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

Monday, March 26, 2012

Wetlands Enforcement Decision, Brazil Prosecutes Chevron, NAELS Conference (by Bob Percival)

On Tuesday March 20, the U.S. Supreme Court decided Sackett v. EPA, a wetlands enforcement case. By a unanimous vote, the Justices held that the U.S. Environmental Protection Agency’s issuance of an administrative compliance order under Section 404 of the Clean Water Act is final agency action that can trigger pre-enforcement judicial review under the Administrative Procedure Act. The decision had been widely anticipated in the wake of the oral argument (see January 16, 2012 blog post). Unlike the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Clean Water Act does not contain clear language precluding pre-enforcement judicial review of compliance orders. Thus, the decision is unlikely to call into question previous lower court decisions rejecting pre-enforcement judicial review of CERCLA compliance orders. Justice Scalia’s majority opinion did not contain any invective about the § 404 program, in sharp contrast to his plurality opinion in the Court’s 2006 Rapanos decision.

In a concurring opinion, Justice Ginsburg emphasized that the Court did not decide whether the plaintiffs could challenge any more than EPA’s authority to regulate their land as wetlands. Justice Alito also filed a concurring opinion harshly attacking the §404 program and blaming Congress for being “notoriously unclear” about the reach of federal wetlands jurisdiction even though the lack of clarity is almost entirely the result of the Court’s 4-1-4 split in its Rapanos decision. The consequences of the Sackett decision may be limited in light of Justice Scalia’s suggestion at oral argument that EPA still may be able to issue non-binding compliance warnings and the fact that plaintiffs challenging an administrative compliance order will have the burden of showing that it is arbitrary and capricious.

On March 21 Brazilian authorities filed criminal charges against Transocean Ltd., Chevron Corp. and 16 of their employees for last year’s oil spill in the Frade oil field off the Brazilian coast. The government confiscated the passports of the executives to ensure that they remain in the country for prosecution. George Buck, president of Chevron’s operations in Brazil, and three of his employees also were charged with obstructions of justice and could face up to 31 years in prison. Chevron denounced the charges as “outrageous,” claiming that there is no evidence of even negligent conduct by its employees. Mathew Cowley & Daniel Gilbert, Brazil Charges Chevron, Wall St. J., March 22, 2012, at B3. The Journal article quotes me as expressing the view that Brazil is trying to send a harsh message that it will not tolerate offshore spills even as it seeks the assistance of foreign companies in developing its offshore oil reserves.

On Thursday March 22 I flew to Michigan to speak at the 25th annual conference of the National Association of Environmental Law Societies (NAELS). I was one of four people at the conference who had attended the first gathering of environmental law societies on the Michigan campus in 1988 when NAELS was founded. I then was in my first year of law teaching after having been hired by Maryland in 1987 to establish Maryland’s Environmental Law Program. At the time the conservative Federalist Society was in ascendance and I suggested that the new organization be named the “Environmentalist Society.” Instead the group chose NAELS, an acronym that has a solid ring to it. I wore the button that I had received at the first official NAELS conference, which was held the following year (1989) at the University of Colorado.

I spoke on the opening plenary panel with Richard Lazarus, Lois Schiffer, and Holly Doremus. We reflected on the changes in environmental law in the last 25 years. In my presentation I emphasized the rise of global environmental law as the most significant development in environmental law during that period. Richard Lazarus gave a great presentation noting that the last time President Obama uttered the words “climate change” in public occurred during a January 2011 White House joint press conference in response to remarks on the issue by Chinese President Hu Jintao. Pace Professor John Nolan gave a wonderful presentation on the importance of land use and energy efficiency initiatives to sustainable development. I also attended a terrific presentation on water law by Professors Reed Benson (New Mexico) and Noah Hall (Wayne St. visiting at Michigan).

