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, May 27, 2012

Brazil Forest Law Veto, Law of Sea Hearing, Global CO2 Rises, Airlines Refuse EU Data, British Nuclear Plans (by Bob Percival)

As mentioned in my last blog post, Brazilian President Dilma Rousseff faced a May 25 deadline to decide whether or not to veto a new Forest Law that would have granted amnesty for illegal logging and greatly reduced the area of required forest cover. On May 25, President Rousseff vetoed 12 articles of the law, including the amnesty and provisions reducing mandatory reforestation. Precise details of the partial veto have not been released, but it is being portrayed as a compromise that will not completely satisfy environmental interests.

Imagine an important policy issue on which there is rare bipartisan agreement between environmentalists, big oil and mining interests, the U.S. military, and business and political leaders. That would be the need for the U.S. to ratify the Law of the Sea Convention. On May 23 the Senate Foreign Relations Committee held hearings on the issue as part of a renewed push for Senate ratification of this treaty that was concluded in 1982 and that entered into force in 1994. A total of 162 countries have ratified the Law of the Sea, which establishes ground rules governing the world’s oceans and legal mechanisms for resolving international disputes over ocean resources. Ratification of this treaty, which requires a two-thirds vote in the Senate, has been blocked for years by what the editors of the New York Times described as “a small group of cranky right-wingers and xenophobic activists,” Once More on the Law of the Sea,” N.Y. Times, May 24, 2012. In an effort to de-politicize the issue, Senator John Kerry, chair of the Foreign Relations Committee, has promised that the final ratification vote will not be held until after the November election. With such broad bipartisan support -- the U.S. Chamber of Commerce even took out full-age ads supporting ratification last week -- it is hoped that this may be the year the U.S. finally joins the rest of the world by ratifying the treaty.

Last week the International Energy Agency reported that global carbon dioxide (CO2) emissions increased by 1.0 gigatonnes (Gts) in 2011 to a record 31.6 Gts, a 3.2% increase over 2010. Emissions actually fell in the OECD by 0.6%, but this reduction was offset by a 6.1% increase in emissions in other countries. China accounted for the largest share of the global increase as its emissions rose by 720 million tonnes, or 9.3% due largely to increased coal consumption. However, China’s carbon intensity (emissions per unit of GDP) actually fell by 15% between 2005 and 2011 as the country improved its energy efficiency and use of renewable energy sources. India’s emissions rose by 140 million tonnes, an 8.7% increase, making it the fourth largest emitter in the world behind China, the U.S., and the European Union. However, CO2 emissions per capita in India are only 15% of the OCED average; China’s per capita emissions are now 63% of the OECD average.

U.S. CO2 emissions actually declined by 1.7% in 2011 due to the switch away from coal to cheaper natural gas and the impact of a mild winter. U.S. emissions are now 7.7% lower than they were in 2006 due to the shift away from coal in power production and increased fuel economy in the transportation sector. EU emissions declined by 1.9% in 2011, but Japan’s emissions increased by 2.4% due to greater use of fossil fuels to generate electricity in the wake of the Fukushima Daiichi nuclear disaster.

Last week ten Chinese and Indian airlines refused to provide the EU with carbon emissions data that would enable the EU to calculate emissions charges to impose on them. India’s minister of civil aviation Ajit Singh threatened to ban EU airlines from Indian airspace if the EU takes action to sanction the two Indian air carriers that fly to the EU. Singh argued that compliance with the EU emissions trading scheme for aviation could be the first step toward EU imposition of a carbon tax on shipping or cement. Connie Hedegaard, the EU climate commissioner, expressed hope that the dispute could be resolved by the UN’s International Civil Aviation Organization adopting a global scheme to control carbon emissions from aviation.

