Challenge to BP Settlement Rejected, Shanghai Air Pollution, Russia Drops Charges Against Greenpeace Protesters (by Bob Percival)

On December 24 a federal district judge rejected an effort by BP to require more stringent proof of losses before claims can be paid from the settlement fund created in response to the April 2010 Deepwater Horizon oil spill.  The U.S. Court of Appeals for the Fifth Circuit had ordered Judge Carl Barbier to review how the Deepwater Horizon Claims Center was handling claims for economic and property losses related to the spill.   Judge Barbier ruled that BP had agreed to a settlement that would presume that losses to businesses within certain geographic areas near the spill could be compensated without direct proof of causation.  BP, which has been waging an aggressive publicity campaign against the way claims are being paid, could not now reinterpret the settlement, Judge Barbier stated.  “[T]he delays that would result from having to engage in a claim-by-claim analysis of whether each claim is ‘fairly traceable’ to the oil spill . . . are the very delays that the settlement, indeed all class settlements, are intended to avoid.” The judge did direct the claims administrator to define a protocol to improve documentation of some losses.  BP initially estimated that it would pay $7.8 billion under the settlement, but it has now increased that figure to $9.2 billion while expressing concern that it could grow significantly larger.

Children were warned to stay indoors as Shanghai was engulfed in another bout of severe air pollution during Christmas week.  On the afternoon of December 25 levels of small particulates (PM2.5) in Shanghai approached 400 micrograms per cubic meter, more than fifteen times the level recommended by the World Health Organization.  Earlier in the month PM2.5 levels had approached 500.  Zhang Quan, director of the Shanghai Environment Protection Board, stated that it will take another decade to solve the city's air pollution problems.

On December 25 Russia formally dropped charges of criminal hooliganism against the Greenpeace activists it had arrested in September.  The activists had been protesting oil drilling in the Arctic when Russian commandos boarded the Arctic Sunrise, a Greenpeace vessel that had transported the protesters to the vicinity of an offshore oil rig in the Pechora Sea.  The charges were dropped as part of an amnesty reportedly ordered to improve Russia’s image prior to the upcoming Sochi Olympics. Peter Wilcox, captain of the Arctic Sunrise, expressed relief that the charges had been dropped, while noting that the activists never should have been arrested.

Next week in my first post of the new year I will prepare my annual list of the top global environmental law developments of 2013.  Happy holidays to all.

Canadian Court Allows Chevron/Ecuador Enforcement Action, Australia Cuts EDOs, California Lead Paint Decision, EC Air Pollution Controls (by Bob Percival)

On December 17 the Ontario Court of Appeals ruled that an action to enforce a $9.5 billion judgment against Chevron by a court in Ecuador could proceed.  Plaintiffs representing 30,000 residents of Sucumbios province, Ecuador, who claim they were harmed by oil pollution won the judgment in February 2011.  Because Chevron has pulled all of its assets out of Ecuador, the plaintiffs have been seeking to enforce the judgment in Canada, Brazil, and Argentina.  In May 2013 a trial court in Ontario had stayed the enforcement action on the ground that Chevron’s Canadian subsidiary was a distinct corporate entity whose assets could not be used to satisfy a judgment against the parent corporation. The Ontario Court of Appeals reversed.  

First, the Court of Appeals rejected Chevron’s claim that Ontario itself must have a real and substantial connection to the subject of the litigation in order for the court to have jurisdiction to enforce an Ecuadoran judgment.  The court held that “the exclusive focus of the real and substantial connection test is on the foreign jurisdiction” and that Chevron action’s in Ecuador clearly met this test. Second, the court concluded that the trial judge improperly imported notions of forum non conveniens in ordering the stay by reasoning that the U.S. would be a better venue for enforcement. The court concluded by noting that:
“Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. ‘We’re going to fight this until hell freezes over.  And then we’ll fight it on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction.  At this juncture, Ontario is that jurisdiction.”

Chevron states that it is considering appealing the decision to the Supreme Court of Canada. 

The Australian government announced last week that it will eliminate all federal funding for Environmental Defenders Offices (EDOs) that bring public interest environmental litigation.  Some EDOs were told their funding would be cut immediately.  All federal funding of EDOs will be eliminated by July 1, 2014. The move is widely viewed as an expression of Prime Minister Tony Abbott’s hostility toward environmental protection measures.  Shortly after taking office in September his government abolished the Climate Commission, which focused on the science and economics of carbon pricing.  The Commission quickly was revived using private funds, which many hope also will happen for the EDOs.

Last week a federal jury in New Orleans convicted Kurt Mix, a former engineer for BP, of a single felony count of obstruction of justice for deleting more than 200 text and voice messages that the government argued contained important evidence concerning the 2010 oil spill in the Gulf of Mexico. The defense had argued that Mix did not intend to destroy evidence.  The jury acquitted Mix of a second count of obstruction of justice.  Three other current or former BP employees face criminal charges in connection with the spill.

A Superior Court judge in San Jose, California last week held three companies liable for marketing lead-based paint prior to it being banned in 1978. The lawsuit was brought by ten California cities and counties, including San Francisco, San Diego, and Los Angeles County.  The plaintiffs argued that the companies had known since 1937 that lead paint was dangerous to children’s health, but attempted to conceal its dangers.  Judge James Kleinberg found the companies liable for a public nuisance and ordered them to pay $1.1 billion to create a lead paint abatement program.  The defendants found liable were Sherwin-Williams Co., NL Industries, Inc. and ConAgra Grocery Products LLC.  Two other defendants - Atlantic Richfield and DuPont - were held not liable. Similar public nuisance claims against the manufacturers of lead paint have been unsuccessful in several other states.

Citing studies indicating that air pollution causes 400,000 premature deaths per year in Europe, the European Commission on December 18 released a draft of new air pollution controls. The new measures would impose tighter limits on air pollution from power plants and industrial sources and it would restrict the amount of pollutants each country could generate.  The Commission estimates that it would reduce premature deaths from air pollution by 58,000 per year by the year 2030.  Much of Europe is not complying with the EU’s existing air pollution standards, which will still be more relaxed than the levels recommended by the World Health Organization.

Last March China announced that it would become the first major developing country to adopt an ultra-low sulfur fuel standard for gasoline. On December 18 China’s Standardization Administration announced the new regulations to implement this decision.  The new standard, which will be known as “China 5,” will limit levels of sulfur in gasoline to 10 ppm, a significant drop from current regulations limiting sulfur in gasoline to 50 ppm.  However, the new standards will not take effect across China until January 1, 2018.


On December 19 the Supreme Court of Pennsylvania by a vote of 4-2 invalidated significant portions of the state’s Act 13 of 2012 that had attempted to bar local regulation of hydraulic fracturing operations.  Three justices found that the stricken provisions violate the public trust doctrine enshrined in Section 27 of the Declaration of Rights in the Pennsylvania Constitution. A fourth justice found that the provisions violate substantive due process.  The court declared that “a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.” Robinson Township v. Commonwealth of Pennsylvania (Supreme Court of Pennsylvania Dec. 19, 2013).

Red Sea to Dead Sea Project, Supreme Court Hears Interstate Air Pollution Case, EPA Administrator in China (by Bob Percival)

On Monday December 9 officials from Israel, Jordan and the Palestinian Authority announced an agreement on a long-discussed plan to pump water from the Red Sea to create drinking water and to replenish the shrinking Dead Sea. Under the plan private investors will be asked to finance the construction of a new desalination plant in Jordan on the Gulf of Aqaba that will provide a new source of drinking water for both Israel and Jordan.  In return Israel has agreed to sell an additional 30 million cubic meters of drinking water to Jordan each year.  Extremely salty “reject brine” created by the desalination process will then be shipped north through a 100-mile pipeline on the Jordan side of the border with Israel to the southern end of the Dead Sea where it will be discharged beginning in 2017.  This will help replenish a body of water whose level has shrunk by more than 80 feet in the last 50 years, causing large sinkholes to open up in the surrounding land (see blog post of March 16, 2013).  Friends of the Earth Middle East expressed concern about the environmental impact of the project.  A “mixing pool” dammed off from the rest of the Dead Sea is to be created at the sea’s southern end to monitor environmental impacts of the reject brine discharges. William Booth and Howard Schneider, New Project to Create Drinking Water from the Red Sea Will Also Boost Shrinking Dead Sea, N.Y. Times, Dec. 9, 2013.