On Saturday March 24 Environmental Law Institute President John Cruden gave a wonderful keynote address to the NAELS conference. He argued that environmentalists should stop grading themselves based on federal legislative activity and instead should focus on what people actually are doing. He stressed the need to improve technology for cleaning up oil spills, the importance of promoting judicial independence (he noted that ELI has just trained its 1000th judge), and why aggressive enforcement is needed to level the playing field for corporations who take the environmental laws seriously.

The Exxon Valdez, the oil tanker that leaked 11 million gallons of crude oil in Prince William Sound Alaska in March 1989, is reportedly on its way to be scrapped by ship breakers in India. The ship, which has been renamed several times in an effort to escape the spill’s stigma, is now called the Oriental Nicety. The ship recently was sold to Best Oasis, a company based in Hong Kong that is the wholly-owned subsidiary of an Indian company. Austin Baird, Infamous Exxon Valdez Appears Headed for Scrapping in India, Washington Post, March 24, 2012, at A16.

Last week a group of 35 Nigerian villages sued the Netherlands-based Royal Dutch Petroleum Company (Shell) in a British court. The plaintiffs allege that the company’s failure promptly to clean up two oil spills in the Niger Delta in 2008 destroyed both the environment and their livelihoods. Shell argues that most environmental harm in the area is caused by sabotage of pipelines. Nigeria: Villages Sue Shell Oil, N.Y. Times, March 24, 2012.

On March 23 federal district judge Amy Berman Jackson overturned EPA’s January 2011 decision to rescind a permit for the Spruce No. 1 mountaintop coal mining project by Arch Coal in West Virginia. The permit had been issued by the Bush administration in 2007, but the Obama administration EPA had determined that the project, which would bury several miles of streams, would cause unacceptable environmental damage. EPA’s decision represented only the second time in 40 years that a permit had been rescinded. Judge Jackson ruled that EPA did not have the authority to revoke the permit. John M. Broder, Court Reverses EPA on Big Mining Project, N.Y. Times, March 24, 2012.

Monday, March 19, 2012

Environmental Tour of China (by Bob Percival)

On Sunday March 18 I returned from a week and a half in China where I led a group of 38 students, alums and friends of Maryland’s Environmental Law Program on a spring break environmental tour. On Thursday March 8, I left for China with a group of 38 students, alumni, and friends of the Maryland Environmental Law Program. The trip is designed to combine visits to some of the most important tourist sites in the country with meetings with Chinese environmental students, professors and professionals. This is the third time we have done such a trip, which started in 2008 when I was teaching in Beijing on sabbatical and my Maryland students asked if they could come visit me. Each trip has been better than the preceding one and this year’s trip appears to be the best ever.

We arrived in Beijing on Friday evening March 9. Joining us in Beijing were Professor Zhang Shijun from Shandong University, who had been a visiting environmental scholar at Maryland during the 2009-2010 academic year, and Professor Erin Ryan, a former student of mine from Harvard, a Lewis & Clark environmental law professor now teaching as a Fulbright scholar at Ocean University in Qingdao. Saturday was the clearest day I had ever seen in Beijing, due largely to high winds that contributed to bitterly cold conditions. We visited Tiananmen Square, the Forbidden City and the Summer Palace. In Tiananmen Square we posed for a group photo and unveiled a banner thanking our trip organizer. This triggered a swift response from the Chinese police who thought we were engaging in some forbidden political protest at a particularly sensitive location. The confrontation was swiftly defused by the native Chinese speakers in our group who explained what the banner was about (the police ultimately did not even seize it). At the Summer Palace our group received a tai chi lesson, a welcome opportunity for us to unlimber after the long plane flight the day before.

After dinner on Saturday some of the students and I met up with Huang Jing, who had been a visiting environmental scholar at Maryland in 2010-2011, and Zhang Jingjing, the “Erin Brockovich of China,” who now works for the China office of the Public Interest Law Network. On Sunday we visited the Great Wall at Badaling. Again it was a spectacularly clear, though cold day, which made for some wonderful views from the top of the wall. We had dinner Sunday night in a hutong near the Drum and Bell Towers with the family of a military cook.

