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

Monday, December 31, 2012

Top Ten 2012 Developments in Global Environmental Law, EPA Administrator Resigns, Chile Protects Seamounts (by Bob Percival)

As calendar year 2012 comes to a close today, it is time for the annual review of the most significant developments in global environmental law during the past year. What is remarkable about these developments is that they largely represent a continuation of trends identified as among the most significant developments a year ago (see my Jan. 1, 2012 blog post). The following is a list of the top ten developments in global environmental law in 2012, in no particular order of significance.

1. Little progress is made in global climate negotiations at COP18 in Doha, even as the impact of global warming and climate change becomes more evident with record temperatures and Superstorm Sandy’s flooding of New York.

2. Under pressure from foreign governments, the European Union agrees to postpone for one year collection of greenhouse gas (GHG) emissions charges from foreign airlines in order to give the International Civil Aviation Organization time to negotiate a global agreement on control of aviation emissions.

3. The U.S. EPA’s endangerment finding and initial regulation of GHG emissions under the Clean Air Act is unanimously upheld by the D.C. Circuit while California continues to implement its state ca--and-trade program and holds a successful first auction of emissions allowances.

4. The rapid expansion of hydraulic fracturing, particularly in the U.S., dramatically increases the supply of natural gas and oil, speeding a shift away from coal even as the future development of nuclear power remains stalled, except in China, due to the March 2010 Fukushima Daiichi disaster in Japan.

5. President Obama wins re-election by a significant margin as U.S. voters reject a candidate who sought to blame environmental regulation for economic problems.

6. Transnational environmental litigation remained in the spotlight. Ecuadoran plaintiffs sought to enforce an $18 billion judgment against Chevron in courts in Canada, Brazil, and Argentina. The U.S. Supreme Court heard and reheard the Kiobel case involving whether the survivors of executed environmental activists in Nigeria can use the Alien Tort Statute to sue Shell in U.S. courts. The International Tribunal of the Law of the Sea directed Ghana to release an Argentine naval frigate that a hedge fund sought to attach to satisfy claims over defaulted Argentine government debt.

7. Efforts by non-governmental organizations to persuade multinational electronics companies to clean up their supply chains bore fruit as Apple agreed to independent audits of its Chinese supply chain. Foxconn, Apple’s largest supplier, raised workers’ wage, reduced excessive overtime, and took steps to improve working conditions while cooperating with Apple to move some of its production to the U.S.

8. BP agreed to a $7 billion settlement of private civil litigation over the Deepwater Horizon oil spill and a $4.5 billion criminal settlement with the U.S. government. Negotiations continue over a potential settlement of federal civil claims against BP.

9. While China continues to upgrade its environmental standards, Chinese courts refused to act on private lawsuits on behalf of fisherman harmed by the ConocoPhillips Bohai Bay oil spill.

10. Implementation of the EU’s REACH Program continues to influence chemical regulation around the world making more toxicity data available and creating an impetus to phase out risky chemicals and to replace them with safer substitutes.

Last week there were other significant developments in global environmental law. On December 27 Lisa Jackson, Administrator of the U.S. Environmental Protection Agency, announced that she was leaving the agency. Jackson, whose appointment initially surprised much of the environmental community, was an aggressive and effective advocate for environmental protection in an administration fearful of upsetting business interests. The low point in her tenure at EPA occurred in September 2011 when President Obama and his Office of Management and Budget forced her to withdraw rules that would have strengthened national limits on emissions that contribute to ground-level ozone formation. The most important accomplishment during her term was the agency’s “endangerment finding” for GHG emissions and her successful promulgation and defense of regulations to control them under the Clean Air Act.

Last week the Chilean Congress amended the country’s Fisheries Law to make Chile the first country to ban bottom trawling in the vicinity of all of its118 seamounts and other vulnerable marine waters. The legislation protects 150,000 square kilometers of the country’s waters. The Chilean Congress also changed the way the country sets catch limits for its fisheries. Instead of relying on the commercial fishing industry to set its own catch limits, catch limits will be set by regulators based on the best scientific recommendations. Environmentalists hailed the legislation as a major advance.