On Monday December 9 eight northeastern states filed a petition with EPA asking it to impose new controls on pollution from coal-fired power plants in Ohio, Kentucky and Michigan.  The move may give EPA another vehicle for cracking down on interstate air pollution even if the U.S. Supreme Court upholds the D.C. Circuit’s decision striking down EPA’s Cross State Air Pollution Rule (CSAPR). On December 10 the U.S. Supreme Court heard oral argument in EPA v. EME Homer City Generation, EPA’s challenge to the D.C. Circuit’s decision. On December 5, five days before the oral argument, the Court on its own motion expanded the time allowed for the argument from one hour to ninety minutes.  This highly unusual move may have been motivated by the Justices realizing the complexity of the Clean Air Act during their preparations for the oral argument.  Five students from my Environmental Law class came down from Baltimore and observed the argument.  Several of my former students also were at the argument including Mary Raivel who worked on the case for the state of Maryland, Erica Zilioli from the Environment and Natural Resources Division of the U.S. Department of Justice, and Khushi Desai from Earthjustice.

Justice Samuel Alito, who normally is hostile toward environmental regulations, was not present at the argument because he recused himself from the case for undisclosed reasons.  His recusal is unlikely to make a difference in the outcome because a 4-4 split by the remaining eight Justices would affirm the D.C. Circuit’s decision striking down EPA’s rule.  At oral argument it appeared fairly clear that four Justices (Ginsburg, Breyer, Sotomayor and Kagan) support EPA’s rule.  Justice Scalia seemed to oppose the rule.  Thus, the outcome of the case is likely to turn on whether Chief Justice Roberts and Justice Kennedy join Justices Scalia and Thomas (who as usual said nothing during the argument) in affirming the D.C. Circuit’s decision striking down EPA’s rule. EPA is arguing that its more efficient policy of basing each state’s contribution to reducing interstate air pollution on where it can be done most cheaply is consistent with the Clean Air Act, a policy that even Justice Scalia seemed to agree made good sense, though he indicated that he thought it was inconsistent with the statute. 

While the CSAPR case was being argued in the Supreme Court on Dec. 10, a few blocks away the U.S. Court of Appeals for the D.C. Circuit was hearing oral argument in cases challenging EPA’s regulations to control emissions of mercury from power plants.  The panel of judges hearing the mercury case included Judges Merrick Garland and Judith Rogers, who generally are sympathetic to environmental regulation, and Judge Brett Kavanagh, the author of the decision striking down the CSAPR in the case reviewed by the Supreme Court.

EPA Administrator Gina McCarthy did not attend either of the oral arguments because she was visiting China. In Beijing she pressed the case for further U.S. cooperation with China on matters of air and water pollution.  While she was in Shanghai, Administrator McCarthy met with women prominent in the Chinese environmental movement at the Consul General’s residence.  The guests included environmental law professors and NGO and government environmental officials.  Professor Zhao Huiyu, who attended the event, told Administrator McCarthy that she had spent a year studying environmental law at Maryland.  Zhongzi Zhang from Roots and Shoots mentioned that I frequently bring students to China on environmental field trips (in 2014 I will be hosting them in March and August).  Jane Nishida, Acting Assistant EPA Administrator for the Office of International and Tribal Affairs, mentioned that the Maryland Environmental Law Clinic has sued EPA at times.

Shanghai Pollution, Ecuador Closes Environmental Group, ALEC Summit, NRC Visit & Nelson Mandela (by Bob Percival)

Cities in eastern China, including Shanghai, were engulfed in severe air pollution last week.  One friend in Shanghai described the “smell of burning coal” pervading the city. On December 6 pollution became so severe that sporting events were canceled, schoolchildren were sent indoors and construction was halted.  Thirty percent of government vehicles were taken off the roads as PM2.5 levels reached 602.5 micrograms per cubic meter, far above the World Health Organization (WHO) recommended limit of 25.

The government of Ecuador shocked environmentalists on December 4 when it raided and closed the Quito offices of the Pachamama Foundation, a nonprofit group that opposes oil drilling in the Amazon.  The group, whose name means “Mother Earth” in  Quechua, worked with the Achuar indigenous population to protest an auction last week of 13 oil drilling concessions in Ecuador near the Peruvian border.  Ecuador President Rafael Correa denounced the group as a threat to public order.  The group has vowed to challenge its closure in the courts of Ecuador and to file a complaint with the InterAmerican Commission on Human Rights.

Last week the American Legislative Exchange Council (ALEC) held a three-day policy summit in Washington, D.C.  The group, heavily funded by contributions from the Koch brothers and other corporations, has been losing members and corporate sponsors after it was exposed as the driving force behind the widespread enactment of state “stand your ground” laws.  Some of its opponents claim that ALEC actually stands for “A Legislator for Every Corporation” because it is pushing a host of right wing initiatives to benefit corporate interests.  In 2014 ALEC plans to push state legislatures to adopt measures to gut state renewable energy standards, hand public lands over to oil and gas companies, preempt state and local laws requiring labeling of genetically modified products, and oppose EPA regulation of greenhouse gases.  Mariah Blake, What Kind of Crazy Anti-Environment Bills Is ALEC Pushing Now?, Grist, Dec. 6, 2013.  ALEC’s policy summit generated protests and a few scathing reviews, particularly after the press was barred from some of its meetings.  See Dana Milbank, ALEC Stands Its Ground, Washington Post, Dec. 6, 2013.

On Wednesday December 4 I gave a lecture on recent developments in administrative law at the Nuclear Regulatory Commission (NRC)  in Rockville.  The lecture, part of a series sponsored by the NRC’s Office of General Counsel, reviewed judicial decisions addressing the level of deference agencies should receive during judicial review, and questions of preemption and standing.  It was a fun experience for me because several of my former students are attorneys at the NRC and Margaret Doane, the agency’s general counsel, also is a Maryland Law graduate.  She previously served as the Director of the NRC's Office of International Programs and she emphasized the considerable efforts that are being made to improve global cooperation in ensuring the safety of nuclear power.  Among the other Maryland grads at the NRC who attended my lecture were Michelle Albert, Lisa Clark, Marcia Simon, Andrea (Curatola) Silvia, Esther Houseman and Tracey Stokes.  Several administrative law judges from the Atomic Safety and Licensing Board also attended the lecture.  Some of these are considered “science judges” because of their scientific or technical backgrounds, which is particularly useful considering the nature of the NRC’s work. When I again teach Administrative Law next fall I am hoping to arrange a field trip to the NRC so that the class can observe how adjudicatory hearings are conducted.  

The world is celebrating the remarkable life of Nelson Mandela, who passed away on December 5 at the age of 95.  In 1997 Mandela co-founded the Peace Parks Foundation that seeks to protect wildlife by creating protected areas along borders to allow animals to traverse national boundaries.  When South Africa hosted the 2002 World Summit on Sustainable Development in Johannesburg, Mandela delivered a speech entitled “No Water, No Future” arguing that the nations of the world should make access to clean water a human right.  In 2007 Mandela founded the Elders, a group of independent global leaders, chaired by former UN Secretary General Kofi Anan and former Norwegian Prime Minister Gro Harlem Brundtland, who have made climate justice one of their top priorities.

One of the great blessings of my life has been to have the kind of mother-in-law that one could only dream of.  Yesterday afternoon Mary Louise (Baldwin) Price, my mother-in-law, passed away in Towson, Maryland at the age of 88.  “Wesi” Price was the daughter of the late H. Streett Baldwin, a major political figure in Baltimore County during the 1930s and 1940s when he served as chair of the Baltimore County Commissioners and as a member of the U.S. Congress.  Wesi had a keen sense of social justice and always made me feel like a most welcome member of the family.  The world is a much better place as a result of her life. 

Greening the Paper Industry, China Coal Consolidation, Methane Emissions Underestimated, NZ Offshore Drilling Protests, Student E-Law Films (by Bob Percival)

An unusual project by the European paper industry reportedly has developed breakthrough technology to reduce the industry’s environmental impact.  In 2012 the Confederation of European Paper Industries (CEPI), a trade association, launched the Two Team Project that brought together two teams of scientists and businesspeople, each of which developed four competing proposals for changing the way paper is made.  On November 27 a jury at the annual European Paper Week conference in Brussels chose as the winning proposal a method of using deep eutectic solvents to dissolve wood and separate lignins without the water- and energy-intensive processes currently used by the industry.  The new technology would reduce energy use by paper companies by 40%, slash the industry’s water use, and generate valuable raw materials for the production of high-value chemicals.  Much more work needs to be done to implement the technology, but industry executives described it as the greatest industrial breakthrough in decades.  “Roll on the Green Revolution,” The Economist, Nov. 30, 2013, at 66.

