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, August 26, 2012

Dodd-Frank Regs Issued, EPA Air Transport Rule Struck Down, Auditor Reports Foxconn Progress, Australia & U.S. Courts Diverge on Tobacco Labeling (by Bob Percival)

On Wednesday August 22 the U.S. Securities and Exchange Commission (SEC) approved regulations to implement the conflict minerals provisions of § 1502 and the payment to foreign government provisions of § 1504 of the Dodd-Frank Wall Street FInancial Reform Act. The conflict minerals regulations, which were adopted by a 3-2 vote, require companies using certain minerals that have helped fund rebel groups in the Congo to describe the “due diligence” they undertook to determine the actual source of such minerals. They provide companies with a two-year grace period during which they may report that they use minerals that are “conflict undeterminable”. By requiring greater focus on where commodities used by major companies come from, these rules eventually could spur corporations to devote more attention to greening their supply chains.

The § 1504 rules require oil, gas and mining companies to disclose payments made to foreign governments. The extractive industries lobbied hard to forestall the regulations, but the SEC commissioners ultimately approved them on a 2-1 vote with two commissioners recusing themselves. The companies actually proposed what opponents dubbed the “dictator’s veto” that would have exempted reporting if the government that received the payments objected. The SEC did not adopt this proposal. Noting that reporting of payments to foreign governments has been rare, Transparency International hailed the new regulations. The European Union is considering adopting similar regulations. A vote is likely to be held in the European Parliament next month. For a powerful op-ed supporting disclosure by the former head of Libya’s national oil company, see Najwa al-Beshti, “A Libyan’s Plea to the S.E.C. on Oil Industry Transparency,” New York Times, Aug. 17, 2012, online at: http://www.nytimes.com/2012/08/18/opinion/a-libyans-plea-to-the-sec-on-oil-industry-rules.html

By a 2-1 vote the U.S. Court of Appeals for the D.C. Circuit again struck down EPA’s long-running efforts to regulate transboundary air pollution. The decision in EME Homer City Generation, L.P. v. EPA struck down the Cross-State Air Pollution Rule (CSAR) that EPA promulgated in August 2011 to replace the Clean Air Interstate Rule (CAIR) that previously had been struck down by the Court. The CSAR, referred to by the court as the Transport Rule, would have restricted emissions of sulfur dioxide and nitrogen oxides primarily from coal-fired power plants in 28 states, preventing as many as 34,000 deaths. Because the decision means that many coal-fired power plants that were slated to close in the near future may have their lives prolonged it sparked a rally in the stock market in companies that produce coal. The court majority faulted EPA for not calculating more precisely exactly how much each upwind state contributes to non-attainment in downwind states. EPA instead had calculated emissions floors that would avoid transboundary interference, but the court majority feared this could lead to some states having to control pollution more than absolutely necessary.

The Fair Labor Association, which has conducted an independent audit of Apple’s supply chain, reported last week that Apple and its largest supplier Foxconn have improved working conditions in its Chinese plants. Working hours have been reduced from 80 hours per week to between 48 and 60 hours per week and the companies generally are carrying out commitments made in response to an earlier audit.

Less than two weeks after Australia’s high court upheld Australia’s regulations requiring graphic warning labels on tobacco products, a U.S. court has invalidated similar regulations issued by the U.S. Food and Drug Administration (FDA). On August 24, the U.S. Court of Appeals for the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA regulations, which were mandated by Congress in the Family Smoking Prevention and Tobacco Control Act, violated the companies’ First Amerndment free speech rights.

On Friday August 24 Maryland’s Environmental Law Program made its annual summer outing to Camden Yards. Environmental Clinic Director Prof. Jane Barrett, Prof. Mike Pappas and his wife Tanya, Program Managing Director Bill Piermattei, clinic fellows, and summer research assistants attended the game between the Orioles and the Toronto BLue Jays. Oriole designated hitter Chris Davis homered in each of his first three at bats, powering the Os to a 6-4 victory.

Photos of my recent trip to China with students from my class in Comparative China/U.S. Environmental Law have been posted in a new “Photo Albums” section of my parallel website at: globalenvironmentallaw.com. Simply click on the “Photo Albums” link at the top of the page on the website. On Tuesday August 21 Aspen Publishers released my 2012-13 Environmental Law: Statutory and Case Supplement. It contains not only an updated version of all the major federal environmental statutes, but also key recent environmental decisions by the U.S. Supreme Court and the D.C. Circuit’s June 26 decision upholding EPA’s regulation of greenhouse gas emissions.

