EPA Criticizes Keystone XL SEIS, BP Trial, Student Blog Posts, TTIPS Conference (by Bob Percival)

As the comment period closed on the State Department’s Supplement Environmental Impact Statement (SEIS) for the Keystone XL pipeline project on April 22, the U.S. Environmental Protection Agency (EPA) submitted comments arguing that the SEIS contained insufficient information to enable the agency fully to assess the impact of the project.  The EPA comments question the SEIS’s central assumption that the oil sands crude will find its way to market whether or not the pipeline is built, noting that alternative transportation options could be more costly and congested.  They note that the 2010 Enbridge spill of oil sands crude in Michigan demonstrated that it is more difficult to remediate spills of such oil than it is to clean up conventional oil spills because oil sands crude does not appreciably bidegrade.  The EPA comments recommend that additional oil spill response measures be required and they suggest further exploration of an alternative route that would parallel the existing pipeline.  A copy of EPA’s comments is available online at: http://www.epa.gov/compliance/nepa/keystone-xl-project-epa-comment-letter-20130056.pdfWhile EPA’s comments are a significant development, they would not preclude a decision by the State Department to approve the project.  A decision may be reached by the end of the year.

Last week marked the 43rd anniversary of Earth Day and, a few days before, the third anniversary of the Deepwater Horizon oil spill.  The first phase of the trial of the civil lawsuits against BP and its partners concluded in federal court in New Orleans the week before.  The trial is scheduled to resume on September 16.  On April 24, federal district judge Carl Barbier, who is conducting the trial, issued an order directing the parties to brief several issues.  The questions surround what the appropriate legal standard should be for finding “gross negligence” or “willful misconduct” under the Clean Water Act and the Oil Pollution Act of 1990, what acts or omissions are necessary to support such findings, and the impact of compliance with regulations or “industry standards.”  

Today I am posting the final two blog posts from students in my Global Environmental Law Seminar on my parallel blog at www.globalenvironmentallaw,com.  They include Melissa Timbers reporting on Chile’s HidroAysén hydroelectric project and Paul Kolster analyzing compliance with the Espoo Convention. To view the student blog entries click on the “Students” link at the top of this page.

On April 23 I spoke on a panel at a conference on “The New Transatlantic Trade and Investment Partnership: Aligning Investment, Patents, and Privacy.”  The conference, which was held at the Cosmos Club in Washington, D.C., was cosponsored by the American Institute for Contemporary German Studies and the Ecologic Institute.  It focused on the implications of the new Transatlantic Trade and Investment Partnership (TTIP) that President Obama emphasized in his State of the Union Address.  The TTIP negotiations between the U.S. and the EU will represent a further effort to lower trade barriers and harmonize regulatory standards between the U.S. and the EU.  Carolina Atkinson, special assistant to President Obama, opened the conference by discussing the prospects for the TTIP negotiations.  In my presentation I argued that regulatory harmonization should not lead to a reduction in health, safety and environmental protection standards, citing the conclusions of the EU-US High Level Working Group on Jobs and Growth, published on February 11, 2013 (http://ec.europa.eu/enterprise/policies/international/cooperating-governments/usa/jobs-growth/index_en.htm).  I also noted that any “race to the bottom” concerns that surrounded other trade agreements should not pose as big an obstacle to the TTIP negotiations because the EU already has standards that generally very high.

While waiting to speak at the conference I was briefly embarrassed when my cellphone rang.  I immediately turned the phone off and waited until the conference ended to listen to the voicemail.  It was from Tesla telling me that my all-electric Model S had just come off their California assembly line.  I can’t wait to relegate my weekly trip to a gas station to a distant memory.

Kiobel Decision Guts Alien Tort Statute, European Parliament Rejects ETS Plan, Arctic Fishing Negotiations & Uganda Oil Agreement (by Bob Percival)

By a 5-4 majority the U.S. Supreme Court on April 17 finally decided the Kiobel case, which initially was argued in February 2012 (see blog post of March 4, 2012) and reargued in October 2012 (see blog post of October 1, 2012).  The case was brought by survivors of environmental activists killed by the Nigerian military in Nigeria.  They sued Royal Dutch Shell, a Dutch corporation, in federal district court in New York. The plaintiffs alleged that the company conspired with the Nigerian military to kill their relatives to silence their complaints about Shell’s oil pollution in Nigeria.  The case involved review of a September 2010 decision by the U.S. Court of Appeals for the Second Circuit holding that corporations cannot be held liable under the Alien Tort Statute because corporations cannot violate international law (see blog post of October 4, 2010).

The Alien Tort Statute (ATS) was enacted in 1789 by the first U.S. Congress.  The ATS gives U.S. federal courts jurisdiction over “any civil action by an alien for tort only, committed in violation of the law of nations.”  For further background on ATS cases see the blog posts of September 2, 2007 and May 31, 2009. The five-Justice majority applied the presumption against extraterritorial application of U.S. law to the ATS to find that the Kiobel litigation could not be brought because it alleged torts occurring entirely outside the U.S.  In his majority opinion Chief Justice Roberts concludes that “all the relevant conduct took place outside the United States.  And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”   But the Chief Justice had a difficult time explaining why the presumption against extra-territorial application of U.S. law, a doctrine that had not even been developed at the time the ATS was enacted, should apply.  He notes that the doctrine is designed to avoid conflicts with foreign sovereigns by not applying U.S. norms to foreign conduct unless Congress so specifies. But the ATS does not seek to apply U.S. norms abroad, but rather only to create jurisdiction to redress egregious violations of international law. The Chief Justice concedes that the ATS permits actions against those who commit piracy on the high seas, but he concludes that the presumption against extra-territorial application bars suits for other international law violations committed within the territory of another country.