When severe smog hit New Delhi last month, it demonstrated that recent rapid growth in the city’s vehicle fleet has offset the effect of dramatic steps to reduce local air pollution that were mandated a decade ago by the Supreme Court of India. There are now seven million automobiles in the New Delhi area, a 65 percent increase since 2003. More than 1,400 new cars hit the roads in India’s capital city each day. The Supreme Court of India has recommended that a 25 percent “environmental compensation charge” be imposed on the sale of new diesel vehicles and that smaller charges be levied on existing cars. Niharika Mandhana, “Untamed Motorization” Wraps an Indian City in Smog, N.Y. Times, Dec. 27, 2012, at A8.

Monday, December 24, 2012

ITLOS Ruling Leads Ghana to Release Argentine Ship, Chevron Explores Fracking in South Africa, Asian Auto Congestion, Perdue Wins Chesapeake Poultry Suit (by Bob Percival)

The government of Ghana has released the ARA Libertad, a frigate owned by the government of Argentina, following a ruling from the International Tribunal for the Law of the Sea (ITLOS). The ship had been stopped from leaving port in Tema, Ghana, in response to a ruling by a local court. The ruling was obtained by NML Investments, a New York hedge fund seeking to collect on a $284 million New York judgment it won in 2006 over debt that the Argentine government defaulted on in 2001. In response to the Nigerian court’s ruling, the government of Argentina had instituted dispute settlement proceedings under Annex VIII of the Law of the Sea (LOS) Convention in late October. It then sought an order requiring Ghana to release the ship as a provisional measure under Article 290 of the Convention. ITLOS ruled that the Libertad, a three-masted tall ship used to train cadets, is an Argentine warship protected from seizure even when in Ghana’s internal waters under Article 32 of the Convention. Thus, it directed the government of Ghana to allow the ship to refuel and leave port, which it did on December 19.

The editorial board of the Wall Street Journal, which has argued against the U.S. ratifying LOS, despite strong support for ratification from the U.S. military and the U.S. business and environmental communities, cites this as “a case in which a small African nation admirably tried to adhere to the rule of law” only to be “bullied by a global tribunal.” Lawless at Sea, Wall St. J., December 24, 2012, at A12. The Journal concludes that the “next time the Senate moves to ratify the Law of the Sea Treaty, Ghana should be exhibit A for opponents.” However, one would think that this episode instead reinforces why the U.S. military strongly supports ratification of LOS so that a foreign government could not seize U.S. warships in the wake of some U.S. “debt limit’-created default. If anything, ITLOS helped vindicate Argentina’s national sovereignty while extricating Nigeria from a messy dispute not of its own making. An additional complication, as University of Washington Prof. Craig Allen explained in a blog post on opiniojuris.org (Dec. 15), is that before turning to ITLOS for help, Argentina shrewdly amended its previous reservation to application of the compulsory dispute resolution provisions of LOS to its military, a reservation the U.S. Senate Foreign Relations Committee has long supported for the U.S.

Chevron Corporation announced a five-year partnership with Falcon Oil & Gas Ltd. to conduct seismic studies of the potential for extracting natural gas from shale formations in South Africa. Falcon is one of only three companies who have received approval to conduct such studies in South Africa. Three months ago South Africa lifted a temporary ban imposed early in 2011 on shale gas exploration. The U.S. Energy Information Administration estimates that the Karoo region of South Africa contains 485 trillion cubic feet of natural gas. South African environmental groups argue that fracking to extract the gas could cause major environmental damage in this environmentally-sensitive region. Devon Maylie & Alexis Flynn, Chevron Enters Shale Hunt in South Africa, Wall St. J., Dec. 17, 2012, at B7.

