of the Frank-Dodd Wall Street Financial Reform Act that would require oil companies to disclose all their payments to foreign governments. Oxfam argues that companies like ExxonMobil and Chevron purport to support transparency, but then unleash their lobbyists and lawyers to threaten to sue the SEC if it issues the rules. See Ian Gary, The Transparent Hypocrisy of Big Oil, Feb. 9, 2012 on the Oxfam website. Organic farmers from Massachusetts, Mississippi, and South Dakota rallied last week in front of the federal courthouse in Manhattan where an important lawsuit is being heard. The Organic Seed Growers Trade Association is suing Monsanto claiming that it is impossible to prevent genetically modified crops from contaminating organic crops with transgenic seed. Contamination has become so common that the U.S. Department of Agriculture has ruled that organic crops will not lose their organic status if they contain no more than 0.9% transgenic content. Julia Moskin, Modified Crops Tap a Wellspring of Protest, N.Y. Times, Feb. 8, 2012, at D3.

Sunday, February 5, 2012

Chevron Rules Out Apology, China Cadmium Spill, WTO Rules Against China Mineral Export Tax, Malaysian Rare Earth Refinery (by Bob Percival)

On February 3 Chevron told the government of Ecuador that it did not intend to apologize for oil pollution damage in the Amazon for which it has been held liable by an Ecuadoran court. Under a judgment rendered a year ago, Chevron can reduce its liability from $18 billion to $9 billion by apologizing to the people of Ecuador for the pollution. Chevron spokesman James Craig said that an apology would be a “false admission of responsibility.”

In the wake of a cadmium spill that contaminated drinking water to millions, seven people in southern China have been fired. Two hundred miles of the Longjiang River in Guangxi Zhuang Autonomous Region were affected by the spill, which contaminated drinking water to millions. The fired officials included the head of the environmental protection board for the town of Hechi, which failed to report the spill and six officials from the Jinhe Mining Company and Hongquan Lithopone Factory, who were blamed for the spill. Andrew Jacobs, China Fires 7 Officials After Spill, New York Times, Feb. 4, 2012.

Last week an appellate body of the World Trade Organization (WTO) ruled that China’s policies to limit mineral exports, including export taxes, violated international trade rules. The case was initially brought in 2009 by the U.S., the European Union (EU), and Mexico, which challenged Chinese export taxes on bauxite, coke, zinc, fluorspar, magnesium, manganese, silicon carbide and yellow phosphorous. The complaining states believe the ruling should curb some of China’s efforts to limit exports of rare earth minerals. Joshua Chaffin & Alan Beattie, Financial Times, Jan. 31, 2012, at 6.

The world’s largest refinery for rare earth metals is about to be opened by Lynas, an Australian company, in Kuantan, Malaysia. Rare earth metals are important components of smartphones and wind turbines. Their prices soared after China slashed exports of the metals in 2010. The Malaysian refinery will generate approximately 20,000 tons per year of low-level radioactive waste. Despite protests by Malaysians, Lynas has failed to find a permanent disposal site for this waste. They plan to store it onsite for 20 years in pits lined with clay and plastic. Keith Bradshear, Rare Earth Metal Refinery Nears Approval, New York Times, Jan. 31, 2012.

On Monday evening January 30 I spoke to a graduate seminar on Environmental Reporting at Georgetown University’s main campus. The seminar is taught by Associated Press energy and environmental reporter Dina Cappiello. I spoke on what reporters should know about environmental law. On Thursday February 2 I joined John Cruden, president of the Environmental Law Institute, in reviewing the four environmental cases currently before the U.S. Supreme Court at the annual ALI/ABA conference on Environmental Law in Washington, D.C. I covered the PPL Montana and Kiobel cases while John reviewed the Sackett and Southern Union cases.