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

Saturday, June 30, 2012

DC Circuit Upholds EPA GHG Regs, Jiangsu Workshop, Congressional Hearing, IUCN Academy Colloquium Opens (by Bob Percival)

This was a week that helped restore one’s faith in the independence of the U.S. judiciary. On Tuesday June 26 the U.S. Court of Appeals for the D.C. Circuit issued a decision rejecting all the consolidated challenges to EPA’s regulation of greenhouse gases that were argued during the last two days of February. The first 14 pages of the 82-page decision in Coalition for Responsible Regulation v. EPA simply list the names of the 26 petitions for review and the lawyers bringing or defending against them. The panel hearing the case included Chief Judge David Sentelle, traditionally a harsh critic of environmental regulation, and Judith W. Rogers and David Tatel. Perhaps to emphasize their unanimity, the decision was issued per curiam without identifying an individual author.

The court held that EPA’s finding that emissions of greenhouse gases (GHGs) may reasonably be anticipated to endanger public health or welfare was neither arbitrary nor capricious. This was the key finding that triggers EPA’s obligation to regulate GHG emissions under the Clean Air Act (CAA). The court also upheld EPA’s “tailpipe rule” setting emissions standards for cars and light trucks and it found that EPA’s interpretation of the application of the CAA to GHGs was “unambiguously correct.” On the question of whether EPA had the authority to limit the initial round of permit regulations under its prevention of significant deterioration (PSD) program to sources much large that the thresholds designated in the statute (the “timing and tailoring” rule), the court held that the petitioners lacked standing to complain that even more sources had not been regulated. The court rejects challenges to EPA’s assessment of climate science, including the claim that the East Anglia emails undermine the agency’s conclusion. I have created an edited version of the opinion that will be included in my Statutory & Case Supplement 2012-13 that Aspen Publishers will publish next month. It will be posted on my casebook website at: http://www.erlsp.com

On Wednesday June 27 I gave a workshop on Environmental Law to 20 judges from Jiangsu Province, China who visited the law school as part of the Maryland China Initiative. Ten of the judges were from the Jiangsu High People’s Court. The group also included two judges from the Lianyungang Intermediate People’s Court as well as judges from the Changzhou Intermediate People’s Court, the Huai’an Intermediate People’s Court, the Yangcheng Intermediate People’s Court, the Nantong Intermediate People’s Court , the Xighua People’s Court and the Suqian County and District People’s Courts. We reviewed the history and structure of U.S. environmental law and the constitutional sources of judicial power in environmental cases. At the time we knew that the U.S. Supreme Court would be handing down its landmark decision on the constitutionality of the Affordable Care Act on the following day so I also briefed the judges on what to look for and the unusual interplay between law and politics in this case.

On Thursday June 28 I testified before the Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform of Congressman Darrell Issa’s Committee on Oversight and Government Reform. The controversial title of the hearing was “Mandate Madness: When Sue and Settle Just Isn’t Enough.” Republican Congressman James Lankford of Oklahoma asserted that environmental groups are conspiring with EPA to invite lawsuits that then are quickly settled with consent decrees obligating the agency to do things it should not be doing to protect the environment. The four majority witnesses at the hearing supported this notion though only one of them, former EPA General Counsel Roger Martella focused primarily on the “sue and settle” issue. William Kovacs from the U.S. Chamber of Commerce primarily argued that regulations kills jobs, while Oklahoma Attorney General E. Scott Pruitt and William M. Yeatman from the Competitive Enterprise Institute complained about EPA’s regional haze regulations which were the product of a lawsuit that was settled.

I was the only minority witness and I argued that the claim of collusive litigation is a fantasy. Lawsuits to force EPA to regulate generally require that the agency has failed to perform a mandatory duty, settlements are to be encouraged and must be approved by a court after hearing any objections, and the agency may not commit to the substance of regulatory changes because rulemaking is subject to the requirements of the Administrative Procedure Act. I also argued that EPA’s propensity to settle was no different under the Obama administration than previous administration. This prompted Congressman Labrador from Idaho to say that the Bush administration had not tried to shut down the coal industry. A video of the hearing is now online on You Tube at: http://www.youtube.com/watch?v=0nUBainl97M&feature=relmfu