Tuesday, August 21, 2012

China Trip, U.S. GHG Emissions Plunge, Arctic Drilling, China Auto Recall, Belo Monte Dam Halted, Gibson Guitar Settlement (by Bob Percival)

I returned from China on Thursday night after completing a terrific environmental field trip with students from my Vermont summer course in Comparative China/U.S. Environmental Law. On Tuesday August 14 we visited the offices of the Allbright law firm in the Citigroup Tower across the Huangpo River in Pudong. The firm has more than 400 lawyers and offices in Shanghai, Beijing, Hangzhou, Nanjing, Shenzhen, and Suzhou. It is the largest Chinese law firm in the country. Dr. Ke Chen, Mr. Jie Zhu and two associates met with us to discuss the work of the firm. Dr. Chen made a fascinating presentation about the challenges of practicing law in China. He noted that one of his most significant accomplishments has been to arrange the financing for the new generation of nuclear power plants that are being built in China. The plants use a new reactor designed by Westinghouse that is supposed to be much safer than previous designs (“the robot shoots itself” is how he described the automatic shutdown that occurs when unusual events occur).

Following our meeting, Mr. Zhu and the associates took us to lunch in the canteen in the basement of their building. After lunch we walked a few blocks to the World FInancial Center, the tallest building in China for now. The students and I went to the 101st floor observation deck where we had a spectacular view of Shanghai.

On Wednesday August 15 we visited the Shanghai offices of Roots and Shoots, the environmental organization founded by Jane Goodall. Roots and Shoots Shanghai is one of the few non-profit organizations officially registered with the Chinese government. Zhenxi Zhong, the office’s executive director, gave us a terrific presentation about the group’s work promoting environmental education in China. The group recently completed a project to plant 1 million trees in Inner Mongolia two years ahead of schedule.

We then traveled to Zhongshan Park where we were hosted for lunch at the Royal Garden Restaurant by faculty from the East China University of Political Science and Law. Joining us for lunch were Dr. Gengyun Gu, the vice rector of the university, Guoxing Xiao, who teaches energy law, Prof. Yang Qu, and two students. Following lunch we took a brief tour of the university campus, which adjoins Zhongshan Park. We then went to the Shanghai government’s Energy Conservation Center where we saw demonstrations of new technologies to use energy more efficiently. A photo album from our trip will be added to this website shortly.

The U.S. Energy Information Administration reported last week that greenhouse gas (GHG) emissions in the U.S. plunged by 5.8% in 2009 below 2008 levels from 6,983 to 6,576 million metric tons carbon dioxide equivalent. This was the largest annual drop since GHG emissions have been measured beginning in 1990. The agency gave three reasons for the decline: “an economy in recession, a particularly hard-hit energy-intensive industries sector, and a large drop in the price of natural gas that caused fuel switching away from coal to natural gas in the electric power sector.” A copy of the report is available online at: http://www.eia.gov/environment/emissions/ghg_report/

Last week Greenpeace and the Worldwide Fund for Nature issued a report warning that drilling for oil in the Pechora Sea in the Russian arctic could have disastrous consequences due to the inability to respond effectively to an oil spill in such a remote region. Russia’s state-owned oil company Gazprom has begun drilling in the area from its Prirazlomnaya offshore platform. Shell meanwhile continues to face delays in its efforts to commence drilling in the Arctic off the northern coast of Alaska.

China’s two largest exporters of automobiles - Chery Automobile and Great Wall Motor - were forced to recall most of their vehicles sold in Australia because of the discovery of asbestos contamination in the cars. Asbestos use has been banned in Australia since 2004, but it is still permitted in China.

The long-running battle over construction of the $17 billion Belo Monte dam on the Xingu River, an Amazon tributary in Brazil, entered a new phase last week when a Brazilian court ordered that construction work be suspended. The court ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project.

Two weeks ago the Gibson Guitar Corp. agreed to settle charges that it had illegally imported wood from Madagascar and India in violation of the Lacey Act. Gibson agreed to pay a $300,000 penalty and to make a $50,000 community service payment to the U.S. National Fish and Wildlife Foundation in order to avoid prosecution for the violations. The company also withdrew its claim for return of $262,000 of wood seized by federal authorities during a raid last year on the company’s factories in Tennessee. The Lacey Act makes it a federal crime to import wood taken in violation of the laws of the country of origin.

Saturday, August 18, 2012

Delayed Aug. 12 Blog Post: China Trip, UN Criticizes Ethanol Mandate (by Bob Percival)

This is the blog post I posted on August 12 on my parallel website at: www.globalenvironmentallaw.com. I was unable to post it here until returning from China because blogspot apparently was block in China.

