Three days of sometimes violent protests have convinced Chinese authorities to halt the $8.8 billion expansion of a Sinopec petrochemical plant in Ningbo, China. The protests began last week with farmers blocking roads leading to the existing chemical plant. Ma Jun, director of the Institute of Public and Environmental Affairs in Beijing, stated that “We’ve seen the same pattern over and over again. Ignoring public concerns leads to confrontation. We can’t resolve all our environmental issues through street action. The cost is just too high.” Andrew Jacobs, Protests Over Chemical Plant Force Chinese Officials to Back Down, N.Y. Times, Oct. 28, 2012.
In a white paper released last week, the Chinese government revealed that it is reducing the pace of its expansion of nuclear power. The government now forecasts that it will have 40 gigawatts of installed nuclear power capacity by 2015, instead of the previous target of 50 gigawatts. That still represents an ambitious expansion from the 12.54 gigawatts of nuclear power installed at the end of 2011. Following the Fukushima Daiichi disaster in March 2010, China imposed a six-month moratorium on nuclear power construction, which has now resumed. But international and Chinese regulators had expressed concern that China was expanding the use of nuclear power so rapidly that there would not be enough qualified personnel to operate the plants safely. China’s decision to delay construction of some of the reactors in seven inland provinces may be a response to these concerns. Keith Bradshear, China Slows Development of Nuclear Power Plants, N.Y. Times, Oct. 25, 2012, at B9.
Dominion Corporation announced last week that it will decommission its 556 MW Kewaunee nuclear power plant located in Wisconsin. The decision was surprising because the plant received a 20-year extension of its operating license from the Nuclear Regulatory Commission in February 2011. Dominion tried to sell the plant, but was unsuccessful, an indication of how the plunging price of natural gas and the Fukushima Daiichi disaster have reduced interest in nuclear power in the U.S. Kewaunee will be the first U.S. nuclear reactor retired since Connecticut’s Millstone 1 was shut down in July 1998. Matthew L. Wald, Wisconsin Nuclear Reactor to Be Closed, N.Y. Times, Oct. 23, 2012, at B1.
An article published in Science magazine on Friday reports that 40 percent of the fish caught off the Japanese coast where the Fukushiima Daichii nuclear disaster occurred in March 2010 still have levels of cesium in excess of what the Japanese government considers to be safe. Ken O. Buessler, Fishing for Answers Off Fukushima, 338 Science 480 (2012). The contamination is believed to be the result of cesium in the seabed that could contaminate fish for decades even though radioactivity readings in the water column are now at safe levels. Approximately 80 percent of of the radioactivity released in the nuclear accident is believed to have entered the sea. Hiroko Tabuchi, Fish Off Japan’s Coast Said to Contain Elevated Levels of Cesium, N.Y. Times, Oct. 26, 2012, at A4.
On Friday October 26 China’s Supreme People’s Court heard a lawsuit brought by an American wind energy company, American Superconductor (AMSC), alleging that China’s largest vendor of wind turbines, Sinovel Wind Group, Ltd., stole its intellectual property. Sinovel is appealing two lower courts’ refusal to dismiss AMSC’s lawsuit. AMSC alleges that a former employee stole its software secrets and gave them to Sinovel, which quickly stopped paying AMSC for access to it. Keith Johnson, China to Weigh Corporate-Spy Case, Wall St. J., Oct. 26, 2012, at B3.
A trash haulers strike in Bangalore, India, has left the home of many of the country’s high-tech industries drowning in garbage Trash has not been collected for several weeks in what was once known as India’s Garden City. The crisis has exposed India’s poor regulation of landfills and extensive midnight dumping that has contaminated many sites where garbage is dumped in the country. Gardiner Harris, India’s Plague, Trash, Drowns Its Garden City During Strike, N.Y. Times, Oct. 27, 2012, at A4.
At the November 6 election California voters will decide whether to adopt Proposition 37, which would require labeling of products containing genetically modified organisms (GMOs). Proponents of the measure argue that the public should have a right to know whether products contain GMOs, while opponent argue that GMOs are safe and labeling will stoke unreasonable public fears. Companies opposing Proposition 37 have raised $40.9 million, while companies supporting it have raised $6.4 million. It is estimated that 94% of the cotton, 93% of soybeans, 90% of canola, and 88% of the corn grown in the U.S. is genetically modified. Julie Jargon & Ian Berry, Dough Rolls Out to Fight ‘Engineered’ Label on Foods, Wall St. J., Oct. 26, 2012, at B1.