On Monday March 12 I spoke to a workshop of the All China Environment Federation (ACEF), a government-approved NGO (known as a GONGO here) comprised of environmental lawyers. ACEF was founded in 2005 and it has brought some of the most significant environmental cases on behalf of communities victimized by pollution. The focus of the workshop was oil spill law. I spoke about U.S. oil spill law, the BP spill, the litigation it has spawned and the partial settlement agreement. A lawyer for the Chinese law firm representing ConocoPhillips spoke about the offshore oil spill that occurred last summer in the Peng-Lai oil field in Bohai Bay. ACEF representatives spoke about the lawsuit they have filed on behalf of 107 fishermen affected by the spill. The Tianjin Maritime Court where the lawsuit was filed last December still has not officially accepted the case to the great frustration of the plaintiffs and the ACEF lawyers.

Our group also visited the China University of Political Science and Law (CUPL) where they toured the Center for Legal Assistance for Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China. CUPL Professor Wang Canfa, the director of CLAPV, spoke to our group about the CLAPV’s work. Teams of students from the Beijing Institute of Technology and CUPL, who will be competing later this month in the finals of the Stetson International Environmental Moot Court Competition, then did a practice round with members of our group serving as judges. One of the judges was EPA attorney Mike Walker, a long-time environmental adjunct professor at Maryland, who is traveling with our group. The group also visited the Cnetral University of Finance and Economics where Maryland has a joint exhange program in business law directed by Dan Mitterhoff. At the end of the day we all gathered at the Beijing office of DLA Piper, the world’s largest law firm, where we heard presentations from lawyers discussing the challenges of practicing law in China. Zhang Jingjing also addressed the group on public interest litigation in China. She expressed the hope of the public interest community that the National People’s Congress will amended the civil code during this session to facilitate public interest litigation.

On Tuesday March 13 we flew from Beijing to X’ian, a city in northwest China that has become a tourist attraction due to the buried terra cotta warriors. When I first visited China in 1981 only a portion of the buried warriors had been discovered and the Chinese authorities did not permit any photos of the site. Now there are two large structures covering the archaeologic sites and photos are permitted.

We spent Tuesday afternoon touring the city of X’ian including a climb to the top of the Big Wild Goose Pagoda. X’ian is in the heart of Shanxi Province where more than a quarter of China’s coal is mined, most of it for export. The coal-fired power plants in the province create highly visible pollution, which shocked some of the students and alums in our group, who had thought that the rare clear conditions in Beijing (caused by unusually high winds) indicated that China was making more progress in controlling pollution. On Wednesday March 14 we visited the site of the buried terraa cotta warriors, which is located approximately an hour east of the city of X’ian. After a raucous night in a karaoke bar in X’ian, our group left at 5:30AM on Thursday March 15 for an early morning flight to Shanghai.

After arriving at Pudong International Airport in Shanghai, our group made a brief stop on the Bund where we viewed the incredible Pudong skyline during a slight drizzle. On the next day -- Friday March 16 -- our group visited the Taikan Lu arts district in the French Concession and then we stopped at the Shanghai Museum and the Nanjing Road shopping district. On Friday afternoon the group visited a Chinese law firm -- the DeBund firm -- where we participated in the firm’s weekly discussion session. Wei Hu, an associate at the firm, had been one of the young CHinese environmental professionals who had participated in a workshop on U.S. environmental law that we conducted at Maryland last June. When we arrived at the firm a training session was being conducted for young associates on recent developments in patent law. AFter they made room for our group, we enjoyed an incredibly candid discussion of the status of the “rule of law with Chinese characteristics.”

There are now 14,000 lawyers and more than 1,000 law firms in Shanghai (Beijing has more than 20,000 lawyers), The DeBund Firm has 44 lawyers , including 11 partners. It currently is rated #36 in Shanghai. The lawyers explained the difficulty of practicing in a legal system where the courts are “not so independent”. The National People’s Congress has just approved changes in China’s criminal code, which will make it somewhat more transparent. The changes include a provision to legalize forced disappearances of people who are deemed threats to state security, hardly a change in policy, but one that has spawned protests for its interference with civil liberties.