Last week the Colorado Oil & Gas Association sued the city of Longmont in an effort to overturn a ban on hydraulic fracturing that voters in the city approved by a substantial margin last month. Jack Healy, City in Colorado Is Sued Over Drilling Ban, N.Y. Times, Dec. 19, 2012, at A19. The surge in U.S. natural gas production spurred by hyraulic fracturing (“fracking”) has accelerated the shift away from coal in U.S. electricity generation. On Dec. 19 American Electric Power announced that it will shut down coal-fired production from its half century-old Big Sandy electric power plant in Louisa, Kentucky. The Sierra Club estimates that Big Sandy is the 55th coal-fired power plant to be retired this year, leaving only 395 such plants compared with 522 operating in the U.S. in 2010.

As the number of automobiles in use in Asian cities continues to soar, traffic congestion has become a major problem. To respond to this problem, Jakarta, Indonesia’s Transjakarta Busway has created dedicated buslanes that have soared in popularity. The number of high-speed bus passengers in Jakarta has soared from 15.94 million in 2004 to 114.78 million in 2011. It is estimated that this has reduced CO2 emissions by 30,000 tons per year and saved the government from paying subsidies on 13.4 million gallons of fuel. The average travel speed on Jakarta highways is 13.7 miles per hour (mph), compared with 14.9 mph in New Delhi, 15.5 mph in Rio de Janeiro, 16.2 mph in Mexico City, 23.0 mph in Dubai, Frankfurt and San Francisco, 23.6 mph in Los Angeles, and 24.2 mph in Johannesburg. Eric Bellman, Across Asia Bus Lanes Become the Way to Go, Wall St. J., Dec. 22-23, 2012, at A12.

On Thursday December 20 federal district judge William M. Nickerson ruled for the defendants in an important Clean Water Act citizen suit brought by the Waterkeeper Alliance against poultry producer Perdue Farms, Inc. (see December 2, 2012 blogpost). The judge ruled that the Waterkeeper, represented by Maryland’s Environmental Law Clinic, had failed to prove by a preponderance of evidence that the source of high levels of bacteria and nutrients flowing through a point source into a tributary of the Pocomoke River was poultry waste. The judge accepted the defendants’ argument that it was more likely that the pollutants were from manure generated by unconfined cattle and not from a poultry CAFO (confined animal feeding operation) covered by the Clean Water Act. In his opinion Judge Dickerson acknowledged the importance of protecting the Chesapeake Bay from pollution and he rejected the defendants’ arguments that the Waterkeeper Alliance lacked standing to bring the lawsuit. The Waterkeeper’s lawsuit and the trial that it spawned exposed some important flaws in existing programs to prevent pollution of the Bay.

Merry Christmas to all!

Monday, December 17, 2012

Visit to Federal Maritime Commission, Atlantic Menhaden Limits, EPA Strengthens PM2.5 Regulations (by Bob Percival)

On Wednesday December 12, Professor Zhao Huiyu, Maryland’s visiting environmental law scholar from Shanghai Jiaotong Law School, and I visited the Federal Maritime Commission (FMC) in Washington, D.C. The FMC is an independent agency responsible for regulating maritime shipping to and from the United States. We observed a meeting of the five-member Commission, which is chaired by Richard Lidinsky, Jr. The Commission voted on a number of matters, including extending an existing exemption on filings of negotiated rate agreements by non-vessel-operating common carriers to foreign carriers, and its staff provided a briefing on the use of alternative dispute resolution in enforcement proceedings. Professor Zhao was quite impressed by the openness of the process, noting that in China one would never see government officials openly airing policy disagreements in public. Following the commission meeting Professor Zhao and I met with Chairman Lidinsky in his offices and we then joined him and his staff for lunch.

The vast majority of imports into the U.S. arrive by ship and China is the leading country of origin of such shipments. As a result, FMC officials regularly consult with their Chinese counterparts and they rotate holding annual meetings in one country or the other. The shipping industry has become much more environmentally conscious in recent years, something that Chairman Lidinsky has sought to encourage by giving the Chairman’s Earth Day Award annually to recognize outstanding leadership and innovation in sustainable ocean transport practices. Nike won the award this year for reducing the carbon footprint of its shipping. Previous award winners have included the Maersk Line for environmental leadership in vessel operation, vessel design, and efforts to increase carbon emissions transparency and the Port of Los Angeles for air quality improvements from its Clean Truck program.