The hearing ended just as news was breaking concerning the U.S. Supreme Court’s decision upholding the Affordable Care Act by a 5-4 vote. By construing the individual mandate as a tax, Chief Justice Roberts provided the crucial fifth vote for upholding it. But he separately indicated that he did not believe Congress had the power to adopt the mandate under the commerce clause, a position echoed by the four dissenters who oddly did not join the Chief Justice’s opinion on this issue, failing to make it part of the opinion of the Court. Normal principles of judicial restraint would have allowed Roberts not to reach the commerce clause issue because the mandate is constitutional as a tax.  While the editors of the Wall Street Journal implied that the dissenter’s reference to Justice Ginsburg’s “dissent” on the mandate was a mistake revealing a last minute vote switch by Robert, I am not persuaded. I think the dissenters want to emphasize that their are now five votes for a new limit on commerce. Although the decision may spawn creative new legal theories to attack the constitutional basis for environmental regulation, right now I do not see this aspect of it being a major threat to environmental law.

Following the hearing, my research assistants and I walked over to the Court, which was mobbed with people - Tea Party types in colonial dress, ministers kneeling and praying with bibles, and Michelle Bachmann with her own loudspeaker delivering a stream-of-consciousness harangue about it being the day liberty ended in the U.S.

The Tenth Colloquium of the IUCN Academy of Environmental Law starts today in Baltimore at the University of Maryland Francis King Carey School of Law. Some participants had their arrival delayed by the fierce storm that hit the east coast on Friday night. Today’s events include a symposium on environmental law clinics followed by a bullpen party at the Baltimore Orioles/Cleveland Indians baseball game. I will try to post updates on the Colloquium as frequently as possible.

Monday, June 25, 2012

Rio+20 Conference Concludes, Mercury Rule Upheld in Senate, Southern Union Decision, IUCN Academy Colloquium (by Bob Percival)

The Rio+20 Conference, the once every decade gathering of world leaders to focus on the environment, ended on Friday June 22. More than 100 world leaders attended, but prominent by their absence were U.S. President Barack Obama, UK Prime Minister David Cameron, and German Chancellor Angela Merkel. Delegations worked feverishly until early Tuesday morning, the day before the conference officially opened, to agree on an outcome document that was endorsed at the conference. This document does not seem to represent any substantial breakthroughs. Some are questioning whether there even will be another global environmental conference in ten years. The event attracted more than 45,000 people and more than 600 side events were held, such as the Symposium that I spoke at on June 16 at the Supreme Court of Rio. Some are arguing that this illustrates the increasing importance of “bottom-up” approaches to environmental protection in line with my theory concerning the development of global environmental law.

On Wednesday June 20 the U.S. Senate by a vote of 53-46 refused to veto the U.S. Environmental Protection Agency’s rule to control emissions of mercury and air toxics under the Clean Air Act. The effort to veto the rules was led by Senator James Inhofe, who invoked the provisions of the Congressional Review Act (CRA). Under the CRA a special fast-track procedure can be invoked to call for a vote over whether major regulations should be blocked by Congress. The White House had indicated that President Obama would likely have vetoed the resolution to block the regulations had it won approval in both houses of Congress. Five Republican Senators voted against blocking the regulations. These include New Hampshire’s Kelly Ayotte, Susan Collins and Olympia Snowe of Maine, Scott Brown of Massachusetts, and Lamar Alexander of Tennessee. Five Democrats voted to block the regulations including Senators Ben Nelson of Nebraska, Mark Warner and Jim Webb from Virginia, Mary Landrieu from Louisianna, and Joe Manchin of West Virginia.

With legal scholars and politicians anxiously awaiting it ruling on the constitutionality of the Affordable Care Act, the U.S. Supreme Court on Thursday June 21 decided its last environmental case of the Term. In Southern Union Co. v. United States, the Court vacated a multi-million fine for illegal storage of hazardous waste in violation of the federal Resource Conservation and Recovery Act (RCRA) because the jury that returned the conviction had not specified the number of days of the violation. RCRA authorizes criminal fines of up to $50,000 per day of the violation and the indictment had charged that the waste had been illegally stored for 762 days. However, the defendant maintained that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) required that the jury, rather than the judge, separately find every fact that may increase the maximum punishment for the crime. The result is unfortunate given the serious nature of the offense - storing mercury where children played in it and spread it around an apartment complex. But it is unlikely to have much long-term impact on environmental enforcement that cannot be cured with more specific jury instructions.