The Supreme Court’s Citizens United decision holding that corporations have a First Amendment right to spend money to influence elections has released of flood of corporate money in this year’s election campaign. In addition to funding political action ads, the decision also has allowed companies to tell their employees how they think they should vote to preserve their jobs. Most companies are buying into the false mantra that Obama is anti-business and that if Mitt Romney is not elected capitalism will be at risk. Brody Mullins, Oil Firms Fund Political Outreach to Employees, Wall St. J., Oct. 26, 2012, at A6. But see, Bradley A. Smith, The Dangers of an Informed Electorate, Wall St. J., Oct. 26, 2012, at A11. Last week the New York Times reported that a piece of climate change artwork so offended corporate contributors to the University of Wyoming that they forced its removal and got the university to agree to give them veto power over future art displays. Dan Frosh, Art That Irked Energy Executives Is Gone, but Wyoming Dispute Whirls On, N.Y. Times, Oct. 27, 2012, at A13.
I previously have criticized both presidential campaigns for deliberately ignoring climate change issues. New York Times reporter John Broder reports that foreigners are astonished at the lack of any serious discussion of climate change by the U.S. presidential candidates. He notes that President Obama, while campaigning in Iowa recently, did state that “climate change isn’t a hoax, The droughts we’ve seen, the floods, the wildfires, those aren’t a joke. They’re a threat to our children’s future. And we can do something about it.” John M, Broder, Candidates Agree World Is Warming, but Talk Stops There, N.Y. Times, Oct. 26, 2012, at A16.
Last week the testimonial phase was completed in the trial where our Environmental Law Clinic is representing the Riverkeepers against the Perdue Corporation for polluting the Chesapeake Bay with chicken waste. The trial judge has asked the parties to submit proposed findings of fact and conclusions of law and he has scheduled final oral arguments for November 30.
Hundreds of photos of last summer’s 10th Colloquium of the IUCN Academy of Environmental Law, which was held at Maryland, have been posted online at: (http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=115).
Sunday, October 28, 2012
Monday, October 22, 2012
Environment Absent from Presidential Debates, Keystone Pipeline Briefly Shut Down, Justice Yacoob, ACOEL (by Bob Percival)
During the second U.S. presidential debate between President Obama and former governor Mitt Romney on October 16 and the just-completed third debate on October 22, there was absolutely no discussion of climate change. Candy Crowley of CNN, moderator of the second debate, which employed a town hall format, stated after the debate that she had a questioner who was planning to ask a climate change question (“for all of you climate change people”), but she simply ran out of time. In the second debate the candidates did discuss oil and gas production with each accusing the other of being anti-coal, but there was no expression of concern for the environment. This contrasts with the 2008 presidential debates where both then-Senator Obama and Senator McCain expressed concern over climate change, while disagreeing over how much emphasis to put on increased fossil fuel production.
TransCanada’s Keystone pipeline that carries nearly 600,000 barrels of crude oil each day from Canada to the U.S. Midwest, was shut down on Wednesday October 17 after safety tests indicated potential problems. Since the 2,100-mile pipeline was opened in 2010 there have been more than a dozen minor leaks of oil from it. Ben Lefebvre & Chip Cummings, Pipeline Company Idles Keystone Temporarily, Wall St. Journal, Oct. 19, 2012, at B6. Environmentalists opposing the plan to construct the Keystone XL pipeline argue than it will be riskier because it will be carrying heavier, more acidic oil that will corrode pipes faster. The pipeline was restarted on the afternoon of Monday October 22 after some sections were excavated and inspected.
On Wednesday October 17, Rebecca Fenneman, general counsel of the Federal Maritime Commission (FMC), was a guest speaker in my Administrative Law class. Ms. Fenneman is a 1996 graduate of the University of Maryland School of Law. She joined a group of students for lunch prior to class to discuss her career path and the work of the FMC, which regulates maritime shipping into U.S. ports. Due to the importance of global maritime trade, the FMC is particularly active in interacting with government officials in other countries, including China.
On Thursday October 18 I had lunch with Justice Zac Yacoob of the Constitutional Court of South Africa. Justice Yacoob, who played a major role in South Africa’s transition to constitutional rule, was appointed to the court by Nelson Mandela in 1998. He is currently visiting Maryland as a distinguished scholar. Joining me at lunch was visiting Professor Zhao Huiyu of Shanghai Jiaotong University who indicated that Chinese legal scholars are particularly interested in South Africa as a model for how a transition to democracy can be affected. Justice Yacoob plans to visit my Environmental Law class on Wednesday October 24 when we discuss the concept of “judicial takings” and the U.S. Supreme Court’s Stop the Beach decision.
On Friday October 19 I was inducted as a fellow of the American College of Environmental Lawyers (ACOEL). I then attended ACOEL’s annual meeting and introduced myself to the existing members of the organization, most of whom are practitioners of environmental law. There was considerable interest in harnessing some of the incredible talent in the organization for pro bono public service projects, including possible projects to assist environmental groups in China and other countries. I greatly enjoyed getting to network with old and new friends and to discuss current cutting edge issues in environmental law, including the debate over how hydraulic fracturing should be regulated.