On Friday December 14 the Atlantic States Marine Fisheries Commission voted to impose a historic limit on the catch of menhaden. These small fish, which are a critical part of the food chain in the Chesapeake Bay region, have declined to less than one-fifth of the population that existed during the 1960s. An excellent film about the menhaden, which was made by my Environmental Law students last year, can be seen online at: http://digitalcommons.law.umaryland.edu/envirofilms/42. At a raucous public meeting in Baltimore, the Commission voted 13-3 to limit next year’s menhaden catch to 170,800 metric tons, a 20 percent reduction below average levels during the past three years. While this reduction was less than what had been recommended by environmental groups, Virginia officials protested that it would devastate the state’s fishing industry, which is responsible for 80 percent of the menhaden catch. Much of the Virginia catch is for Omega Protein, a corporation that processes the fish for fish oil and fishmeal.

In order to meet a court-ordered deadline, the U.S. Environmental Protection Agency (EPA) announced on Friday December 14 that it had strengthened its national ambient air quality standard (NAAQS) for fine particulates (PM 2.5) including soot. EPA set an annual standard of 12 micrograms per cubic meter of air. The agency estimates that by 2030 the new standard will prevent up to 40,000 premature deaths, 32,000 hospital admissions, and 4.7 million work days lost due to illness. EPA estimates that the new standard will produce net benefits ranging from $3.6 billion to $9 billion per year. While some industry groups criticized EPA for strengthening the standard, EPA noted that less than ten of the 30,000 counties in the U.S. will have to undertake new local regulations to meet the standard. A video of EPA Administrator Lisa Jackson describing the new standards is online at: http://www.youtube.com/watch?v=CEUrnDB2rF0&feature=youtu.be

While my students were taking their Administrative Law and Environmental Law exams last week, my wife and I made our annual pre-Christmas pilgrimage to Manhattan. On Monday December 10 we went to Greenwich Village to see the opening run of “Happy New Year,” a powerful film about the plight of veterans returning from Iraq and Afghanistan, for which my nephew is one of the executive producers. Prior to arriving at The Quad where the film was showing, we stumbled upon the MLB Fan Cave where Cobie Caillat was giving a free concert. On December 11 we had lunch at Le Bernardin to celebrate the second anniversary of my wife’s cancer being in total remission and that evening we attended the performance of “The Messiah” by the St. Thomas Men and Boys Choir and Concert Royal. On December 12 I took the 6AM Acela back to D.C. and met Professor Zhao at Union Station just in time for our visit to the Federal Maritime Commission, whose offices are just a few blocks away.

Monday, December 10, 2012

COP18 Concludes, China Air Pollution Plan, Stormwater in the U.S. Supreme Court, Tesla S (By Bob Percival)

The 18th Conference of the Parties to the UN Framework Convention on Climate Change (COP18) held in Doha, Qatar concluded at the end of last week after a marathon 36-hour final session that ran long past its scheduled conclusion. A total of 37 countries, primarily from the European Union, agreed to extend their Kyoto Protocol commitments to control emissions of greenhouse gases (GHGs) through the year 2020. The existing Kyoto commitment period expires at the end of 2012. New Zealand, Canada, Russia and Japan decided to opt out of extending their Kyoto commitments. Thus, after 2012 the Protocol will only cover countries that are responsible for less than 15 percent of global emissions of GHGs. Australia, which initially had joined the U.S. in rejecting the Kyoto Protocol, but which subsequently ratified it, also agreed to the extension to 2020, citing a desire to participate in the EU carbon trading market.