I have been in China for the past week with a group of four students from my summer Vermont Law School class in Comparative China/U.S. Environmental Law. On Wednesday August 7 we visited the Beijing offices of the Natural Resources Defense Council (NRDC). Bernadette Brennan, who directs the office’s environmental law program, gave us a wonderful presentation on NRDC’s work in China. The group focuses on environment, energy, climate, and urban development issues. She explained that most of the environmental litigation in China actually has been brought on behalf of private individuals, but that the first genuine public interest suit was filed late last year by Chinese environmental groups suing a factory that had dumped chromium in a river. We also discussed NRDC’s Pollution Information Transparency Index (PITI) that rates more than 100 Chinese cities on how well they are doing in providing the public with access to environmental information.

On Thursday August 8 we visited the Center for Legal Assistance to Pollution Victims (CLAPV) near the campus of the China University of Political Science and Law (CUPL), where I taught as a Fulbright scholar during the spring semester 2008. CLAPV’s director Wang Canfa was in Cambodia, so we were hosted by Professor Hu Jing, who had been a visiting scholar at the University of Maryland School of Law during the 2005-06 academic year. We then visited the offices of China’s first private law firm devoted to plaintiffs’ environmental issues. Liu Jinmei, a lawyer with the firm, explained that Professor Wang and other prominent public interest environmental lawyers founded the firm to make it easier to bring certain cases in light of restrictions on litigation by organizations.

Following a lunch hosted by Professor Hu and Ms. Liu, we visited the Central University of Finance and Economics (CUFE) where Maryland has a student exchange program run by Professor Dan Mitterhoff. Professor Miterhoff gave us an informative presentation about the state of the Chinese legal system. He then introduced us to some of the students participating in the exchange program in which groups of Chinese students take their classes together with the students from other countries during the fall semester and then come to the U.S. for classes during the spring.

On Friday August 9 we visited the Great Wall at Mutianyu prior to catching a plane to Qingdao, a beautiful coastal city east of Beijing. Profess Yu Ming of Ocean University Law School met us at the airport in Qingdao and took us to a lovely hotel situated on a bluff above the beach. On Saturday August 10 Professor Yu led us on a hike across the beaches and around the peninsula to Little Fish Hill where we had stunningly beautiful views of the city. After a visit to a former civil air defense bomb shelter that has been converted into shopping mall, we had lunch at a wonderful family restaurant that Professor Yu has long patronized. We then went to Beer Street and toured the Beer Museum at the Tsingtao Factory. Surprisingly, an entire room of the museum was devoted to environmental issues in light of the fact that Tsingtao had been declared the top of the 100 green companies in China. The exhibits included a shrine to Rachel Carson and information on the history of global environmental law.

In the evening we visited the Qingdao Olympic Sailing Center where the sailing events had been held during the 2008 Beijing Olympics. Dean Xu of Ocean University then hosted us for a wonderful dinner at a hotel just across from the site of the Qingdao International Beer Festival, which had just opened. After dinner we went to the festival, which featured some amazing sights, including many people standing on tables, dancing, and spraying pitchers of beer on each other.

On Sunday August 12 we flew from Qingdao to Shanghai. On Sunday night we met Marcus and Derrick Wang at the Hyatt’s Vue Bar. Marcus, who graduated from Maryland in 2009, is now director of business development in Shanghai for Under Armour, the Maryland-based athletic apparel company. His brother Derrick, a former student of mine, is currently a 3L at Maryland and an accomplished pianist and composer.

On Monday August 13 we visited the offices of the Shanghai Academy of Environmental Sciences (SAES). I made a presentation to the Academy on the history of air pollution control. SAES has been given the responsibility of monitoring air pollution in Shanghai and developing a strategy to control it by determining its precise sources. Dr. Changhong Chen, Director of SAES’s Atmospheric Environment Institute, gave us a tour of the Air Pollution Observation and Experiment Base and demonstrated how their highly sophisticated air pollution monitoring equipment works. After the visit to SAES, Professor Ying-ge Ma gave us a tour of the nearby Giulin Gardens.

We are so appreciative of everyone who has helped make this trip such a terrific success, in particular Professor Zhao Huiyu of Shanghai Jiaotong University Law School who helped organize the Shanghai portion of the trip, and Professor Yu Ming from Ocean University Law School who hosted us in Qingdao. Today we will tour a Chinese law firm in Pudong and tomorrow we will visit faculty from the East China University of Politics and Law and the Shanghai Government’s Energy Conservation Center.

We have been so busy on our China trip that it has been difficult to keep up on environmental news from around the world. Last week a United Nations official urged the U.S. to suspend the federal mandate to increase ethanol production because of surging global corn prices in the wake of the drought afflicting the U.S. Jose Graziano da Silva, director-general of the UN’s Food and Agriculture Organisation, has warned that the federal mandate to produce more ethanol could divert as much as 40% of U.S. corn production into fuel, harming world food supplies. Various groups in the U.S. also are petitioning EPA to waive the ethanol mandate. Javier Blas & Gregory Meyer, UN Urges US to Cut Ethanol Production, Financial Times, Aug. 9, 2012.