Comparing U.S. and Chinese law, members of the firm noted that witnesses rarely come to court in Chine, despite courts asking them to do so. The Supreme Court of China has ordered the country’s old specialty railroad courts to be integrated into China’s court system. Recently it has started issuing interpretations of various laws. While there is no formal legal source for Supreme Court’s power to do this, its “Instructive cases” project was started last year.

The DeBund law firm specializes in intellectual property law, foreign direct investment and environmental torts. The lawyers seemed frustrated that ConocoPhillips had received only a fine of 200,000 RMB for an oil spill in Bohai Bay. While noting that there had yet to be a critical mass of lawyers practicing environmental law in China, the firm has handled environmental cases. Disputes over siting new chemical plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for powerplants and new industries usually are made without consulting the public and there is little chance for lawyers to block them. Occasionally environmentalists win, but it usually is due to their ability to generate sufficient political opposition to a project, rather than due to enforcement of the environmental laws.

On Friday evening our group had a reception at the Maryland China Center, which initially had been established by the state of Maryland to help Maryland companies do business in China. Jim Curtis from the Center noted that the Center now devotes substantial resources to helping Chinese companies create jobs by doing business in Maryland. Our group heard a presentation from Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education. After a final day of sightseeing in Shanghai on Saturday, we flew back to Washington on Sunday March 18.

A gallery of photos of our trip to China is available online at: http:gallery.me.com/rperci/100910.

Monday, March 5, 2012

BP Settlement, Kiobel and GHG Arguments, Nordhaus Rebuts Climate Skeptics, China Wind Power & ACWA Conference (by Bob Percival)

Last week BP agreed on the eve of trial to settle claims by more than 100,000 private plaintiffs for damages caused by the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. BP estimates that the settlement will cost it approximately $7.8 billion, which will be taken from the existing $20 billion Gulf Coast Claims Facility it had established. The Facility will be replaced by a new court-supervised process that will provide $2.3 billion in compensation for fishermen and a separate process for assessing claims by those who allege that their health has been damaged by the spill. The settlement does not resolve claims against BP brought by the federal government or by the five Gulf states, nor does it cover claims by the private parties against Transocean, which owned the oil rig, or Halliburton, which provide support services for the drilling operation. BP already has set aside more than $3 billion for civil penalties, but the fines could reach more than $17 billion if the company is found to have been grossly negligent. The government also may seek criminal penalties against BP.

On Monday February 27 I did a live TV interview about the prospects for a BP settlement from the Washington studio of Canada’s Business News Network (BNN). The network was buzzing with the news that the TransCanada Corporation had announced plans to move ahead with the 435-mile Gulf Coast leg of the Keystone XL pipeline with the endorsement of the White House. I had been scheduled also to appear on Al Jazeera the same day to discuss the BP trial, but the program was canceled after the trial was postponed.

On February 28 a Brazilian judge denied a request by a federal prosecutor to suspend offshore oil drilling operations by Chevron and Transocean in response to a November spill off the coast of Brazil that released 3,000 barrels of oil. The Brazilian government is seeking nearly $12 billion in damages for the spill, even though the spill was less than one thousandth the size of the BP spill. The judge stated that the companies should not be punished until after they have had a chance to defend themselves in court. Jeff Fick, Brazil Rejects Injunction in Case Over Oil Spill, Wall St. J., February 29, 2012, at B7.