Featuring pre-colloquia workshops on ecosystem services on Saturday and global environmental law clinics on Sunday, the Tenth Annual Colloquium of the IUCN Academy of Environmental Law is less than a week away. The official opening will occur on Sunday with a bullpen party and informal reception at Camden Yards followed by the Baltimore Orioles/Cleveland Indians major league baseball game. (I find that taking foreigners to a baseball game is a great way to expose them to U.S. culture). The Colloquium now has more than 300 people registered for it. It will feature presentations by people from nearly three dozen countries and nearly 100 universities. A Colloquium program is available online at http://www.iucnael.org/en/iucnaelorg-academy-events/220-the-10th-annual-colloquium-of-the-iucn-academy-of-environmental-law.html The Colloquium also will feature an opening dinner at the National Aquarium in Baltimore with a keynote address on “Global Environmental Law at a Crossroads” by Georgetown Professor Edie Brown Weiss. In addition the Colloquium will include an international environmental law film festival, a winetasting, a field trip to the Patuxent National WIldlife Refuge, a crab cruise on Baltimore Harbor during the 4th of July fireworks and a post-colloquium program at the World Bank in Washington.

Monday, June 18, 2012

Rio+20 Conference, REACH Adds New Chemicals, Maryland Colloquium (by Bob Percival)

I arrived in Rio de Janeiro on Wednesday morning to participate in some of the side events prior to the UN’s Rio+20 Conference on Sustainable Development. Beginning with the Stockholm Conference on the Human Environment in 1972, representatives of the nations of the world have been gathering every ten years for UN-sponsored “Earth Summits”. This year’s gathering is called “Rio+20” because it is being held at the site of the most successful such summit in 1992. Ten years ago in Johannesburg the World Summit on Sustainable Development highlighted the disappointing progress since the 1992 Rio Earth Summit.

The mood among environmentalists in Rio this year is decidedly gloomy. This is illustrated by the fact that one of the most prominent initiatives being promoted by environmental law professors is to have the conference endorse a “non-regression” principle - essentially to have the heads of state agree not to roll back previously established environmental protections. On Friday I attended the Rio+20 World Meeting of Environmental Lawyers at the Rio De Janeiro Botanical Garden Institute. This is where the opening ceremonies of the 2007 IUCN Academy of Environmental Law Colloquium were held. During the conference opening ceremonies Environmental Law Institute (ELI) President John Cruden announced that ELI is planning to launch a new initiative to support judges hearing environmental cases throughout the world through a virtual judges’ institute. Brazilian Supreme Court Justice Antonio Herman Benjamin discussed the glass-half-full/glass-half-empty status of environmental law around the world. While initial high expectations for environmental law have not been fulfilled, the field has matured in just 40 years, spurred the inclusion of public participation requirements in administrative law, and has led some court to create innovative vehicles for the representation of future generations in legal cases.

On Saturday June 16, I spoke on the opening plenary session of a Conference on Environmental Law and Justice that was held at the Supreme Court of Rio de Janerio. The Supreme Court has a spectacular new building adjacent to their historic old quarters in the metro area of downtown Rio de Janeiro. Sydney University Professor Ben Boer noted the gloomy projections of the OECD’s March 2012 report on the “Environmental Outlook to 2050: The Consequences of Inaction.” Professor Branca Martins da Cruz from the University of Oporto noted that Portugal has abolished its state environmental agency and folded its duties into the Ministry of Agriculature. Eckard Rehbinder from Goethe University noted that environmental law has established generally recognized principles such as the precautionary principle, the polluter pays principle, concern for environmental justice, the non-regression principle, and the notion of substituting inherently safer products for more dangerous ones. While some argue that the present structure of Western democracy is not well-suited to solving multi-generational environmental problems, Prof. Rehbinder argued for the reinterpretation of the principle of sustainability to support reduced consumption of energy, not simply more efficient use of it. Phillippine environmental activist Antonio Oposa argued that we should replace the terms “developed” and “developing” countries with “over-consuming” and “under-consuming” countries.