TransCanada’s Keystone pipeline that carries nearly 600,000 barrels of crude oil each day from Canada to the U.S. Midwest, was shut down on Wednesday October 17 after safety tests indicated potential problems. Since the 2,100-mile pipeline was opened in 2010 there have been more than a dozen minor leaks of oil from it. Ben Lefebvre & Chip Cummings, Pipeline Company Idles Keystone Temporarily, Wall St. Journal, Oct. 19, 2012, at B6. Environmentalists opposing the plan to construct the Keystone XL pipeline argue than it will be riskier because it will be carrying heavier, more acidic oil that will corrode pipes faster. The pipeline was restarted on the afternoon of Monday October 22 after some sections were excavated and inspected.
On Wednesday October 17, Rebecca Fenneman, general counsel of the Federal Maritime Commission (FMC), was a guest speaker in my Administrative Law class. Ms. Fenneman is a 1996 graduate of the University of Maryland School of Law. She joined a group of students for lunch prior to class to discuss her career path and the work of the FMC, which regulates maritime shipping into U.S. ports. Due to the importance of global maritime trade, the FMC is particularly active in interacting with government officials in other countries, including China.
On Thursday October 18 I had lunch with Justice Zac Yacoob of the Constitutional Court of South Africa. Justice Yacoob, who played a major role in South Africa’s transition to constitutional rule, was appointed to the court by Nelson Mandela in 1998. He is currently visiting Maryland as a distinguished scholar. Joining me at lunch was visiting Professor Zhao Huiyu of Shanghai Jiaotong University who indicated that Chinese legal scholars are particularly interested in South Africa as a model for how a transition to democracy can be affected. Justice Yacoob plans to visit my Environmental Law class on Wednesday October 24 when we discuss the concept of “judicial takings” and the U.S. Supreme Court’s Stop the Beach decision.
On Friday October 19 I was inducted as a fellow of the American College of Environmental Lawyers (ACOEL). I then attended ACOEL’s annual meeting and introduced myself to the existing members of the organization, most of whom are practitioners of environmental law. There was considerable interest in harnessing some of the incredible talent in the organization for pro bono public service projects, including possible projects to assist environmental groups in China and other countries. I greatly enjoyed getting to network with old and new friends and to discuss current cutting edge issues in environmental law, including the debate over how hydraulic fracturing should be regulated.
Monday, October 15, 2012
Perdue Trial Opens, Oil Industry Sues Over Disclosure Regs, Supreme Court Rejects Chevron Ecuador Challenge, Macalester Visit (by Bob Percival)
On Tuesday October 9 I attended the opening of the long-awaited trial of the Waterkeepers’ lawsuit against the poultry industry (Perdue Incorporated) for polluting the Chesapeake Bay with chicken waste. The Waterkeepers are represented by the University of Maryland’s Environmental Law Clinic and the lawsuit has spawned outrageous attacks on the clinic by politicians close to the poultry industry, including Maryland’s Governor Matin O’Malley. Clinic Director Professor Jane Barrett gave a spectacular opening argument that explained the importance of the lawsuit and responded to the defendants’ false assertions that the suit seeks to destroy family farmers. It is anticipated that the trial, which is being held in federal district court in Baltimore, will take several weeks.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Sunday, October 7, 2012
EU Nuclear Safety Report, Arkansas Takings Argument, Asian Carp Delay & CDM Update (by Bob Percival)
Last week Gunther Oettinger, European Commissioner for Energy, announced that EU countries may need to spend as much as 25 billion Euros ($32.3 billion) to increase the safety of their nuclear power plants. The announcement was based on the results of a report on the safety of nuclear power plants in Europe that had been commissioned by the EU in the wake of Japan’s Fukushima Daiichi disaster. The report concluded that safety standards in the fourteen EU countries that use nuclear power are high, but that they upgrades need to be made to ensure that nuclear power plants can survive extreme natural events. Allesandro Torello, Billions Needed to Improve Safety on Nuclear Plants, Wall St. Journal, Oct. 5, 2012, at A8.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
Tuesday, October 2, 2012
Kiobel Reargument, Total Opposes Arctic Drilling as Too RIsky (by Bob Percival)
On Monday October 1 I went to the Supreme Court for the reargument in Kiobel v. Royal Dutch Petroleum Co. The case involves the question whether foreign plaintiffs can sue corporations under the Alien Tort Statute (ATS) for violations of the “law of nations.” Plaintiffs, the survivors of environmental activists in Nigeria who were summarily executed by Nigeria’s military, argue that Shell Oil (Royal Dutch Petroleum) aided and abetted in the executions to silence critics of oil pollution in Nigeria. Plaintiffs are asking the Court to reverse a decision by the U.S. Court of Appeals for the Second Circuit holding that only nations and individuals, but not corporations, can be held liable in tort for violations of international law.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Subscribe to:
Posts (Atom)
