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.