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, September 23, 2012

Kivalina Decision, Russell Train's Passing, House "War on Coal" Bill, Brazil Mining Proposal (by Bob Percival)

On Friday September 21 the U.S. Court of Appeals for the Ninth Circuit dismissed a climate change public nuisance suit seeking damages to relocate an Alaskan village disappearing due to sea level rise. In Native Village of Kivalina v. ExxonMobil Corporation the village sued 22 oil , energy and utility companies, alleging that they had contributed to global warming and climate change which was causing the sea level rise. In 2009 federal district judge Saundra v. Armstrong dismissed the case as a non-justiciable political question. The appellate panel affirmed the dismissal, but on the narrower ground that the Clean Air Act had displaced the federal common law of nuisance concerning emissions of greenhouse gases (GHGs), based on the Supreme Court’s June 2011 decision in American Electric Power v. Connecticut (AEP). A copy of the Ninth Circuit’s Kivalina decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2012/09/21/09-17490.pdf. In a concurring opinion District Judge Philip M Pro, sitting on the appellate panel by designation, argued that the plaintiffs also lacked standing to bring their lawsuit because they had failed to make sufficient allegations tying the defendants to their alleged injuries.

The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.

On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.

A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.

On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.

Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.

Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.

After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.

Sunday, September 16, 2012

Japan to Phase Out Nuclear Power, Hollande Rejects Fracking, India Cuts Fuel Subsidies, China Legal Reforms (by Bob Percival)

Last week Japan joined Germany in announcing that the country will phase out nuclear power. The Japanese government announced on September 14 that all 50 of its nuclear reactors will be shut down by the year 2040, nearly 20 years after the German phaseout is to be complete. The Japanese decision is particularly significant because the country had been the third largest nuclear generator with 30 percent of its electricity coming from nuclear power prior to the Fukushima Daiichi disaster. Prior to the accident, Japan had planned to increase its use of nuclear power to 50 percent of all electricity generation by 2030. Now that the government has announced a phaseout of nuclear power, it is believed that it will be easier to restart existing reactors, which will be allowed to operated until the end of their 40-year operating lives. Jonathan Soble & Javier Blas, Financial Times, Sept. 15/16, 2012, p. 3. Japan’s nuclear phaseout likely will increase demand for natural gas-fired plants and renewable energy sources, though China and the UK are planning significant expansions of nuclear power in their countries and it is not clear that Japan will stop work on nuclear powerplants already under construction. Guy Chazan & Pilita Clark, Financial Times, Sept. 15/16, 2012, p. 12.

France’s ruling party has promised to reduce the country’s reliance on nuclear power from 75 percent to 50 percent by closing 24 nuclear reactors by the year 2025. On September 15 French President Francois Hollande announced that the nuclear powerplant at Fessenheim would be closed. He also announced that he effectively would continue the country’s moratorium on hydraulic fracturing (“fracking”) by rejecting seven applications for shale gas exploration. Hollande cited “the heavy risk to health and the environment” from fracking in rejecting the applications. He also announced the creation of a national agency to protect biodiversity.

On September 13 India announced that it would significantly reduce the $34 billion it spends each year to subsidize the price of fuel. The goverment’s action is expected to raise diesel fuel prices to consumers by 14 percent. The move was taken as a measure to reduce the government’s large budget deficit to avoid a downgrade of the country’s credit rating to “junk” bond status.

On September 12 Professor Tan Hong of China’s National Judges College visited the University of Maryland Carey School of Law. He gave a terrific talk about recent legal reforms in China to a large and enthusiastic group of environmental and international law students. Tim Epp of EPA’s Environmental Appeals Board is hosting Professor Tan’s visit to Washington. Professor Tan discussed administrative cases filed when citizens challenge actions by local units of government. There are more than 1 million such cases filed each year with the most frequent category of cases being urban development followed by natural resources cases. Labor cases are the fourth (and fastest growing) category. Professor Tan noted that when China authorized intermediate courts to provide “off-site jurisdiction” by transferring cases from local courts who might favor local agencies to another jurisdiction within the region, the success rate of plaintiffs rose from 40 percent to 70 percent. One oddity is that Article 50 of China’s Administrative Procedure Law has been interpreted to bar mediation of administrative cases so that settlements are difficult. Professor Tan predicted that this provision would be amended. He also noted that the Standing Committee of the National People’s Congress has just amended the China’s Code of Civil Procedure to allow authorized organizations to bring public interest litigation in environmental cases. China’s Ministry of Environmental Protection also recently announced that environmental impact assessments and government decisions concerning them will be made available to the public online.