On November 28 China’s State Council proposed to encourage further consolidation of China’s coal industry by increasing the importance of large, state-owned coal companies.  The proposal reaffirmed the government’s edict gradually to shut down small coal mines producing less than 90,000 metric tons per year and to prohibit new projects with annual production of less than 300,000 tons per year. China currently uses 3.5 billion tons of coal per year - nearly half of all the world’s coal production - and it is expected to increase annual coal consumption to 4.8 billion tons by 2020.  In September 2013 the State Council conceded that it only will be able to reduce the country’s reliance on coal for energy production from the current 70% to 65% by 2017 (it previously had pledged to cut coal use to 60% of energy production by then).  The State Council also directed other agencies to stop local governments from imposing “haphazard” fees and taxes on coal production that may take 25-35% of the coal industry’s revenues.  Chuin-Wei Yap, Beijing Aims to Enlarge Role of State-Owned Coal Giants, Wall St. J., Nov. 29, 2013, at A12.

A study just published in the Proceedings of the National Academy of Sciences concludes that current EPA estimates of methane emissions from agriculture and oil and gas drilling in the U.S. are substantially below actual levels. Scott M. Miller, et al., Anthropogenic Emissions of Methane in the United States, at: http://www.pnas.org/content/early/2013/11/20/1314392110.abstract.  The study is significant because it relied on more than 12,000 actual measurements of methane emissions.  It found that emissions from fossil fuel extraction operations in Texas and Oklahoma may be 2.7 times higher than estimated.  Overall the study found that actual emissions of methane were approximately 1.5 times greater than EPA’s latest estimates.  This is particularly worrisome because methane is a potent greenhouse gas, more than 20 times more potent than carbon dioxide.                

New Zealand environmentalists are protesting the government’s expansion of offshore oil drilling.  Thousands of protesters gathered on 45 New Zealand beaches on November 23 and an Oil Free Seas Flotilla of protest vessels sailed 100 miles off the coast where Anadarko is about to conduct exploratory drilling.  In an effort to limit protests, the New Zealand Parliament in April 2013 passed a law banning protests that interfere with oil exploration and it banned protest vessels from coming within 500 meters of drilling vessels or offshore platforms.  In September 2013 the New Zealand government expanded the areas offered for offshore oil drilling, despite public concern raised by an October 2011 oil spill on a North Island beach caused by the grounding of a cargo vessel.  Environmentalists are concerned that the government and oil industry are not capable of containing a major oil spill, citing the scant efforts that were made to contain the 2011 spill.   

The U.S. Supreme Court has set a date for oral argument in its review of a portion of EPA’s greenhouse gas (GHG) regulations.  The consolidated cases challenging part of the D.C. Circuit’s June 2012 decision unanimously upholding the regulations will be heard at 10AM on Monday February 24, 2014.  The Court is expected to issue a decision in the cases before it adjourns for the summer at the end of June 2014.                                                                                                                                                                                                                                                                                                                                  

Continuing an annual tradition that began in 2002, students in my Environmental Law class have made short documentary films on environmental topics.  This year eight groups of students made films that were shown for the first time on November 25 in the University of Maryland Carey School of Law’s Ceremonial Moot Courtroom.  Two films focused on redevelopment of Baltimore brownfields sites.  Another examined the campaign to demonize Maryland’s stormwater remediation fee as a “rain tax.” Other films examined the silt buildup behind the Conowingo Dam, efforts to ban shark finning, Maryland’s community energy future and the lead poisoning problem.

Routledge has just published the book Trade, Health, and the Environment: The European Union Put to the Test as part of its Explorations in Environmental Studies series.  The book is edited by Professor Marjolein B.A. van Asselt, Chair in Risk Governance at Maastricht University, Michelle Everson, Professor of European Law at the University of London, and Ellen Vos, Professor of Euroepan Union Law at Maastricht University.  I contributed a chapter to the book on “Risk, Uncertainty and Precaution: Lessons from the History of U.S. Environmental Law.”  The book is a product of a conference held at the University of Maastricht in April 2010.

COP-19, Russia Defies Law of the Sea Tribunal, Putin on Russia's Environment, China's Third Plenum, Chevron RICO Oped and Letter (by Bob Percival)

COP-19 in Poland ended on Saturday with a heroic effort to paper over festering differences between developed and developing countries.  China and India backed off their objections after conferences leaders agreed to change the description of the pledges each country must submit by early 2015 concerning its actions to combat climate change from “commitments” to “contributions.” Substantial progress was made on fleshing out the REDD program to reduce deforestation.  Some progress was made toward developing a mechanism for providing funds to developing countries to adapt to climate change and for “loss and damage,” but developed countries adamantly refused to be held expressly liable for damages caused by climate change.  Agreement was not reached on specifics concerning how developed countries would meet their 2009 Copenhagen commitment to provide $100 billion to a green climate fund for developing countries.  The Polish government, host of the conference, announced the replacement of its environment minister during the event with a minister perceived as less sympathetic to the environment and it hosted a global coal industry forum in tandem with the climate conference. 

At the behest of the government of the Netherlands, last week the International Tribunal for the Law of the Sea ordered Russia to release the Greenpeace vessel Arctic Sunrise that Russia seized in international waters off its northern coast in September when it arrested activists protesting Russian oil drilling in the Arctic. The Tribunal also ordered Russia to release the 30 activists and journalists who had been on the ship upon the posting of a 3.6 million Euro bond by the government of the Netherlands.  Russia rejected the decision, claiming that despite the mandatory dispute resolution procedures in the Convention on the Law of the Sea, it would not respect decisions that it believes infringe on its sovereignty.  When it ratified the Law of the Sea Convention in 1997, Russia submitted a reservation to anything that would infringe on its sovereignty.  Citing this reservation, Russia boycotted the proceedings before the Law of the Sea Tribunal.   China currently is boycotting a Tribunal arbitration initiated by the Philippines concerning China’s territorial claims to islands in the South China Sea.   The Chinese government argues that the Tribunal has no jurisdiction to hear territorial claims.  Last week a court in St. Petersburg granted bail to most of the imprisoned Greenpeace activists, who still face trial in February on hooliganism charges. Upon his release on bail, Peter Willcox, captain of the Arctic Sunrise, reported that the Russian commandos who arrested him stole and drank the alcohol that had been kept on board.

On November 20 Russian President Vladimir Putin told his National Security Council that Russia must put greater emphasis on protecting its environment or future generations will be “left with nothing.” Putin noted that Russia currently spends only 0.8% of its GDP on environmental protection, an amount far less than other developed countries.  He observed that Russian industry is dominated by “dirty” technologies and that little legislation has been adopted to back up previous government rhetoric about the importance of environmental protection.  Among the most urgent environmental priorities outlined by Putin were protection of Lake Baikal, Lake Onega, and Lake Ladoga.

With Northern China again engulfed in pollution so bad that highways and airports have been forced to close due to visibility problems, environmental protection remains a top priority of the Chinese government.  An English translation of the document released this month by China’s Third Plenum of the Communist Party, called “Resolution Concerning Some Major Issues in Comprehensively Deepening Reform,” is available online at:  http://www.china.org.cn/china/third_plenary_session/2013-11/16/content_30620736.htm  It is considered a blueprint for how Xi Jinping plans to govern China and it has several provisions that address environmental concerns.  The document states that the Chinese government “must effectively shifts its role by building itself into a service-type government that bases its functions on the law.”  It concludes that the current system for assessing the performance of officials “overemphasizes GDP growth” and it pledges to impose a consumption tax on “energy and pollution intensive products” while changing “the current environmental-protection fee into an environmental tax.” The document states that more law enforcement resources will be devoted to environmental protection and that the judiciary will become more transparent, and its independence and fairness ensured. In a penultimate section entitled “Ecological Civilization” the document promises “the strictest possible rules to protect the ecological system” and it pledges to “push ahead with a trading system for pollutant discharge, carbon emissions and water rights.” It also promises to: “Establish a system in which all pollutants are monitored and regulated. Release timely environmental information and improve the reporting system to strengthen social supervision. Improve the pollutant-discharge licensing system and control the pollutants.”  Finally, it declares that “[p]olluters who damage the environment must compensate for the damage and could receive criminal sanctions.”

On Wednesday November 20 the Washington Post printed a letter to the editor that I wrote concerning an oped the paper had published on November 16 about Chevron’s RICO lawsuit against plaintiffs and their lawyers who won a judgment against Chevron for oil pollution in Ecuador (http://www.washingtonpost.com/opinions/chevron-could-have-enjoyed-us-justice-sooner/2013/11/18/26187f8a-4f92-11e3-9ee6-2580086d8254_story.html).  The oped, David B. Rifkin, Jr. & Andrew M. Grossman, “U.S. Justice Exposes an Ecuadoran Fraud,” was a somewhat premature victory lap for Chevron by claiming, prior to any decision in the case, that the company’s RICO lawsuit had exposed “a fraud, part of a 20-year scheme to extort money.”  But, as my letter pointed out, 20 years ago the lawsuit originally had been filed by the plaintiffs in the very court the authors of the oped now lauded.  It was dismissed initially only because the oil company insisted that the case should be heard in Ecuador, something the oped did not disclose.  The oped also did not disclose that the authors’ law firm has Chevron as a client, something the Post corrected on November 23 with an unusually prominent “Clarification” on the editorial page.