In my presentation I discussed the blurring of traditional lines between national and international environmental law and private and public law and the emergence of “global environmental law.” The notion of a shift away from primary emphasis on comprehensive international treaties to more “bottom-up” approaches seemed to be widely endorsed by other speakers. The Natural Resources Defense Council (NRDC) and other influential groups have endorsed the notion of countries making voluntary commitments - an effort to stimulate a kind of “race to the top.” More than 280 such commitments had been made by last Saturday. In the afternoon a panel discussed implementation of the Convention on International Trades in Endangered Species (CITES) and the Convention on Biological Diversity. Professor John Bonine of Oregon gave a terrific presentation on access to information. University of Limoges Professor Michel Prieur gave a terrific presentation on the intellectual roots of the “non-regression” principle. Justice Syed Mansoor Ali Shah of the High Court of Lahore, Pakistan strongly endorsed John Cruden’s notion of a virtual protal to provide information about environmental cases to judges around the world.

The actual Rio+20 conference is scheduled for June 20-23. There remain substantial disagreements over the language of documents to be signed when the heads of state gather for this conference. Some developing countries are seeking to repudiate commitments they previously made and some developed countries are opposing efforts to endorse new social and environmental rights and the non-regression principle.

Today the European Union added 13 chemicals to its list of “substances of very high concern” under its Registration, Evaluation & Assessment of Chemicals (REACH) program. Two of the chemicals - 1,2 dimethoxyethane and 1,3,5-Tris (TGIC) -- are among the chemicals prioritized by the U.S. EPA for risk assessment.

The University of Maryland is hosting the IUCN Academy of Environmental Law’s Tenth Colloquium on July 1-5 (see countdown clock on opening page of this website). We are anticipating more than 200 participants from nearly 40 countries.

Tuesday, June 12, 2012

BP Settlement Talks Intensify, UNEP GEO-5, IEA Golden Rules for Fracking, Japan PM Endorses Reactor Restart (by Bob Percival

The Financial Times reports that negotiations between the federal government and BP to settle claims arising from the 2010 Deepwater Horizon oil spill are intensifying with the sides still $10 billion apart. BP reportedly is seeking a comprehensive settlement of all civil and criminal claims for $15 billion, while the U.S. Department of Justice (DOJ) is asking for $25 billion. Although BP has set aside $37.2 billion to cover liability from the spill, only $3.5 billion of that amount is to cover fines imposed by the government for violations of the Clean Water Act. Private plaintiffs have reached a settlement with BP, but the government actions are scheduled to go to trial on January 14, 2013. BP stock is still selling one third below the price it commanded prior to the spill. Guy Chazan & Ed Crooks, BP Seeks $15 Billion Spill Settlement, inancial Times, June 9, 2012, at 1.

Last Thursday the UN Environment Programme published its fifth edition of its Global Environmental Outlook (GEO-5), a report that is particularly timely given the upcoming Rio+20 Earth Summit. The report assessed the world’s progress in achieving 90 of its global environmental goals and found that significant progress had been made in pursuing only four of them. These four include: eliminating the production and use of substances that deplete the ozone layer, removal of lead from fuel, increasing access to improved water supplies and boosting research to reduce pollution of the marine environment. A copy of the UNEP report is available online at: http://www.unep.org/geo/pdfs/geo5/GEO5_report_full_en.pdf

The International Energy Agency (IEA) has published “Golden Rules for a Golden Age of Gas.” The report emphasizes that expanded production of natural gas from shale formations can provide significant environmental benefits when natural gas is substituted for dirtier fossil fuels. However, it also cautions that these benefits are only going to accrue if fracking is done in an environmentally responsible way. The report outlines best practices for conducting fracking operations in a manner designed to minimize environmental harm. The report is available online at: http://www.worldenergyoutlook.org/goldenrules/

Japanese Prime Minister Yoshihiko Noda has endorsed restarting two of the country’s nuclear reactors that have been shut down in the wake of the 2011 Fukushima Daiichi disaster. All 50 of the country’s nuclear reactors are currently offline in the wake of the disaster. While intense public opposition has blocked restart of the reactors, fears of severe power shortages reportedly have convinced some governors to support the restart.

Last Tuesday night I joined the Board of Directors of the Environmental Law Institute for their annual pre-board meeting dinner. Board member Phyllis P. Harris gave a wonderful talk about the career path that led her to become Vice President for Environmental, Safety & Health Compliance at the Wal-Mart Corporation. On Tuesday June 12 I leave for Rio de Janeiro where I will be participating in a pre-Rio+20 program on January 16 at the Supreme Court of Rio de Janeiro.