Last week Tokyo Electric Power announced that nearly twice as much radiation had been released in the Fukushima Daiichi nuclear accident than the last Japanese government estimate. The new estimate of 900,000 terabecquerels still represents only 17% the 5.2 million terabecquerels of radiation released in the Chernobyl nuclear accident. Mitsuru Obe, Radiation Release in Japan Higher Than Reported, Wall Street Journal, May 25, 2012, at A9. While Japan and Germany move to phase out nuclear power and France’s new president Francois Hollande hopes to reduce his nation’s reliance on it, the British government proposed last week to finance a new generation of nuclear power plants. Britain’s Department of Energy and Climate Change released draft legislation that would set price guarantees for low carbon electricity generated by nuclear power plants and renewable energy projects. The proposal is viewed as an effort to avoid EU restrictions on direct subsidies for nuclear power construction. Stephen Castle, Britain Says It Will Add Reactors for Energy, N.Y. Times, May 23, 2012, at A7.

I am a member of an ad hoc workgroup that is exploring how to persuade the American Law Institute (ALI) to tackle an environmental project. On Monday May 21, the opening day of the ALI annual meeting, we had a lunch meeting in D.C. with thirteen environmental law experts interested in the project. We tentatively agreed to focus on a project on environmental impact assessment. On Tuesday May 22 I gave a workshop on U.S. constitutional law and the Supreme Court to a group of 40 Chinese middle managers who are enrolled in the Peking University National School of Development's Beijing International MBA Program.  The group was visiting the University of Maryland School of Public Policy in College Park as part of Maryland’s Executive Master of Public Management Program (EMPM), which is specifically designed for Chinese executives.  It was a fairly impressive group who asked lots of questions and expressed skepticism of my claim that the U.S. judiciary is virtually free of corruption.  We discussed in detail the current controversy over the constitutionality of the Affordable Care and Patient Protection Act. The group toured the U.S. Supreme Court on May 23.

On Wednesday May 23 I was in New York for the annual meeting of the National Committee on U.S./China Relations (NCUSR). I was invited to join the committee this year and this was the first time I attended the annual meeting. Former U.S. Ambassador to China John Huntsman, Jr. spoke to the group about his experiences in China. He emphasized the need for the U.S. and China to make their relationship work and to avoid using China as a “political pinata.” In response to a question from the head of Human Rights Watch, Huntsman suggested that the best way to help improve human rights in China would be to start a dialogue with U.S. companies operating in China about the rights of their Chinese workers. He emphasized the need to increase public understanding of the importance of good relations with China by “humanizing” the relationship. The National Committee includes a bipartisan who’s who of China experts, including prominent moderate Republicans, including Huntsman, former U.S. Trade Representative Carla Hills, former Secretary of State Henry Kissinger, and New Jersey Governor Tom Kean. I am now in Boulder, Colorado for the wedding of one of my old mountain-climbing buddies from decades ago.

Sunday, May 20, 2012

U.S. Imposes Tariffs on Chinese Solar Panels, China Plans Carbon Trading, Brazil Forest Law Decision Looms, CDC Lowers Lead Poisoning Threshold, ELI Program (by Bob Percival)

On May 17 the U.S. Commerce Department imposed 31% tariffs on solar panels exported by 61 Chinese companies. The action was based on a finding that the companies had been unfairly dumping the panels at prices that were significantly below their actual cost. The decision was taken in response to a complaint filed by the U.S. subsidiary of the German firm Solar-World AG and six other U.S. solar panel producers. The decision, which is subject to appeal, is controversial because it will raise the cost of deploying solar panels in the U.S. hindering the Obama administration’s push to encourage more renewable energy. Approximately half of the solar panels used in the U.S. are made in China. Keith Johnson & Cassandra Sweet, U.S. Imposes Tariffs on China Solar Panels, Wall St. Journal, May 18, 2012, at B3. The value of imports of Chinese solar cells into the U.S. rose from $640 million in 2009 to $3.1 billion in 2011. The Coalition for Affordable Solar Energy denounced the decision, arguing that it will harm U.S. workers who deploy solar panels by making them more expensive. Ed Crooks, Trade War Fears as US Plans Duties on Chinese Solar Cell Imports, Financial Times, May 18, 2012.