On Friday November 22 the University of Maryland Carey Environmental Law Program hosted its 22nd Annual Environmental Law Winetasting party in Westminster Hall in Baltimore.  Nearly 200 faculty, students, alums and friends of the program participated in the event that featured 80 wines.  I provided the wines, including a couple of cases of very old wines from my wine cellar, such as a bottle of 1982 Chateau Mouton Rothschild, a 1982 Chateau L’Evangile, and four vintages of Pichon Longueville Comtesse de Lalande from the 1980s.  We also tasted the brand new 2013 Beaujolais nouveau that has just arrived in the U.S.  The “mystery wine” tasted blind was a magnum of 2005 Pichon Lalande, a great second growth from the Pauillac region of Bordeaux. This year’s winners in the annual “Guess the Mystery Wine” contest included: KK Cooper and Megan Marzec for guessing the correct vintage year, Jennifer Lehman and Karen McGullam for correctly guessing that the wine was from France, and Michael Brown and Denjelle Midgley for correctly guessing the type of wine.  An album of photos from the event is posted in the “Photo Album” section of of my parallel website at http://www.globalenvironmentallaw.com. 

COP-19 and Japan's Revised Copenhagen Commitment, Philippine Relief, Ecuador Court Halves Chevron Judgment, Unilever Palm Oil Pledge & Mercury Convention (by Bob Percival)

The 19th Conference of the Parties to the UN Framework Convention on Climate Change (COP-19) opened in Warsaw last Monday.  Expectations are low, but the focus is on creating a roadmap to an eventual agreement by 2015 on a successor to the Kyoto Protocol and the development of mechanisms for compensating developing countries who suffer loss and damage from climate change.  A pall was cast over the negotiations when the government of Japan announced on Friday that it has scaled back its commitment to reduce greenhouse gas (GHG) emissions due to the shutdown of its nuclear power industry in the wake of the Fukushima Daiichi disaster.  Japan now pledges that its GHG emissions will increase by no more than 3% over 1990 levels by the year 2020.  In response to the Copenhagen Accord Japan had pledged in January 2010 to seek a 25% reduction in its GHG emissions by 2020.  Prior to the March 2011 Fukushima accident, nuclear power had provided 30% of Japan’s electricity.  At the Warsaw negotiations Japan pledged to contribute $16 billion in public and private funds by 2015 to help developing countries reduce their GHG emissions.  On Wednesday Australia’s new government introduced legislation to repeal that country’s carbon tax, fulfilling a campaign pledge.  Hiroko Tabuchi and David Jolly, Japan Backs Off From Emissions Target, Citing Fukushima Disaster, N.Y. Times, Nov. 16, 2013, at A4.

The Philippines is struggling to recover from the devastation of Typhoon Haiyan, which some believe to have been the most powerful storm in history.  At the COP-19 negotiations, Philippine delegate Naderev “Neb” Saño made a plea for “drastic action now to ensure that we prevent a future where super typhoons become a way of life.” Philippine public interest environmental lawyer Tony Oposa (see July 28, 2013 blog post) reports that while none of the staff of his School of the SEA (Sea and Earth Advocates) perished, five of the school’s seven buildings were destroyed.  From the maps tracing the typhoon’s path, it looked to me like Tony’s school was directly in the path of the fiercest part of the typhoon, but he reports that it hit during very low tides and that there is a very large tidal flat protecting the school.  The school’s White House (conference hall) was damaged, but their Climate Change House, built after the school was hit by Typhoon Frank in 2008, survived.  Durwood Zaelke’s Institute for Governance & Sustainable Development (IGSD) (info@igsd.org) will be coordinating efforts to collect contributions for rebuilding the School of the SEA. 

On Tuesday Nov. 12, Ecuador’s National Court of Justice upheld a judgment against Chevron Corporation for oil pollution in the Amazon during the 1980s, but cut the size of the award in half from $19 billion to $9.5 billion.  The initial decision in February 2011 by a trial court in Lago Agrio, Ecuador had specified that the judgment would double if Chevron did not apologize to the people of Ecuador within 10 days.  This was the portion of this decision that I questioned from the outset.  Chevron refused to apologize and thus it was hit with the punitive damages award that Ecuador’s highest court has now properly thrown out.  It is revealing that the plaintiffs actually praised the decision by Ecuador’s highest court because it upheld the rest of the judgment.  Meanwhile the unusual trial of Chevron’s Racketeering Induced Corrupt Organizations (RICO) lawsuit against the Ecuadoran plaintiffs and their attorneys continues in federal district court in New York, the court that most U.S. media organizations fail to mention was the place the plaintiffs initially filed their lawsuit.  Mercedes Alvaro & Daniel GIlbert, Ecuador Affirms, Halves Chevron Judgment, Wall St. J., Nov. 13, 2013, at A1.  The plaintiffs initial lawsuit eventually was dismissed in the U.S. at the behest of the oil company defendants who insisted that it should be heard by the courts of Ecuador. Having lost in Ecuador, they are now charging that the very courts that they claimed were the best place to hear the claims are corrupt.

On February 12 Unilever PLC, the world’s largest purchaser of palm oil, announced that by the end of 2014 it will ensure that all of the palm oil it buys comes from verified sources.  The company is making this pledge so that it eventually will be able to drop suppliers who produce palm oil in ways that unnecessarily damage the environment.  Unilever purchases1.3 million tons of palm oil each year. Unilever previously has promised that by 2020 it will only purchase palm oil from sources that are certified as sustainable.  The company admitted that at the end of last year only 5% of the palm oil it purchased came from verified and certified sources. Other large palm oil purchasers, including Nestle SA and the Procter & Gamble Company have committed to sustainable palm oil sourcing.  Peter Evans, Unilever to Verify Palm-Oil Suppliers, Wall St. J., Nov 13, 2013, at B7.

Last week’s blog (Nov. 10, 2013 blog post) reported that on November 6 the U.S. signed the Minimata Convention on Mercury, and it disputed press reports that the U.S. had “ratified” it, noting that the Senate will not ratify any treaty in the current political climate.  It turns out that the press confusion over “ratification” stemmed from the fact that the U.S. also became the first nation to deposit its “instrument of acceptance” of the Convention with the United Nations.  The Convention provides that it will enter into force “on the ninetieth day after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession.”  The State Department explained why it formally accepted the Minimata Convention without seeking Senate ratification in the following statement: “The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority.  The Minimata Convention complements domestic measures by addressing the transnational nature of the problem.” In 2008 Congress passed, and President George W. Bush signed into law the Mercury Export Ban Act that added §§ 6(f) and 12(c) to the Toxic Substances Control Act to prohibit the sale, distribution, transfer and export of elemental mercury.  Coupled with EPA’s Clean Air Act regulations on mercury emissions from power plants, the U.S. does not need new legislation on mercury so the Minimata Convention can be accepted as an executive agreement. 

On November 14 the Tennessee Valley Authority (TVA) announced that it is closing eight coal-fired generating units at power plants it currently operates at three locations in Alabama and Kentucky.  These plants are among the oldest and dirtiest sources of electricity in the U.S.  In 2011 TVA promised the U.S. Environmental Protection Agency in a settlement that it would close 18 coal-fired generating units by the year 2018.  Many electric utilities in the U.S. are shifting away from coal in favor of cheaper natural gas. Rebecca Smith, In a Blow to Coal, TVA to Shut 8 Units, Wall St. J., Nov. 15, 2013, at B3.

On Monday Joanna Goger from the Environmental Studies Program at the University of Maryland College Park gave a guest lecture on protection of biodiversity in my Environmental Law class.  Joanna is coauthoring a book on Water Resources Management and Protection with my colleague Mike Pappas and I.  On Monday night my wife and I attended Freshfarm Market’s annual Farmland Fest at the Ritz-Carlton Hotel in Washington D.C.  We won the silent auction for an extraordinary case of wine from the wine cellar of restaurateur Mark Kuller.  I may serve some bottles of this wine next Friday Nov. 22 when Maryland’s Environmental Law Program hosts our 22nd Annual Environmental Law Winetasting.