A particularly contentious set of issues at Doha were negotiations over the fund to help developing countries deal with climate change. Citing current economic problems, the U.S. and the EU refused to set precise figures for contributions to the fund during the period from 2013-2020. At Copenhagen in 2009 developed countries had promised to establish a green fund and to fund it at $100 billion/year by 2020. Some observers viewed the shift in the tone of the discussion from using the fund to assist developing countries with mitigation and adaptation toward using it to compensate them for “loss and damage” caused by the developed world as setting the stage for more conflict in future climate talks. The Durban Platform for completing by 2015 a new agreement to control global GHG emissions by the year still is in place, but there is considerable skepticism as to whether this goal will be achieved. At COP18 Xia Zhenhua, head of the Chinese delegation, stated that China would be willing to discuss adopting binding GHG emissions limits that would be effective after 2020.

On December 5 China’s Ministry of Environmental Protection released a plan pledging to reduce air pollutants in 13 major areas covering 117 cities in China. The plan seeks to reduce PM2.5 intensity by 5 percent by 2015 and to reduce the intensity of PM10 and sulfur dioxide by 10 percent by 2015. It also pledges a 7 percent reduction in the intensity of nitrogen dioxide emissions. The plan includes a requirement that new sources of air pollution offset their pollution by obtaining larger reductions in the same kind of pollution from existing sources. Earlier this year China’s State Council enacted new air quality standards that include for the first time the smallest particulates (PM2.5) and ozone. These are to be met throughout the nation by January 1, 2016. It is estimated that 70 percent of China’s cities currently do not meet the revised standards.

Last week the U.S. Supreme Court heard oral argument in two cases involving the Clean Water Act. In both cases the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of environmental interests. On Monday December 3 the Court heard argument in Decker v. Northwestern Environmental Defense Center, a case involving the question whether timber companies need Clean Water Act permits to control stormwater runoff from logging operations that flows through ditches and culverts along logging roads. Three days before the argument the U.S. Environmental Protection Agency (EPA) promulgated new regulations that purported to reverse the Ninth Circuit’s decision by clarifying that these were not the type of silvicultural operations that required a stormwater permit. Chief Justice Roberts expressed irritation that the Court had not been given more notice about the impending regulations, though the Solicitor General initially had advised the Court not to take the case because EPA would resolve the issue through regulations.

Professor Jeffrey Fisher, co-director of Stanford’s Supreme Court Litigation Clinic, argued that the Court should dismiss the cert petition as improvidently granted in light of the fact that the environmental groups would be challenging the new regulations as inconsistent with the Clean Water Act. Tim Bishop, arguing for the timber industry said the Court should prevent years of further litigation by reversing the Ninth Circuit and agreeing with EPA that permits are not needed. Following the argument students from my Environmental Law and Administrative Law classes came over to my house on Capital Hill for lunch and a post-mortem on the argument.

On Tuesday December 4 the Court heard Los Angeles County Flood Control District v. Natural Resources Defense Council. In this case the argument focused not on whether the stormwater discharges required a permit, but rather how to measure permit violations and who should be responsible for them. Under the District’s permit, monitoring stations have been placed where water flows within the storm sewer system rather than where it discharges to another body of water. Some observers thought the Court could use the case to clarify its prior Miccosukee decision where it indicated that water transfers within a single body of water were not discharges requiring a permit. I was unable to attend the argument, but the transcript of it suggests that it is not clear how the Court will rule.

On December 7 I finally took the plunge and placed my order for an all-electric Tesla Model S automobile. Last February the University of Maryland installed four electric vehicle charging stations at our parking garage, but they have been largely unused, except for a rare appearance by a Chevy Volt. My Prius will be seven years old next summer and have more than 100,000 miles on it and I was in the market for an electric car. Tesla opened a showroom in downtown DC not far from my home and last month its Model S won the award as Motor Trends “Car of the Year” for 2012. While some electric vehicle manufacturers are struggling, Tesla has produced a spectacular luxury vehicle that is now coming off its Fremont, California assembly line at the rate of 400 cars per week. The company reports that it recently turned cash flow positive for the first time. I am now in line for #15,443 of the Model S so it won’t be delivered to me until fall 2013, but what a car it is.

