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.