On Tuesday February 28 I attended the oral argument before the U.S. Supreme Court in Royal Dutch Petroleum v. Kiobel, the case raising the question whether corporations can be held liable under the Alien Tort Statute (ATS) for violating the “law of nations.” The Nigerian plaintiffs accuse Royal Dutch Petroleum of collaborating with the Nigerian military in human rights abuses for protesting environmental damage caused by the company’s oil extraction. Plaintiffs, supported by the federal government, urged the Justices 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. Stanford law professor Kathleen Sullivan, representing the oil company, did an impressive job of making the case against corporate liability. The Justices seemed more inclined than ever to signal how they intended to vote in the case, making a 5-4 ruling in favor of the Dutch oil company likely. Justice Kennedy, the crucial swing vote, seemed impressed with an amicus brief by Britain and the Netherlands arguing that it would be inconsistent with international law for a U.S. court to hold a foreign company liable for actions that occurred outside of the U.S. In an unusual move, the Court announced today (March 5) that it would hear reargument of the case devoted 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 suggests that the Court may 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, and instead hold only 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.

Following the oral argument several of my students who had attended the argument came to lunch at my house, a short walk from the Court. After the lunch I drove to College Park with Professor Zhao Huiyu, Maryland’s visiting Chinese environmental scholar, to conduct a workshop on environmental law for environmental officials from Anhui Province, China. The officials are in the U.S. for two weeks as a part of a training program sponsored by the Maryland China Initiative. They seemed particularly interested in comparing how environmental permits are written in China and the U.S. On Thursday I am leading a group of 36 Maryland law students and alums on a trip to China. We will be visiting Beijing, X’ian and Shanghai, meeting with several Chinese environmental lawyers and law students, and participating in a workshop with the All China Environmental Federation before returning to the U.S. on March 18.

While the Supreme Court was hearing Kiobel, the U.S. Court of Appeals to the D.C. Circuit was hearing the first of two days of oral argument on consolidated challenges to EPA’s finding that emissions of greenhouse gases (GHGs) endanger public health and welfare and the various rules the agency has promulgated for controlling GHGs. Last November at a dinner of prominent environmental practitioners (see Nov. 6, 2011 blog post) virtually everyone (including several prominent industry lawyers) agreed that EPA’s endangerment finding would be upheld by the D.C. Circuit. Many thought EPA would beat back all of the legal challenges to its regulation of GHG emissions. However, some others, including a few prominent supporters of EPA, believed that EPA’s tailoring rule could be struck down. While predictions are always hazardous, these still seem like good bets.

In an article published last week in the New York Review of Books, William D. Nordhaus, the Sterling Professor of Economics at Yale, presents a powerful response to the January 27, 2012 Wall Street Journal op-ed by 16 climate skeptics. William D. Nordhaus, “Why the Global Warming Skeptics Are Wrong,” available online at: http://www.nybooks.com/articles/archives/2012/mar/22/why-global-warming-skeptics-are-wrong/ He rejects all six arguments made by the skeptics, argues that they misrepresent the science and his own work, and concludes that the “claim that cap-and-trade legislation or carbon taxes would be ruinous or disastrous to our societies does not stand up to serious economic analysis.”

China’s investment in new wind power capacity is slowing. In 2011 the amount of newly-added wind power capacity in the country fell by 5% and it is expected to decline by even more in 2012. Yet China remains the world’s largest market for wind power and Barclays Capital still estimates that the country’s wind power capacity will double by the year 2015. A Blow for China, Financial Times, March 5, 2012, at 14.

On February 29 I gave the luncheon keynote address at the conference of the Association of California Water Agencies (ACWA). The audience included some of the 450 California water agencies that are members of the ACWA. There was considerable talk during lunch about H.R. 1837, a bill sponsored by Rep. Devin Nunes that passed the U.S. House of Representatives that day. The bill would trump national and California environmental restrictions on water transfers. It is considered unlikely to pass the Senate. I spoke to the group on “China and the Global Environmental Challenge,” with a particular focus on China’s water problems, which often have been cited as a perhaps the most significant factor constraining that country’s future growth. Professor Zhao also came to Washington for the lunch. When asked whether my assessment was correct that most people in China now consider the Three Gorges Dam to have been a mistake, she emphasized how complicated it is to make such assessments, while allowing that the public did not have much say in the project. Later in the day Professor Zhao gave an introductory lecture on Chinese environmental law to my seminar on Global Environmental Law.