On Friday November 15 I was visited by Andriy Volkov of Odessa State University of Environmental Studies in Ukraine.  We discussed environmental issues facing Ukraine including the status of efforts to strengthen containment of radioactive contamination inside the damaged nuclear reactor at Chernobyl (see March 22, 2009 blog post concerning my visit to Chernobyl).  Professor Volkov demonstrated the computer program he created to track environmental contamination for his startup Environmental Decision Support Services (http://environmental-dss.com).

U.S. Signs Mercury Treaty, COP-19 to Open in Warsaw, U.S. Off-Year Election, Tesla in Beijing, Macalester Visit (by Bob Percival)

On November 6 Dr. Kerri-Ann Jones, the U.S. Assistant Secretary of State for Oceans and International and Scientific Affairs, signed the Minimata Convention on Mercury on behalf of the United States.  U.S. representatives to the international conference launching the treaty in Japan last month had to go home without signing the convention because of the U.S. government shutdown (see October 13, 2013 blog post).  One news organization last week erroneously reported the signing as meaning that the U.S. had “ratified” the convention, something that would require a two-thirds vote in the U.S. Senate.  Even the Law of the Sea Treaty has failed to win Senate ratification despite overwhelming bipartisan support from political leaders, business interests, and the environmental community.

Tomorrow the 19th Conference of the Parties to the UN Framework Convention on Climate Change (COP-19) and the 9th session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol begins in Warsaw, Poland.  This is the annual global climate gathering that now focuses on how to fulfill the promise of the “Durban Platform,” made two years ago at COP-17, to develop a successor to the Kyoto Protocol to control global greenhouse gas emissions (GHGs) effective in 2015. The COP will run from November 11 to 22.  It is being held at the National Stadium in Warsaw.  The UN website for the conference is at: http://unfccc.int/meetings/warsaw_nov_2013/meeting/7649.php.  The host country website for the conference is at: http://www.cop19.gov.pl.  Poland, which is heavily dependent on power from coal-fired power plants, has been one of the countries most resistant to efforts to control emissions of GHGs.  Last year COP-16 was held in Doha, Qatar, the country with the highest per capita emissions of GHGs in the world.

On November 5 off-year elections were held in some U.S. states.  By a vote of 52% to 48% Washington state voters rejected a ballot initiative that would have required labeling of genetically-engineered food products.  After the initiative was first proposed, polls showed that a majority of voters favored it, but a massive advertising campaign by food and biotech companies helped turn public opinion around.  The Grocery Manufacturers Association (GMA) spent $11 million of the $22 million spent by the opponents.  The companies argued that labeling is expensive and unnecessary because genetically engineered food products are just as safe as other products.  In 2012 opponents of GMO labeling spent $46 million to defeat a similar labeling initiative that initially had been favored to pass in California.  Proponents of Washington state initiative spent $8 million.  State law in Washington forced the disclosure of the identities of companies spending on the initiative.  It also was disclosed that GMA’s “Defense of Brand” strategy is planning seek federal legislation to preempt state GMO labeling laws.  Proponents of the initiative support just the opposite -- mandatory federal labeling legislation. Stephanie Strom, Food Companies Claim Victory Against Labeling Initiative in Washington State, N.Y. Times, Nov. 7, 2013, at A17.

Voters in three Colorado cities approved ballot measures to restrict hydraulic fracturing, while voters in a fourth narrowly rejected such a measure.  Five year moratoria on fracking were approved by voters in Boulder and Fort Collins.  Voters in Lafayette approved an outright ban on fracking.  Voters in Broomfield appear to have rejected a moratorium on fracking by only 13 votes out of more than 20,000 cast. In Youngstown, Ohio voters also rejected a ban on fracking. The fracking battle in Colorado now is expected to move statewide as the oil and gas industry tries to have local bans preempted by state law.  Russell Gold, Colorado Fracking Fight Looms After Local Bans Passed, Wall St. J., Nov. 7, 2013, at A8.

Speaking of preemption, last week the Food and Drug Administration (FDA) proposed to give manufacturers of generic drugs freedom to change the labels on their products to take account of newly acquired information.  FDA regulations require generics to use the same labels as brand name drugs, which spawned a legal anomaly.  In the Wyeth v. Levine case in 2009 the U.S. Supreme Court ruled that FDA approval of a therapeutic drug did not  insulate brand name manufacturers from state tort liability for failure to warn of subsequently discovered dangers of a particular method of injecting the drug.  However, in Pliva v. Mensing in 2011 the Court held that state tort liability was preempted for the very same drug if manufactured in generic form because generic manufacturers are not allowed to change the labels.  Noting that this difference in preemption “made little sense,” the Court majority observed that the regulations could be changed by the FDA or Congress.  The FDA has now proposed to change the regulations.  While normally one would expect an industry to support a move to relax the regulations applicable to it, this is not how the generic pharmaceutical industry reacted last week.  Fearful of being subject to the same tort liability as brand name manufacturers, generic manufacturers did not voice support for the FDA proposal.  The Generic Manufacturers Association observed that it “could raise costs”.  The U.S. Chamber of Commerce declared that the “FDA’s proposal writes a prescription for mega lawsuits against generic drug makers.” Thomas M. Burton & Brent Kendall, FDA Proposes Letting Generic- Drug Makers Change Labels, Wall St. J., Nov. 8, 2013.

Last week U.S. electric car manufacturer Tesla Motors opened its first showroom in Beijing.   The showroom is in the Parkview Green Mall in the Chaoyang district of Beijing.  Tesla has had a showroom in Hong Kong for a year and the first Tesla to be imported to the Chinese mainland was delivered from there to Beijing three weeks ago. The China Daily reports that the Tesla S is priced in Beijing at between $146,000 and $200,000, approximately twice the price in the U.S., which is largely the result of Chinese import duties and greater transportation costs.  Tesla reportedly is making an initial shipment of 100 Tesla S’s for the mainland Chinese market.

On Thursday I traveled to Minnesota to visit faculty and students in Macalester College’s interdisciplinary Environmental Studies program.  I had dinner on Thursday night with Macalester faculty and a lunch with students on Friday.  On Friday afternoon I gave a lecture on “Rio+20 and the Evolution of Global Environmental Law” to Professor Roopali Phadke’s Environmental Politics and Policy course.  I continue to be enormously impressed with the school’s Environmental Studies program and the excellent quality of its faculty and students.

Treasury to Oppose International Funding for Coal Plants, Pacific Northwest Climate Agreement, EU Aviation Charges, Canadian EA Regs & Invasive Carp (by Bob Percival)

On October 29 the U.S. Treasury Department announced that the U.S. government no longer will support coal-fired powerplant projects funded by the World Bank and other international development banks.  Michael D. Shear, U.S. Says It Won’t Back New International Coal-Fired Power Plants, N.Y. Times Oct. 30, 2013, at A18.  While the U.S. does not have veto power over such projects, the World Bank announced in July that it would significantly restrict future funding for them.  In his new book published by Island Press Foreclosing the Future: The World Bank and the Politics of Environmental Destruction, my friend Bruce Rich estimates that of the $10 billion in energy lending by the Bank in 2010 nearly two-thirds went to support fossil fuel projects and only one-third for energy efficiency and renewable energy projects.  Bruce’s book has been the subject of some favorable reviews recently.  See Pilita Clark, Foreclosing the Future, Financial Times, Nov. 1, 2013, and Mimi Dwyer, Where Did the Anti-Globalization Movement Go? The New Republic, Oct. 25, 2013. Bruce will be doing a book event at Busboys & Poets (14th & V Streets) in Washington, D.C. on Monday November 11 at 6:30pm.

On October 28 a new agreement to coordinate efforts to control greenhouse gases (GHG) emissions was signed in San Francisco by the governors of California, Oregon and Washington and the environment minister of British Columbia.  The pact pledges that the three U.S. states and the one Canadian province will adopt controls on GHG emissions, standardize energy efficiency standards, and promote greater use of zero emissions vehicles.  More than 53 million people live in the three states and British Columbia, which together account for $2.3 trillion in gross domestic product that would represent the fifth largest economy in the world.  The state legislatures of Oregon and Washington previously have balked at adopting the kind of aggressive laws to control GHG emissions that California has adopted.  Michael Wines, Climate Pact Is Signed by 3 States and Partner, N.Y. Times, Oct. 30, 2013, at A18.

Last month in Montreal delegates to the general assembly of the International Civil Aviation Organization (ICAO) agreed in principle to develop a market-based mechanism to neutralize greenhouse gas (GHG) emissions from aviation by the year 2020.  In the meantime the EU is proposing a scaled-back version of its controversial emission charges for aviation that between 2014 and 2020 would apply only to emissions made over EU airspace instead of to emissions from the entire flight to or from the EU.  While this represents a narrowing of the previous EU regulations that were suspended for one year to give the ICAO time to negotiate an agreement, it has been denounced by non-EU countries as inconsistent with the spirit of the Montreal agreement, indicating that the controversy may resume in the future.