The Chinese government plans to launch seven pilot carbon emissions trading programs next year in five cities and two provinces. The cities include some of the largest in China, including Beijing, Shanghai, Tianjin, Shenzen and Chongqing. The provinces are Guangdong and Hubei. If the emissions trading program is a success, it is hoped that China will implement a national emissions trading scheme after 2015. Many experts are skeptical of China’s ability to launch successful emissions trading programs given the difficulties that have been encountered with the country’s existing efforts to trade sulphur dioxide emissions. But most agree that if the program is a success, it could mark a significant turning point in the global political dynamic surrounding efforts to control emissions of greenhouse gases. Pilita Clark & Leslie Hook, China Injects Vigour Into Debate on Emissions, Financial Times, May 17, 2012, at 6.

Brazilian President Dilma Rousseff must decide by next Friday May 25 whether or not to veto the new Forest Code adopted in April by the Brazilian Congress. At the behest of rural agricultural interests, the Code adopted by the Congress would provide amnesty for anyone who illegally deforested areas before 2008. It also would reduce the amount of forest cover that must be preserved by landowners from 80% to 50%, allowing destruction of up to 190 million acres of forest that currently is protected. The legislation shocked environmentalists and represented an indication of the growing political power of Brazil’s “ruralistas.” Valor Economico, Brazil’s top financial newspaper, has surprised the ruralistas by advocating a veto, noting that it will be “one of those decisions which define a government.” Simon Romero, Brazil’s Leader Faces Defining Decision on Bill Relaxing Protection of Forests, N.Y. Times, May 17, 2012, as A12.

On May 16 the U.S. Centers for Disease Control (CDC) announced that it no longer would consider levels of lead in children’s blood below 10 micrograms per deciliter to be below the level of medical concern. The decision follows a recommendation last January by a scientific advisory panel that noted the growing scientific literature linking neurological damage in children to low level lead exposures even below 10 µg/dl. CDC had lowered the level of medical concern to 10 µg/dl in 1991. Recognizing that the data show that there is no “safe” level of lead exposure, the CDC stated that medical concern should instead focus on the 2.5% of children with the highest levels of lead in their blood, which now approximates to levels equal to or above 5 µg/dl. A CDC fact sheet explaining the new policy is available online at: http://www.cdc.gov/nceh/lead/ACCLPP/Lead_Levels_in_Children_Fact_Sheet.pdf

On May 16 the Total corporation announced that it had finally succeeded in stopping an undersea natural gas leak at its Elgin North Sea platform. The leak was stopped by pumping heavy mud into the well, which had first been discovered to be leaking on March 25.

On May 16 I participated in a panel on causation in environmental torts at the Environmental Law Institute (ELI) in Washington, D.C. I discussed the history of environmental torts and efforts to overcome what I call the “causation conundrum” - the difficulty of satisfying common law requirements for individual proof of causal injury when there are so many sources of multiple agents capable of causing particular injuries. These efforts include laws shifting the burden of proving causation in certain circumstances and administrative compensation schemes. I mentioned the subsequently-reversed decision in Allen v. U.S., 588 F.Supp. 247 (D.Utah 1984), reversed 816 F.2d 1417 (10th Cir. 1987) and developments in Chinese and Japanese law. Joining me on the panel were John S. Guttmann of Beveridge & Diamond who has served as defense counsel for several companies accused of causing MTBE contamination of water supplies and Carla Burke of Baron & Budd who represents water supply companies that are plaintiffs in such litigation. The MTBE litigation has been consolidated in federal district court in New York before Judge Shira Scheindlin. In Re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation. Plaintiffs in the MBTE cases are suing the manufacturers on the theory that the product was defective because it so easily contaminated water supplies. Defendants argue that if the contamination was below regulatory standards for drinking water it cannot be shown to have caused injury. An MP3 file of the program is available online to members of ELI at: http://www.eli.org/Seminars/event.cfm?eventid=692


On May 18 the University of Maryland Carey School of Law graduated 22 students with the Certificate of Concentration in Environmental Law. Congratulations to all. Since Maryland initiated the certification program in 1998, a total of 293 students have graduated with the Environmental Law certificate of concentration.