Aug. 5th Delayed Blog Post: Extreme Weather & Climate Change, EU Aviation Cap & Trade, Brazilian Court Enjoins Chevron and Transocean, ABA annual meeting, China trip (by Bob Percival)

THis is a copy of my Aug. 5 blog post that I posted on my parallel blog at www.globalenvironmentallaw.com. I was unable to post it on blogspot until now because I was in China where blogspot is blocked.

Dozens of homes near Oklahoma City burned last week as extreme drought and temperatures reaching 113 degrees Fahrenheit fueled devastating wildfires. Climate scientist James Hansen, published a paper last week linking global warming and climate change to an increase in the frequency of extreme weather events. The study, “Perception of Climate Change,” is published in the Proceedings of the National Academy of Sciences, is available online at: http://www.pnas.org/content/early/2012/07/30/1205276109. This is an excerpt from the abstract: “The distribution of seasonal mean temperature anomalies has shifted toward higher temperatures and the range of anomalies has increased. An important change is the emergence of a category of summertime extremely hot outliers, more than three standard deviations (3σ) warmer than the climatology of the 1951–1980 base period. This hot extreme, which covered much less than 1% of Earth’s surface during the base period, now typically covers about 10% of the land area. It follows that we can state, with a high degree of confidence, that extreme anomalies such as those in Texas and Oklahoma in 2011 and Moscow in 2010 were a consequence of global warming because their likelihood in the absence of global warming was exceedingly small.”

Last week the U.S. State and Transportation Departments hosted a meeting of 17 non-European nations to coordinate their opposition to the EU’s cap-and-trade program for emissions from airlines flying to and from the EU. On August 1 a Senate committee approved a bill forbidding U.S. airlines from participating in the program. Such legislation already has passed the House of Representatives. Delta, AMR and United Continental asked the Obama administration in a letter last week to file an Article 84 action with the International Civil Aviation Organizations (ICAO) to declare the EU program inconsistent with global aviation standards. Sixteen environmental groups sent a letter asking the administration not to file such a complaint, citing the need to curb aviation emissions of carbon, which now constitute 3% of global carbon emissions and which are projected nearly to double by 2025.

Last Tuesday a Brazilian appellate court ordered the Chevron Corporation and Transocean Ltd. to stop producing or transporting oil in Brazil within 30 days pending the completion of an investigation of a November 2011 oil spill in the Frade offshore oil field. The spill released only 3,700 barrels of oil from the seabed, but Brazilian authorities have reacted harshly, threatening criminal prosecution against Chevron executives. Transocean operates ten drilling platforms in Brazil, including seven for Petrobras, the now-publicly traded oil company formerly owned by the Brazilian government. The companies have vowed to challenge the injunction. Jeff Fick, Chevron, Transocean Halted in Brazil for Month, Wall St. J., Aug. 2, 2012, at B3.

Chevron is moving aggressively to buy land in Europe suitable for production of shale gas. It is estimated that Europe has 639 trillion cubic feet of recoverable shale gas, nearly as much as the United States, which is estimated to have 862 trillion cubic feet of such gas reserves. Chevron has purchased huge swaths of land from Bulgaria to Poland where it believes the potential for producing gas through hydrofracturing is the greatest. Environmental opposition to fracking may slow its use in Europe as France and Bulgaria have banned the practice and Romania and the Czech Republic also are considering bans. Chevron believes that Eastern Europe’s desire to reduce its reliance on gas from Russia ultimately will tip the balance in favor of fracking. Guy Chazan, Oilmen Hope to Carry Shale Revolution Across the Pond, Financial Times, Aug. 3, 2012, at 14.

Last Thursday I finished my last Comparative China/U.S. Environmental Law class at Vermont Law School. On Friday I flew to Chicago where I participated on a panel at the ABA Annual Meeting on “Overriding the Experts: Executive Rejection of Administrative Agency Expertise.” The panel was moderated for the ABA’s Administrative Law Section by Professor James O’Reilly of the University of Cincinnati. Also participating on the panel were Ralph Tyler of Venable LLP, who discussed political intervention into the FDA’s Plan B decision, and University of Akron Professor Katherine Van Tassel who gave an excellent overview of the history of the issue.

I have just arrived in Beijing where I will be spending the next two weeks taking four of my Vermont students on an environmental law field trip. As usual when I am in China I may not be able to make postings on one or the other of my blogs, the reason I publish parallel blogs.