The government of Canada has announced amendments to its environmental impact assessment regulations that will exclude from assessment certain types of projects and those that fall below certain size thresholds.  Excluded projects reportedly will include “groundwater extraction facilities; heavy oil and oil sands processing facilities; pipelines, other than offshore pipelines, and electrical facilities not regulated by the National Energy Board; potash and other industrial mineral mines; and a range of industrial facilities, including pulp mills, pulp and paper mills, steel mills, metal smelters, leather tanneries and textile mills, as well as manufacturing facilities for chemicals, pharmaceuticals, pressure-treated wood, particle board, plywood, chemical explosives, lead-acid batteries and respirable mineral fibers.” Peter Menyasz, Canada Amends Regulations for Assessments to Focus on Projects that Pose Most Risks, BNA Daily Environment Report, Oct. 29, 2013. The regulations also designate other projects for assessment including the first offshore exploratory oil wells in an area licensed for exploration and expansions in oil sands mines.

On October 28 scientists announced that four Asian grass carp had successfully reproduced in the Great Lakes watershed.  Great Lakes states have been struggling to prevent invasive species of Asian carp that have plagued the Mississippi River watershed from reaching Lake Michigan and the Great Lakes watershed.  The carp were found in Ohio’s Sandusky River, a tributary of Lake Erie.  The Army Corps of Engineers, which has employed an electronic barrier in an effort to stop the spread of the carp, is working on a long-term plan to combat the invasive carp.

EU Parliament Rejects New Fishing Subsidies, China's Latest "Airpocalypse," Greenpeace Piracy Charges Changed, ELI Award Dinner (by Bob Percival)

On October 23, the European Parliament voted to reject new subsidies to expand saltwater fishing fleets in the European Union.  The Parliament approved an $8.9 billion (6.5 billion Euro) budget to finance the EU’s Common Fisheries Policy for seven years.  The budget includes improved funding for research on fish stocks and enforcement of conservation measures, provisions sought by environmental groups.  However, the Parliament approved funding to subsidize the purchase of new engines for existing vessels, which may slow the shrinking of Europe’s fishing fleet, which is believed to be two to three times larger than sustainable levels. David Jolly, European Parliament Rejects New Subsidies for Fishing Fleets, New York Times, Oct. 23, 2013.

Drought is now blamed for the cataclysmic collapse of Bronze Age civilization in the Middle East during the years 1250-1100 B.C.  A study published on October 21 in Tel Aviv: Journal of the Institute of Archaelogy of Tel Aviv University examined ancient pollen grains from the years between 3,500-500 B.C.  The grains were extracted from sediment laying 65 feet underneath the bed of the Sea of Galilee and at Wadi Zeelum on the western margins of the Dead Sea. High resolution analysis of the grains of fossilized pollen showed a sharp decline in the growth of trees and other vegetation believed to be caused by sharp declines in precipitation.  Isabel Kershner, Pollen Study Points to Drought as Culprit in Bronze Age Mystery, N.Y. Times, Oct. 23, 2013, at A11.

Chinese authorities pursued emergency measures to combat extreme air pollution that has engulfed the northeastern town of Harbin, a city of 11 million people.  As levels of particulates in the ambient air reached more than forty times concentrations considered safe, roadblocks were established to check vehicle tailpipe emissions and officials went into the surrounding countryside to force farmers to stop burning cornstalks.  Schools were closed and flights were suspended at the Harbin airport. On October 24 China’s Ministry of Environmental Protection (MEP) announced that it was sending inspection teams to Harbin and other cities across the country to ensure compliance with environmental regulations. Edward Wong, Response to a City’s Smog Points to a Change in Chinese Attitude, New York Times, Oct. 25, 2013, at A12.

Russian authorities have dropped piracy charges, which carried 15-year prison terms, against Greenpeace activists who were seized while protesting offshore oil drilling in the Barents Sea.  The activists now have been charged with hooliganism, which carries a maximum seven-year prison term.  In response to the new charges Greenpeace stated that the activists “are no more hooligans than they were pirates.” Vladimir Chuprov, a representative of Greenpeace Russia stated that the Russian government’s action “represents nothing less than an assault on the very principle of peaceful protest.”  Paul Sonne, Russia Lessens Activists’ Charges, Wall St. J., Oct. 24, 2013, at A18.   On October 23 Russia’s Foreign Ministry announced that it would not attend an arbitration hearing by the International Tribunal of the Law of the Sea in Hamburg that had been sought by the government of the Netherlands in an effort to win release of the seized Greenpeace vessel Arctic Sunrise.

On Tuesday October 22 I attended the Environmental Law Institute’s annual award dinner at the Omni Shoreham Hotel in Washington.  This event has become what ELI proudly describes as the year’s largest gathering of environmental lawyers.  As always, it was great to see so many of my former students at the event. This year’s award winners were former Secretary of State George P. Shultz and philanthropist Thomas F. Steyer.  Together they led the successful, bipartisan campaign to defeat Proposition 23, a voter initiative that would have repealed California’s statewide program to control greenhouse gas emissions. Shultz, who is 93 years old, appeared by videotape and spoke about his long history of involvement in environmental efforts including the creation of EPA in 1970 and the ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer.  He indicated his support for measures to internalize the true costs of carbon and expressed optimism about the future direction of environmental policy.  In his acceptance speech Steyer stressed the importance of building bipartisan coalitions even in the face of current political polarization.  Senator Amy Klobuchar (D-Minn) introduced Steyer and also expressed optimism about the future, noting that EPA is in most capable hands with Gina McCarthy as administrator and that public backlash is mounting against anti-environmental extremists.  

Supreme Court to Review GHG Regs, Chevron RICO Trial Opens, Australian Carbon Tax, Kiribati Climate Asylum Claim, EU Delays Vehicle Regs (by Bob Percival)

On October 15, 2013 the U.S. Supreme Court announced that it will review a portion of the D.C. Circuit’s decision upholding EPA’s first regulation of greenhouse gas emissions in Coalition for Responsible Regulation v. EPA.  The Court limited its review to a single question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”  This means that the Court will not review EPA’s endangerment finding or tailpipe rule.  The focus in the Supreme Court instead will be on whether EPA can use the prevention of significant deterioration (PSD) program to regulate new sources of greenhouse gas (GHG) emissions.  As a result, EPA’s basic decision to use the Clean Air Act to regulate emissions of greenhouse gases no longer will be subject to legal challenge.  The question will be whether new and existing sources can be regulated in the absence of EPA promulgating a national ambient air quality standard (NAAQS) for GHG emissions under the Clean Air Act.  The case will be argued in the Supreme Court in early 2014 and it is likely to be decided before the Court adjourns at the end of June 2014.  

On Tuesday October 15 Chevron’s lawsuit against the plaintiffs and lawyers who successfully sued it for oil pollution in Ecuador opened in federal district court in New York.  The case is being tried before Judge Lewis Kaplan after Chevron dropped its claim for $100 million in damages to avoid a jury trial.  The case is the latest twist in decades of litigation initially brought in the same New York court nearly 20 years ago.  The case was dismissed from the U.S. courts in 2002 when the U.S. Court of Appeals for the Second Circuit accepted the oil company’s argument that the case instead should be heard in Ecuador.  But the court conditioned the dismissal on the company’s promise that it would accept the jurisdiction of the Ecuadoran courts.  After several years of legal proceedings in Ecuador, an Ecuadoran court ruled against Chevron in February 2011 and Chevron now is claiming that the judgment was a product of a fraudulent conspiracy between the plaintiffs, their lawyers, and the Ecuadoran judiciary.

Just as extreme heat and wildfires are about to return to Australia, new Australian Prime Minister Tony Abbott on October 15 unveiled his promised legislation to repeal the country’s carbon tax.  The carbon tax was a major campaign issue in last month’s national election in Australia that swept Abbott to power.  Under the proposed legislation, the carbon tax would be repealed effective July 1, 2014.  The Abbott government also plans to abolish the independent Climate Change Commission and the Clean Energy Finance Corporation.  Its argues that emissions of greenhouse gases can be better controlled through a “direct action” program offering competitive government grants to reduce emissions.

On October 16 Loane Teitiota, a 37-year old resident of the island of Kiribati, asked the High Court of New Zealand to grant him asylum, claiming that rising sea levels have made it too dangerous for him to return to his home. Teitiota is appealing the rejection of his asylum request by a New Zealand immigration tribunal.  The New Zealand High Court is expected to rule within a few weeks. Rising seas have damaged crops and contaminated drinking water supplies on Kiribati, one of the low-lying areas on earth.  The government of Kiribati has purchased 6,000 acres of land on Fiji to provide a possible resettlement site for some of its 100,000 residents. Lucy Craymere, Asylum-Seeking Man Cites Rising Seas, Wall St. J., October 17, 2013, at A10.