Monday, May 14, 2012

Russian Professors Visit, TEPCO Takeover, Corps v. Carp, Chilean Supreme Court Stops Hydro Project (by Bob Percival)

On Tuesday May 8 I spoke to a group of five law professors from Russia who came to the law school to discuss teaching and research in environmental law. The professors were: Marina Leonidovna Davydova, Head of the Department of Constitutional and Municipal Law at Volgograd State University; Natalya Alexandrovna Geyt, Associate Professor on the Law Faculty of the Russian Presidential Academy of National Economy and Public Administration; Dr. Svetlana V. Boshno, Professor of Law at the Russian Civil Service Academy who also serves as a Staff Advisor to the Federation Council of the Federal Assembly of the Russian Federation and Publisher and Editor-in-chief of the legal journal “Legislation Review”; Ekaterina Yirievna Dogadaylo, an Associate Professor in the Theory of State and Law Department at the Russian Presidential Academy of National Economy and Public Administration; and Evgeny Alekseevich Mamay, a Lecturer in the Department of Theory and History of State and Law at the Nizhny Novgorod Academy of the Interior. We discussed how the teaching of environmental law is evolving with the advent of electronic casebooks and the growing use of course websites. I demonstrated the Blackboard technology that we use for classes at Maryland. Not surprisingly, one of their main concerns was how to pay for the use of such technology.

On Friday I joined Professor Barbara Gontrum, Maryland’s law librarian, at a university-wide focus group on the future of technology in education. I was pleased to learn that the University of Maryland has been having high-level discussions on this topic with executives from both Apple and Google. Apple’s leadership apparently is quite serious about using its new iBook technology to make inroads in the higher education market, though the company is far less open than Google in discussing its future plans.

On May 9 a plan to nationalize the troubled Tokyo Electric Power Company (TEPCO), owner of the damaged Fukushima Daiichi nuclear power complex, was approved. The Japanese government has allocated 1 trillion yen ($12.5 billion) to take over the company and to decommission and clean up the reactors where a disastrous accident occurred in the wake of the March 2011 tsunami. The Japanese government also has allocated 2.4 trillion yen ($30.1 billion) to compensate those harmed by the accident. The Japanese government will receive special shares giving it a majority interest in TEPCO, which it eventually plans to relinquish after the company’s financial health has improved enough to enable it to return to the bond market. Under the takeover plan, the entire board of directors of TEPCO will resign at the annual shareholders’ meeting next month. They will be replaced by a new board with a majority of outside directors. Hiroko Tabuchi, Takeover Near for Tokyo Electric Power, N.Y. Times, May 10, 2012, at B4.

With the discovery that the electronic barrier designed to keep invasive Asian carp from invading the Great Lakes has suffered a mechanical failure, the U.S. Army Corps of Engineers has been under new pressure to stop the carp. Last week the Corps announced that it would seek to “streamline” its decisionmaking process by issuing an interim report to Congress next year. Environmentalists were not impressed by the announcement, noting that it does not guarantee that decisions will be made any sooner. The Great Lake states have been trying to use the federal common law of nuisance to get the courts to intervene to require the Corps to close the Chicago Sanitary Canal to prevent the carp from reaching Lake Michigan. So far the courts have declined to intervene, though the Seventh Circuit noted that it would closely watch the Corps’ progress in dealing with the problem.

Last week the Supreme Court of Chile accepted an appeal by environmental groups and halted construction on the Rio Cuervo hydroelectric project in Patagonia. The project is part of a three-dam complex to be built in the Aysen area. The court ruled that the environmental review board should have ordered a new soil survey to be performed as recommended by Chile’s national geology and mining service. Energia Austral, the joint venture building the dams, emphasized that this is only a temporary setback and that construction eventually may resume after the new soil survey is completed. The Chilean Supreme Court has refused to intervene to stop a separate five-dam, $3.2 billion Hidroaysen project to be built nearby, which already is in the final stages of approval.