Monday, September 10, 2012

Candidates on Climate Change, BP Spill Litigation, Arctic Drilling and Ice Melt, Benefits of Clean Air & Nanjing Judges (by Bob Percival)

In his acceptance speech at the Democratic National Convention, President Obama declared that “climate change is not a hoax” and that “more droughts and floods and wildfires” are “a threat to our children’s future.” In online replies to questions from scientists published at http://www.sciencedebate.org/debate12/, Republican candidate Mitt Romney seemed to backtrack on his acceptance speech by stating that: "I am not a scientist myself, but my best assessment of the data is that the world is getting warmer, that human activity contributes to that warming, and that policymakers should therefore consider the risk of negative consequences."

On September 5 the Justice Department filed a brief in connection with BP’s settlement of $7.8 billion in private civil claims. The brief argued that BP had engaged in gross negligence and willful misconduct in connection with the 2010 Gulf oil spill. The filing was designed to preserve the government’s ability to seek the maximum penalty of $21 billion against BP for gross negligence if settlement negotiations with the government fail.


Over the weekend Royal Dutch Shell began drilling the first pilot well in the Chukchi Sea off the northern coast of Alaska. It has taken Shell seven years and more than $4 billion to gain approval for the drilling. The well is in shallow water (only 130 feet deep), but it is estimated that any oil is 8,000 feet below the seabed. Shell will have to cease drilling for the season by September 24 when it will be only 1,400 feet down, but it expects to complete the well next summer. Shell has a second drill ship that will drill in the Beaufort Sea northeast of Alaska, but it has not been deployed yet in order to avoid interfering with whale migration. Environmentalists continue to maintain that Shell is ill-equipped to contain an oil spill int he arctic.

Last week the Arctic ice cap experienced more extensive melting this summer than ever previously recorded. Scientists attributed the unprecedented thaw to both natural weather variations and the impact of global warming. The ice cap shrunk from more than 9 million square miles in March 2012 to 1.54 million square miles. This was 70,000 square miles less than the previous record low recorded in September 2007. The six lowest Arctic ice cap levels recorded have occurred during the last six summers. Melting of the Arctic ice cap can have significant effects on weather patterns, but it does not raise sea levels because the ice is floating over sea water and displaces the same amount of water when frozen as it releases when melted. Robert Lee Hotz, Record Ice Thaw in Arctic, Greenland, Wall St. J., Sept. 7, 2012, at A2. Concern about sea level rise has focused on this summer’s commencement of dramatic melting over nearly the entire Greenland ice cap, including at the highest elevations of this land mass.

On September 7, 2012, the U.S. and Canada amended their bilateral agreement concerning environmental protection of the Great Lakes. This is the third time the 1978 agreement has been amended with the previous amendments being made in 1983 and 1987. EPA’s website describes the amendments in the following terms: “The updated Agreement facilitates United States and Canadian action on threats to Great Lakes water quality and includes measures to prevent ecological harm. New provisions address the nearshore environment, aquatic invasive species, habitat degradation, and the effects of climate change. It also supports continued work on existing threats to people's health and the environment in the Great Lakes basin such as harmful algae, toxic chemicals, and discharges from vessels.” A copy of the amended agreement is available online at: http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf

In his new book The Silent Epidemic: Coal and the Hidden Threat to Health, which is being published this month by MIT Press, Professor Alan H. Lockwood of the University of Buffalo notes that the Clean Air Act has prevented more than 180,000 deaths per year, a number that may increase by 2020 to 230,000 avoided deaths per year. This will produce an estimated $22 trillion in net benefits, a number that is more than 40 times greater than estimates of compliance costs. Lockwood estimates that this has saved the federal government so much in federally-funded health costs that the feds could have paid for all compliance costs and still have come out ahead. A summary of the study is available online at: http://www.theatlantic.com/health/archive/2012/09/how-the-clean-air-act-has-saved-22-trillion-in-health-care-costs/262071/

On Tuesday September 4 I presented a two and a half hour lecture to a group of twenty judges from the Intermediate People’s Court of Nanjing Province, China. The judges are in the U.S. on a training program sponsored by the Chinese government and the Maryland China Initiative that is based at the University of Maryland at College Park. The judges were a truly exceptional group who asked some of the best questions I have ever received from a visiting foreign delegation. We had a lively discussion of how China can improve its environmental laws, the importance of citizen suits, and political pressure as a defense tactic.