Monday, June 4, 2012

Constitutional Workshop, TEL Journal, Public Trust Climate Suite Dismissed, IUCN Colloquium Program, 9th Circuit ESA Decision (by Bob Percival)

Last Thursday May 31 visiting Chinese law professor Zhao Huiyu and I participated in a wonderful workshop on Constitutional Environmental Rights at Widener University School of Law in Wilmington, Delaware. The conference was organized by Widener professors Jim May and Erin Daly who have co-authored a book on Environmental Rights and Constitutional Protections to be published by Cambridge University Press. The topic was of particular interest to me because I have long taught both environmental and constitutional law. A decade ago I presented Lewis & Clark’s annual distinguished lecture on “Greening the Constitution - Harmonizing Environmental and Constitutional Values,” which resulted in an article on the topic that is available online at: http://digitalcommons.law.umaryland.edu/fac_pubs/439/. At the Widener conference I gave an opening talk on the emergence of global environmental law with emphasis on how nearly every country whose constitution has been revised in recent years has added an environmental rights provision. Although the U.S. Constitution, the oldest written constitution in the world, makes no reference to the environment, it has proven remarkably adaptable to support the U.S. federal regulatory infrastructure to protect the environment. Harvard professor Mark Tushnet presented an introduction to comparative constitutional law. Appearing by Skype, Tulane law professor Oliver Houck and University of Connecticut professor Angel Oquendo discussed comparative trends in constitutional adjudication of environmental rights. SUNY Buffalo professor Jessica Owley discussed the public trust doctrine and state constitutional law.

On June 1 Judge Robert Wilkins of the U.S. District Court for the District of Columbia dismissed one of the public trust lawsuits to redress climate change brought by the group Kids v. Global Warming and Wildearth Guardians. The lawsuit had sought an injunction requiring federal agencies to mandate six percent annual reductions in emissions of greenhouse gases. Judge Wilkins concluded that the public trust doctrine is a matter of state, and not federal, law and that even if it were a matter of federal law it would be displaced by the Clean Air Act in light of the U.S. Supreme Court’s June 2011 American Electric Power decision. A copy of this decision in Alec L. v. Jackson is available online at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv2235-172.

Cambridge University Press has published the first edition of its new Transnational Environmental Law Journal. The TEL journal focuses on the subject of this blog - global environmental law. The editors-in-chief of the journal are Thijs Etty from the VU University of Amsterdam and Veerle Heyvaert from the London School of Economics and Political Science. I accepted their invitation to be on the Advisory Board of this journal. The terrific inaugural issue features invited articles by a dozen of the top environmental law scholars in the world. In my talk at Widener I particularly called attention to Doug Kysar’s marvelous article on “Global Environmental Constitutionalism: Getting There from Here,” 1 TEL 83 (2012). Kysar argues that the way to restore conceptual coherence and normative priority to environmental law is to adopt a new constitutionalism that gives foundational importance to the interests of present and future generations, the global community, and other forms of life. For more information about the Transnational Environmental Law journal, visit http://www.journals.cambridge.org/TEL.

It is now less than four weeks before the opening of the Tenth Colloquium of the IUCN Academy of Environmental Law. The University of Maryland Carey School of Law will be hosting the Colloquium from July 1-5. Last week we released the initial draft program that features more than 150 presentations from environmental law scholars from more than 30 countries. A copy of the program is available online at: http://www.law.umaryland.edu/faculty/conferences/conf115/IUCN_programme.pdf The Colloquium’s theme is “Global Environmental Law at the Crossroads.” It will feature pre-Colloquium workshops on ecosystem services and environmental law clinics, an opening plenary program dissecting what happened at the Rio+20 Earth Summit, an outing to an Orioles/Cleveland Major League Baseball game, an opening dinner at the National Aquarium with a keynote address from Georgetown’s Edie Brown Weiss, an international environmental film festival and winetasting, a crab cruise on Baltimore Harbor to watch the July 4th fireworks, a field trip to a national wildlife research center and a special post-Colloquium program and reception at the World Bank with a keynote address by Ignacia Moreno, Assistant Attorney General for Environment and Natural Resources.

Last week an en banc panel of the U.S. Court of Appeals for the Ninth Circuit reversed a panel decision that had allowed the U.S. Forest Service to approve suction dredging for gold mining operations on the Klamath River without consulting with federal wildlife agencies under Section 7 of the Endangered Species Act (ESA). The 7-4 decision in Karuk Tribe v. U.S. Forest Service is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf. One notable feature of the decision is a harshly ideological dissent attacking environmental regulation that includes a sketch from Gullivers Travels.