Monday, May 7, 2012

Vancouver Workshop on "Global Capital, Global Rights," , Bohai Bay Spill Settlement, Last Japanese Reactor Closed (by Bob Percival)

On Sunday night I returned from Vancouver where I participated in a wonderful workshop on “Global Capital, Global Rights,” co-sponsored by Simon Fraser University and the University of British Columbia. The conference, which was organized by Simon Fraser Professor Alec Dawson, focused on efforts to hold extractive industries liable for environmental harm in developing countries. Half of the capital raised in the world for mining operations comes from Canada and there has been considerable effort by Canadian environmental activists to hold companies accountable. I spoke on the topic “Toward Transnational Norms of Corporate Accountability for Environmental Harm,” focusing on both the history of Alien Tort Statute litigation in U.S. courts and new transparency initiatives.

Professor Liisa North from York University discussed seven cases that have been filed in Canadian courts against Canadian mining companies for harm caused abroad. Three of the cases have been dismissed, but four are still pending. In one decision the Ontario Court of Appeals upheld the dismissal of an action against the Canadian Stock Exchange and a copper mining company for human rights violations in Ecuador, holding that the Exchange had no duty to consider possible harm even when informed of prior violations. Two other cases were dismissed on forum non conveniens grounds. When one was refiled in Guyana the court there ordered the plaintiffs to pay the defendants’ legal costs. A copy of Professor North’s paper on “Generating Rights for Communities Harmed by Mining: Legal and Other Action,” is posted online at: http://globalcapitalglobalrights.files.wordpress.com/2012/04/liisa-north1.pdf.

Luis Angel Saavedra from the Instituto Regional de Asesoria en Derechos Humanos (IREDH) in Quito, Ecuador spoke about the long-standing litigation against Chevron for Texaco’s pollution of the Oriente region of the Amazon. He also noted that Chinese companies are now significant offenders. Karyn Kennan from the Halifax Initiative discussed the narrow defeat in the Canadian Parliament of private member Bill C-300, which would have established accountability mechanisms for Canadian extractive industries that receive political and financial support from government agencies. The proposed legislation would have created criteria that companies must comply with in order to be able to receive government assistance. It also would have created an independent complaints mechanism, something the Canadian government has purported to implement, but with the requirement that complaints can only be heard if all parties agree. Ms. Kennan also highlighted the effort by John Ruggie, the UN Secretary-General’s Special Representative on Business and Human Rights, to establish the “Protect/Respect” Framework (see http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework) and Guiding Principles on Business and Human RIghts to inform its implementation. John McKay, the member of the Canadian Parliament who had introduced Bill C-300, discussed the intense lobbying campaign from Canadian mining companies that helped defeat the bill. He is now seeking to win adoption of legislation that would require Canadian companies to make the same kind of disclosures concerning payments to foreign officials that companies listed on the New York Stock Exchange now are required to make by the Dodd-Frank Wall Street Financial Reform legislation.

Drina Saric from the Inter-American Development Bank spoke about Bolivia President Evo Morales’ nationalization of foreign enterprises and the impact of the new Bolivian Constitution, which expressly seeks to extend rights to nature. A group of Achuar from Peru who were in Vancouver for an indigenous rights conference at the University of British Columbia also addressed the workshop. They emphasized that extractive industries fulfill only a small percentage of the commitments that are made to indigenous communities when permits are being sought. All in all, it was a really terrific workshop. Copies of the workshop papers are available online at: http://globalcapitalglobalrights.wordpress.com/workshop-papers/

During the last week of April, the Chinese government fined ConocoPhillips and ordered the company to pay restitution of $192 million for its 3,000-barrel oil spill last year in China’s Bohai Bay. Ed Crooks, Conoco’s New Chief Plans Culture Shake-up, Financial Times, May 2, 2012, at 17. On May 5 the last operating nuclear powerplant in Japan was taken offline. The Tomari No. 3 plant has been the only one of Japan’s 54 nuclear powerplants that has been in operation for the last several weeks due to political pressure in the wake of the March 2011 Fukushima Daiichi nuclear accident. Mure Dickie and Jonathan Soble, Japan Shuts Down Nuclear Power, Financial Times, May 4, 2012.