Sunday, December 2, 2012

COP18 in Doha, Myanmar Mine Protest, Poultry Pollution Suit, E-Law Films (by Bob Percival)

The Eighteenth Conference of the Parties (COP18) to the UN Framework Convention on Climate Change (UNFCCC) and the Eighth Meeting of the Parties to the Kyoto Protocol (CMP8) are underway in Doha, Qatar. It seems ironic that the conference is being held in Qatar, the country that is the world’s leader in per capita emissions of greenhouse gases (GHGs). As host of the 2022 football/soccer World Cup Qatar has pledged to air condition the outdoor stadiums that will be used for soccer’s premier event, though the electricity running the air conditioning supposedly will be generated by solar power. COP18 will run through next Friday December 7 and, as is usual with these events, most of the important decisions are likely to be made at the very end. There are 195 nations who are parties to the UNFCCC. On the agenda are a second round of commitments to the Kyoto Protocol, whose existing commitment period expires at the end of this year, and efforts to flesh out the outlines of a new global climate agreement to be finalized by 2015.

On November 29 government security forces in Myanmar violently attacked citizens protesting the expansion of a copper mine near the city of Monywa. The mine is owned jointly by a Chinese company and the Burmese military’s Union of Myanmar Economic Holdings. The security forces fired explosive devices and severely injured many of the protesters who included numerous monks. According to the protesters, expansion of the mine would displace the residents of more than twenty villages and cause severe environmental damage. Myanmar opposition leader Aung San Suu Kyi arrived at the site after the crackdown and agreed to participate in an investigation of what happened.

Last Wednesday I attended a farewell party in U.S. Attorney General Eric Holder’s office for my casebook co-author Chris Schroeder who is stepping down as Assistant Attorney General for the Office of Legal Policy. It was a wonderful event with warm remarks from Chris, Attorney General Holder, Deputy Attorney General Jim Cole, former acting Solicitor General Walter Dellinger and others. Chris will return to teaching at Duke next semester when we will be publishing the new seventh edition of our Environmental Regulation: Law, Science & Policy casebook.

On Friday I attended closing arguments in federal district court in Baltimore in the Waterkeeper Alliance’s landmark lawsuit against Hudson Farms and Perdue for poultry waste pollution of the Chesapeake Bay. The arguments followed briefing of proposed findings of fact and conclusions of law after a trial that spanned parts of three weeks. The basic issue in the case is whether a poultry CAFO with 40,000 birds violated the Clean Water Act by discharging poultry waste into a tributary of a river flowing into the Chesapeake Bay. The lawsuit was filed in March 2010. The University of Maryland’s Environmental Law Clinic is representing the Waterkeepers. In an important early victory for the Clinic Judge Nickerson denied Perdue’s motion to dismiss it as a defendant, holding that poultry integrators can be held liable for Clean Water Act violations by their contractor’s CAFO if they exercise sufficient control over their contractor’s chicken operations. Assateague Coastkeeper v. Hudson Farm, 727 F. Supp. 2d 433 (D.Md. 2010). The focus of the trial is now on whether the defendant’s CAFO did in fact discharge pollutants in violation of the Clean Water Act.

Last week was the end of classes for the fall semester at Maryland. Every year I have students in my Environmental Law class form small groups to make short documentary films about an environmental issue they are concerned about. Last Monday on the last day of class the students showed the first cut of their films.  There are nine films this year. The topics of the films include: invasive species and ballast water, the impact of climate change on the wine industry, hydraulic fracturing, the work of the Baltimore Harbor Riverkeeper, offshore wind in Maryland, the impact of methamphetamine labs on the environment, oysters and the Chesapeake Bay, urban composting, and municipal climate action. The students have until February 1 to submit the final cuts of their films that will be submitted to a panel of judges. On March 27 we will be holding the annual “Golden Tree” award ceremony for the films. The films will then be made available for viewing online.