On Thursday September 6 I presented a paper on the common law of interstate nuisance in the wake of the Supreme Court’s 2011 American Electric Power decision at the first Legal Theory Workshop of the year at Maryland. I greatly appreciated the comments of my colleagues on the paper. The paper, entitled “Of Coal, Climate and Carp: Reconsidering the Federal Common Law of Interstate Nuisance,” focuses on North Carolina’s state common law nuisance litigation against the TVA’s upwind coal-fired powerplants, the Supreme Court’s decision in American Electric Power v. Connecticut, and efforts to use federal common law to stop the spread of invasive species of Asian carp to the Great Lakes.

On Thursday night I went with Maryland Dean Phoebe Haddon, Maryland Professor Bob Condlin and Georgetown Professor Phil Schrag to a sold-out Camden Yards for the most important baseball game of the year for the Baltimore Orioles. Until baseball came to Washington, D.C. in 2005, I had been an Orioles season ticket holder for nearly 25 years and a Yankee fan for more than four decades. I then became a Washington Nationals season ticket holder (since I live in D.C.) and a passionate fan of the Nats. The Orioles defeated the Yankees 10-6 by hitting six home runs in the game (incredibly a feat the Nats accomplished at home for the first two times on Tuesday and Wednesday). The victory tied the Os with the Yankees for first place in the American League East. After seven years without a winning record, this has been a dream season in which the Nats currently have the best record in all baseball with less than four weeks left in the season. A beltway World Series next month between the Nats and the Orioles would be a cherished dream to baseball fans in the Baltimore/Washington area.

Sunday, September 2, 2012

U.S. Raises Fuel Economy Standards, Belo Monte Construction Resumes, Romney Attacks Obama on Climate Change, EDF Denied Nuclear License (by Bob Percival)

Last week the U.S. Environmental Protection Agency (EPA) and the National Highway Transportation Safety Administration (NHTSA) adopted final rules nearly doubling the fuel economy standard for new cars and trucks sold between 2017 and 2025. The new standard will require these vehicles to achieve a corporate average fuel economy of 54.5 miles per gallon. This brings the U.S. more in line with tough fuel economy standards in the European Union and China, which will remain slightly more stringent than standards in the U.S. The new U.S. standards are projected to reduce U.S. consumption of oil by two million barrels per day and to reduce emissions of greenhouse gases by the equivalent of one full year of emissions. The standards are expected to raise the average cost of new vehicles by $1,800 per vehicle, a cost quickly offset by the savings in fuel costs. While auto dealers and some Republican politicians criticized the new standards, they previously had been endorsed by 13 major automakers, though Volkswagen complained that the rules on fuel economy for light trucks created an unfair advantage for U.S. manufacturers.

Last week the Supreme Court of Brazil lifted a lower court order that had halted construction on the 11,000MW Belo Monte dam project on the Xingu River, an Amazon tributary. The lower court had ruled that the Brazilian government had failed to comply with the requirement that indigenous communities be consulted prior to a decision approving the project (see August 19, 2012 blog post). The Brazilian high court noted that its decision was preliminary and could be revised after a “more detailed analysis of the merit of the case.” The Brazilian government hailed the ruling, maintaining that it avoids “major and irreparable damage to the economy, to public property and to the country’s energy policy.”

Near the conclusion of his acceptance speech at the Republican National Convention, nominee Mitt Romney stated: “President Obama promised to begin to slow the rise of the oceans and heal the planet. MY promise...is to help you and your family.” Particularly now that the deleterious effects of global warming and climate change already have become manifest, it is hard to see why healing the planet does not also help “you and your family.”

The Atomic Safety and Licensing Board of the U.S. Nuclear Regulatory Commission (NRC) has denied an application by Electricity de France (EDF) to build a new nuclear reactor at Calvert Cliffs on the western shore of the Chesapeake Bay in Maryland. The reason for the denial is that existing regulations bar foreign companies from controlling U.S. nuclear power plants. If EDF finds a U.S. partner for the project within 60 days it may move the NRC to reopen the licensing proceeding. EDF’s failure to find a U.S. partner is widely viewed as a result of falling natural gas prices that have made it far more economic to invest in gas-fired power plants. Ed Crooks, America Denies EDF Nuclear Reactor License, Financial Times, Sept. 1/2, 2012, at 8.