Tuesday, May 1, 2012

Teaching in China, Brazilian Forest Legislation, EPA Palm Oil Rule, Cambodian Environmentalist Killed (by Bob Percival)

I have just returned from a week in Chine where I taught a course on Principles of Environmental Law at Shandong University School of Law in Jinan. I gave a 2-hour lecture every day for five days to a class of approximately 20 students. The students were wonderful and many are interested in coming to the United States to study. Because law is an undergraduate subject in China, the students were a bit younger than the students I teach in the U.S. One of the students who is about to graduate will begin an LL.M. program in Washington, D.C. in August. Others are studying to take the LSAT in preparation for applying to J.D. programs in the U.S.

While in Jinan I stayed at the University Hotel in the heart of the central campus of Shandong University. My lectures were delivered in the School of Law, which is on the old campus a few miles away. Each day students would meet me at my hotel and escort me to class, insisting on carrying my briefcase for me. During the day on Saturday two of my students took me on a tour of Jinan. We climbed the Jianfoshan Mountain that overlooks Jinan, which features a park with a thousand statues of Buddha. We then visited the main city square prior to eating a lunch of street food in the old part of town. After lunch we visited Daming Lake and Baotu Springs, a park where the city’s famous springs are located. On Saturday evening April 28 I gave a lecture on the debate in the U.S. over the constitutionality of the Patient Protection and Affordable Care Act. In the audience was Wendy M. Keats, a retired U.S. Justice Department lawyer who is teaching a class on constitutional law at Shandong University.

Jinan is in Shandong Province just 200 miles from Linyi, the town where blind Chinese human rights lawyer Chen Guangcheng escaped from extralegal house arrest last week and made his way to Beijing where he is under the protection of the U.S. Embassy. None of the professors I met were aware of the situation because it is not being covered in the Chinese media. Photos from my week in Jinan are posted online at: http://gallery.me.com/rperci#100943.

The Brazilian Congress shocked environmentalists and the administration of President Dilma Rousseff on April 25 by adopting forestry legislation championed by farming interests. The Congress rejected a carefully negotiated compromise and adopted legislation that will reduce required forest set-asides on farms and waive fines for past clear-cutting. President Rousseff is now considering whether to veto the legislation.

On April 27 the comment period closed on an EPA rulemaking to determine whether to allow palm oil to be used in diesel fuel to meet renewable energy mandates in U.S. energy legislation adopted in 2007. In January EPA determined that diesel made from palm oil emitted only 11 to 17 percent fewer greenhouse gases than gasoline, not enough to meet the mandate that such fuels be at least 20 percent cleaner. Fierce lobbying has ensued with representatives of palm oil interests arguing that EPA has underestimated the environmental benefits of palm oil, while environmentalists argthe impact of palm oil on deforestation. EPA assumed that only 9 to 13 percent of palm oil production will occur on environmentally sensitive peatland, while environmentalists point to a new study claiming that more than half of it occurs there. Brad Plumer, EPA’s Crucial Climate Decision, Washington Post, April 28, 2012, at A10.

Prominent Cambodian environmentalist Chut Wutty, director of the National Resources Protection Group was shot and killed at a police checkpoint in Koh Kong Province last week while guiding two journalists on a tour to expose illegal logging operations. The Cambodian military has stated that it is unlikely to conduct any further investigation of the killing because the officer who shot Wutty, In Ratana, subsequently committed suicide.