At a meeting of European environment ministers in Luxembourg on October 14, Germany joined Poland and the UK in opposing an agreement with the European Parliament to require motor vehicles to meet tougher GHG emissions standards by 2020.  The standards would require autos to emit no more than 95 grams of carbon dioxide per kilometer.  Acting at the behest of German luxury carmarkers, Germany succeeded in having the effective date of these standards postponed to 2024.  France, the Netherlands and Spain opposed the proposal, while Portugal and some eastern European countries supported it. Matthew Dalton, EU Emissions Plan Hits Roadblock, Wall St. J., Oct. 15, 2013, at B3. 

On October 14 the European Environmental Agency published an assessment of air quality in Europe.  The study, Air Quality in Europe -- 2013 Report, found that 90% of urban residents are exposed to air pollution at levels deemed harmful to human health.  The report noted that transboundary pollution remains a significant problem.  For many EU countries more than half of the small particulates (PM 2.5) found in their air originate in other countries.  Particulates and ozone pollution remain the most serious air pollution problems in Europe.  A copy of the report is available online at: http://www.eea.europa.eu/publications/air-quality-in-europe-2013.  The ten cities identified in the report as having the most serious air pollution problems are all located in Bulgaria and Poland.  These cities exceeded EU targets between one-third and one-half of the time in 2011.  Danny Hakim, Bulgaria’s Air Is Dirtiest in Europe, N.Y. Times, October 15, 2013, at B3.

On October 17 the Beijing city government announced a new strategy for responding to severe episodes of air pollution referred to as “Six Stops and One Wash.”  Private vehicles will be banned from the roads on alternate days depending upon their license numbers and street washing will be increased to hold down dust pollution.  If severe pollution continues for three days or more, factories will be shut down and construction halted and schools can be closed in certain circumstances.  Public transportation will be expanded on days when restrictions on private vehicle use take effect. Didi Kirsten Tatlow, Beijing City Officials Issue Rules to Counter the Effects of Persistent Air Pollution, N.Y. Times, Oct. 19, 2013, at A4.

The shutdown of the U.S. federal government disrupted the plans of many visitors to Washington, D.C., including a high-level delegation of Chinese environmental enforcement officials who were expecting to spend last week at EPA headquarters. The delegation, hosted by the Beijing office of the Environmental Defense Fund (EDF), including top officials from China’s Ministry of Environmental Protection (MEP) and enforcement officials from13 of China’s provinces.  It was led by Wang Dongqing, Deputy Director General of the Department of Environmental Enforcement and Inspection of MEP. At EDF’s request, I agreed to speak to the group about environmental enforcement issues on October 15. They seem surprised at how heavily the U.S. relies on self-monitoring and self-reporting by permit holders and the fact that U.S. regulatory officials are not subject to prosecution when they fail to prevent violations.  The officials also seemed fascinated by an automobile parked outside of EDF’s DC office.  Several had taken photos of it on their cellphone cameras.  It turned out to be my all-electric Tesla.

Mercury Treaty Signed, Haitian Cholera Victims Sue UN, French Fracking Ban Upheld, VELJ Symposium, ABA SEER Conference & ACOEL Meeting (by Bob Percival)

On October 10 representatives from 92 nations signed the Minimata Convention on Mercury.  The signing ceremony was held in Minimata, Japan, site of horrendous mercury poisoning caused by a chemical plant dumping mercury into the harbor of the small fishing village during the 1950s and 1960s.  Countries signing the treaty pledged to control emissions of mercury from new powerplants and to phase out the use of mercury in many products by the year 2020.  All mercury mining is to be neded in 15 years.  The treaty will take effect when ratified by 50 countries, which is expected to occur in three to four years.  Representatives of the U.S., who helped negotiate the treaty, left early without signing it due to the government shutdown.  

On October 9 victims of the deadly cholera epidemic in Haiti filed a class action lawsuit against the United Nations in federal district court in New York.  The lawsuit alleges that the October 2010 cholera outbreak, the first in Haiti in more than a century, can be traced to human sewage from Nepalese UN peacekeepers that leaked from pipes at the base of the United Nations Stabilization Force into a tributary of the Artibonite River. It is estimated that 8,300 Haitians died in the outbreak and 650,000 others were taken ill.  The UN undoubtedly will assert its long-established immunity from suit under the Convention on the Privileges and Immunities of the UN of 1946.  While expressing sympathy for the plight of the victims, UN officials have not conceded that its sewage caused the outbreak. Plaintiffs argue that the Convention specifies that the UN is to establish appropriate modes of settlement for third-party private law claims, but that it has failed to do so.  Due to the UN’s immunity, the lawsuit is  likely to be dismissed, but the widespread publicity it is receiving may increase pressure on the UN to provide some form of compensation to the victims.

France’s Constitutional Council has upheld that country’s ban on hydraulic fracturing.  The court rejected an appeal by a U.S.-based company, Schuepback Energy, which had been issued two permits to explore for shale gas prior to the fracking ban taking effect.  The court held that the environmental purpose of the fracking ban was legitimate, despite the company’s claim that there was no proof of environmental harm from fracking.  The company’s lawyers said they would continue separate litigation challenging the cancellation of their permits and seeking compensation  of €1 billion.  The decision was denounced by the French energy industry’s trade association, the GEP-AFTP, but applauded by Phillippe Martin, France’s environmental minister.  While France is believed to have some of the largest reserves of shale gas and oil in the EU, due to more extensive use of fracking in the U.S., the price of natural gas in Europe is three to four times higher than in the U.S. Hugh Carnegy, France Upholds Ban on Fracking, Financial Times, Oct. 12, 2013, at 10. 

This week I participated in three different conferences in three days.  On Wednesday I spoke on the opening panel of the Virginia Environmental Law Journal’s Symposium on “The Promise and Limits of Presidential Action on Climate Change.” The symposium was held at the University of Virginia Law School in Charlottesville.   Also on my panel were former EPA Assistant Administrator  Jeff Holmstead, UVA Law Professor Michael Livermore, UCLA Law Professor Ann Carlson, and USF Law Professor Alice Kaswan.  Our panel discussed the Obama Climate Action Plan, EPA’s proposed new source performance standard for powerplant carbon emissions, and EPA’s plans to use §111(d) of the Clean Air Act to regulate existing sources.  I gave a brief history of the use of presidential authority to protect the environment and argued that it is particularly appropriate for the President to act when Congress is in gridlock on environmental issues.  Prior to driving my Tesla down to Charlottesville, I was surprised to learn that there was only a single, public EV charging station there (in the Central Grounds Parking Garage on campus), but I was able to use it with no problem and drive back to Baltimore for my Environmental Law class late Wednesday.  

  

On Wednesday evening I attended a party at the National Aquarium in Baltimore sponsored by the law firm of Beveridge & Diamond.  The party was held in conjunction with the 21st Fall Conference of the ABA Section on Environment, Energy and Resource (SEER) Law.  I was delighted to see many of my former students at the party, including many who now work at the firm.

On Thursday I spoke on a panel at the ABA SEER conference on the constitutional limits to state authority to combat climate change.  I provided an opening overview of preemption and dormant commerce clause doctrines and how they have been applied in environmental cases.  I emphasized that the basic doctrines are relatively simple (the former focusing on congressional intent and the latter on whether state laws discriminate against interstate commerce), but they are often difficult to apply in practice.  I then introduced the Ninth Circuit’s September 18th decision in Rocky Mountain Farmers Union v. Corey (see Sept. 22, 2013 blog post), which rejected claims that California’s Low Carbon Fuel Standard (LCFS) violated the dormant commerce clause.  Also on the panel with me were Sean Donahue, who argued Rocky Mountain Farmers for the victorious environmental intervenors, and Shannon Broome, who represented the plaintiffs.  The Ninth Circuit’s decision does an excellent job of explaining how the LCFS calculates carbon intensity and why it does not discriminate against out-of-state fuel producers even though some carbon intensity values are calculated on the basis of location.

On Thursday night I flew to Boston where I attend the annual meeting of the American College of Environmental Lawyers (ACOEL) on Friday and Saturday.  Jim Bruen, who came to China with me in August as part of ACOEL’s pro bono project, presented a report on the progress of this initiative, which has resulted in the signing of memoranda of understanding making ACOEL a clearinghouse for connecting U.S. environmental lawyers with Chinese environmental groups, including the Beijing office of the Natural Resources Defense Council.  At the luncheon on Friday I spoke to ACOEL’s Policy Committee about the work of environmental groups in China.  On Saturday morning I met in Boston with representatives of a Chinese company interested in designing innovative new approaches to teaching about sustainability and energy policy, a possible project for my sabbatical next year.

