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.