The U.S. Supreme Court did not make any announcement on Friday concerning the cert petitions it is considering that pertain to the D.C. Circuit’s June 2012 decision upholding EPA’s initial greenhouse gas regulations.  The Court may announce whether it is granting any of the nine petitions on Tuesday (the Court is closed tomorrow for the Columbus Day holiday).

BP Trial Resumes, Chevron Ducks Jury Trial, Florida Sues Georgia Over Water Use, Piracy Charges Against Greenpeace, Pollution Disrupts China (by Bob Percival)

The second phase of the trial against BP for the 2010 oil spill in the Gulf of Mexico began last week in federal district court in New Orleans.  This phase of the trial will focus on the dispute over the amount of oil released in the spill, which is crucial to determining the size of the ultimate civil penalty BP will have to pay.   In their opening, lawyers for the federal government claimed that BP lied about the amount of oil that was leaking from the bottom of the Gulf after the April 2010 blowout at the Macondo well that killed 11 people on the Deepwater Horizon oil rig.  On October 2 BP won an order from the U.S. Court of Appeals for the Fifth Circuit directing Judge Carl Barbier to reconsider claims administrator Patrick Juneau’s interpretation of a settlement agreement that BP claims was resulting in payments that were too generous.  BP originally believed that the settlement would cost the company $7.8 billion, but it raised this estimate to $9.6 billion last July. Approximately $3.7 billion already has been paid out under the settlement.

On September 30 Chevron dropped its request for damages in its RICO suit against the lawyers and plaintiffs who won what is now a $19 billion judgment against the company for oil pollution in Ecuador.  The move was an effort to avoid a jury trial of Chevron’s claims that the lawsuit was part of an elaborate conspiracy to defraud the company.  Daniel Gilbert, Chevron Bids to Skip Jury in Ecuador Suit, Wall St. J., Oct. 1, 2013, at B3.  Fearful that a jury would ruled against it, Chevron apparently is more eager to get a formal ruling of fraud from Judge Lewis Kaplan than it is to obtain compensation.  Kaplan previously issued an injunction to bar efforts to enforce the judgment anywhere in the world, an injunction that was overturned on appeal.  Defendants in the RICO suit, including Steven Donziger, former lead lawyer for the pollution victims, asked the U.S. Court of Appeals to remove Judge Kaplan from hearing the case because of his alleged bias.  However, after hearing oral argument on September 26, a three-judge panel of the Second Circuit denied the motion without giving a formal reason.  Based on the judges’ comments at oral argument, it is likely that the denial was based on mandamus to remove a judge being an extraordinary remedy and the fact that any decision Judge Kaplan makes can be challenged on appeal.  The trial is scheduled to begin on October 15.

On September 30 the state of Florida filed suit against the state of Georgia for excessive consumption of upstream water.  The suit was filed in the U.S. Supreme Court, which has original jurisdiction over lawsuits between states.  Florida, Alabama and Georgia have been fighting over water use for the past two decades, but previous lawsuits were filed against the U.S. Army Corps of Engineers to contest how it regulates interstate water use.  Florida argues that a historic collapse of oyster harvests in Apalachicola Bay has been caused by reduced water flows into it from the north.  Arguing that the lawsuit was “frivolous,” a spokesman for Georgia Governor Robert Bentley attributed the oyster collapse to overharvesting and drought.  Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J., October 1, 2013.

A Russian court in Murmansk has now filed piracy charges against all 30 people from 19 countries who were onboard the vessel Arctic Sunrise when it was used by Greenpeace activists to protest oil drilling in the Arctic (see blog posts from Sept. 22 and 29 of this year).  The charges, which carry prison terms up to 15 years, seem ludicrous on their face.  They are spawning protests aroudn the world, including in Russia, London, and the Netherlands, which has demanded the return of the vessel that flies its flag. 

Hazardous levels of air pollution plagued northern China this weekend, leading to flight cancellations and road closures during the end of China’s “Golden Week” holiday.  The pollution resulted in delayed starting times for golfers at the Reignwood Ladies Professional Golfing Association (LPGA) Classic, the first LPGA event ever held in China.  The U.S. Embassy in Beijing reported that air pollution levels reached 400 on Saturday night using an index in which anything over 301 is considered hazardous to health. Louise Watt, Pollution Disrupts Sports Events, Travel in China, Associated Press, October 6, 2013.

IPCC Draft Report, Lacey Act Lumber Raid, Russia Holds Greenpeace Activists, Initiative to Combat Elephant Poaching (by Bob Percival)

On September 27 the Intergovernmental Panel on Climate Change (IPCC) released its draft Fifth Assessment report from Working Group I (WGI) that focuses on summarizing the latest scientific information on global warming and climate change.  The report was prepared by 259 co-authors from 29 countries.  They reviewed 2 million gigabytes of data from climate model simulations and cited 9,200 publications, three-quarters of which were published after the IPCC’s Fourth Assessment report was published in 2007.  The report concludes that “human influence on the climate system is clear” and that “[c]ontinued emissions of greenhouse gases will cause further warming and changes in all components of the climate system.”  The report estimates a likely range of warming between 1.5C to 4.5C (roughly 3 to 8 degrees Fahrenheit).  It concludes that “[l]imiting climate change will require substantial and sustained reductions of greenhouse gas emissions.”  A complete copy of the draft report will be made available online on September 30.  A short “Summary for Policymakers” is available now at: http://www.climatechange2013.org/images/uploads/WGIAR5-SPM_Approved27Sep2013.pdf. Additional IPCC work group reports next year will focus on Impacts, Adaptation and Vulnerability (WGII) and Mitigation of Climate Change (WGIII) before a Synthesis Report is issued next fall.  In an effort to confuse the public, climate change deniers have formed a group they call the “Nongovernmental International Panel on Climate Change (NIPCC),” which issued a report published by the Heartland Institute regurgitating the standard claims of the deniers. 

On September 26 federal agents raided the Virginia offices of Lumber Liquidators as part of an investigation of possible violations of the Lacey Act, which prohibits importation of wood products harvested in violation of U.S. or foreign laws.  Although the search warrants supporting the raid remain under seal, reportedly the company is suspected of importing wood products originating in eastern Siberia where their harvest is prohibited to protect the endangered Siberian tiger.  The Lacey Act originally was enacted in 1900 to prevent interstate transport of wildlife that had been illegally hunted.  It was expanded over time to prohibit the import, export, sale or purchase of wildlife taken in violation of state, federal, tribal, or foreign law.  In 2008 the Lacey Act was amended to expand its reach to timber and timber products.   In July 2012 Gibson Guitar Corporation settled federal charges that it had imported wood ebony from Madagascar even after learning that it had been harvested illegally.  Lumber Liquidators issued a statement stating that it “takes its sourcing and compliance very seriously” and employs “more than 60 professionals around the world” who monitor compliance at the 110 domestic and international mills from which its products come.  After news of the raid became public, Lumber Liquidator’s stock price opened 12.8% lower on September 27, but it rebounded to close down 5.2%.

A court in Murmansk, Russia has ordered thirty Greenpeace activists to be held in custody for two months while Russian authorities investigate potential piracy charges against them.  The thirty were on board the Greenpeace vessel Arctic Sunrise when it was boarded by agents of Russia’s Federal Security Service (FSB) in international waters off the northern coast of Russia.  The boarding came after some of the activists attempted to climb onto the Russian oil rig Prirazlomnaya to protest oil drilling in the Arctic.  Marc Rutte, Prime Minister of the Netherlands, has protested the fact that Russian authorities did not contact him before boarding the vessel, which flies the flag of the Netherlands.  Russian President Vladimir Putin stated that the activists “obviously are not pirates,”  but he has not acted to free the activists.

A new $80 million global effort to combat elephant poaching was launched on September 26, the final day of the annual meeting of the Clinton Global Initiative.  The new program will add 3,100 additional guards at 50 sites with a population of 285,000 elephants, approximately two-thirds of Africa’s elephant population.  It will add sniffer-dog teams to 10 international entry points.  Ten nations in Asia that are prominent consumers of ivory -- including China, Japan and Vietnam -- have pledged to launch efforts to reduce consumer demand for it.  Several African countries have pledged to increase penalties for elephant poaching.  It is estimated that 35,000 elephants were killed in 2012.  The carcasses of scores of elephants poisoned by poachers with cyanide have been discovered this month at Hwange National Park in Zimbabwe and several arrests have been made.