It was widely expected that the decisive vote in the case would come from Justice Kennedy.  Kennedy joined the Court’s four most conservative members in providing the fifth vote for the Chief Justice’s majority opinion.  In a truly classic example of a Kennedy concurring opinion, he tried to soften the harsh implications of the decision for human rights litigation.  Kennedy noted that in future cases alleging “serious violations of international law principles protecting persons, the proper implementation of the presumption against extraterritorial application [of the ATS] may require some further elaboration and explanation.”

In 2004 the Supreme Court had limited the reach of the Alien Tort Statute (ATS) by holding in Sosa v. Alvarez-Machain that the ATS provides federal courts with jurisdiction to hear only cases alleging violations of international norms that are “specific, universal, and obligatory.”  This effectively ruled out most environmental cases unless they also involved conduct that constituted egregious human rights violations.   In the Unocal and Saro-wiwa cases oil company defendants paid large sums to settle post-Sosa ATS litigation alleging that they had conspired with the Myanmar and Nigeria militaries to torture and kill their opponents.  See the June 12, 2009 blog post on the $15 million settlement Shell paid the survivors of Ken Saro-wiwa.  Despite Justice Kennedy’s concurrence, the Kiobel decision now apparently would rule out such litigation in the future because the conduct occurred abroad.  

The four liberal Justices rejected Chief Justice Roberts’s view that the ATS cannot apply to conduct that occurs in another country.  In an opinion by Justice Breyer they concurred in the judgment on other grounds, which may have represented an unsuccessful attempt to attract Justice Kennedy’s vote.  These four Justices argue that the majority’s use of the presumption against extraterritoriality is particularly inappropriate because the ATS was enacted to deal with foreign matters.  The four interpret the ATS to provide jurisdiction if any of the three following conditions are met: “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.”  Justice Breyer noted that the third condition could be met to prevent the U.S. “from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”  The four agreed that Kiobel should be dismissed because it involves the acts of a foreign corporation (Shell) that occurred outside the U.S. without affecting an important U.S. interest. 

What impact will the Kiobel decision have on environmental cases? No environmental plaintiff ever has successfully litigated an ATS case to judgment, though some cases have been settled on terms favorable to plaintiffs (see the Unocal and Saro-wiwa cases discussed above). Ironically the decision means that Chevron would have prevailed in the litigation against it for polluting Ecuador had it not fought and won dismissal from the U.S. courts on the grounds that Ecuador was a more convenient forum.  Chevron now is asking the U.S. courts to block enforcement of what it claims is a fraudulently obtained $18 billion judgment rendered by the Ecuadoran courts. By closing U.S. courts to such suits, plaintiffs will have to rely on foreign courts, as they have been doing in some cases (see, e.g., the litigation brought against the British trading firm Trafigura in London for dumping wastes on a beach in Cote D’Ivoire, discussed in the Sept. 20, 2009 blog post). 

On April 16 the European Parliament by a vote of 334-315 rejected a plan to reduce the supply of allowances issued under the EU’s Emissions Trading System to reduce greenhouse gas emissions. The plan was designed to boost the prices of the allowances, which have plunged below $4/ton, reducing incentives to reduce emissions. The plan was rejected out of concern that it would cause economic harm by increasing energy prices in Europe.  Stanley Reed, Europe Vote Sets Back Carbon Plan, N.Y. Times, April 17, 2013, ar B1.

The five countries that border on the Arctic -- the U.S., Russia, Denmark, Norway, and Canada --have agreed to negotiate an agreement to regulate commercial fishing near the North Pole.  The agreement reflects a recognition that global warming has thinned the Arctic icecap to the point where such fishing is becoming commercially feasible.  The negotiations will commence in Washington on April 29.  Andrew E. Kramer, Accord Would Regulate Fishing in Arctic Waters, N.Y. Times, April 17, 2013 at A9.

Last week the government of Uganda reached agreement with three international oil companies -- Tullow Oil, Total and Cnoc -- to construct an oil pipeline and 30,000 barrel/day refinery in Uganda.  The agreement is part of negotiations on how to develop Uganda’s newfound oil resources.  It is expected eventually to result in the first significant oil exports from the east coast of sub-Saharan Africa.  Nicholas Bariyo, Uganda Reaches Refinery Deal, Wall St. J., April 16, 2013, at B2.

Conoco Suspends Arctic Drilling Plans, BP Trial, Chevron Ecuador Case, MTBE Verdict, New FMC Chairman (by Bob Percival)

On April 10 ConocoPhillips announced that it was suspending plans to drill for oil in 2014 off the north shore of Alaska.  ConocoPhillips, which owns 98 oil exploration leases in the Chukchi Sea, had spent $650 million through the end of last year to prepare for Arctic drilling.  The company cited regulatory uncertainties in the U.S. as a reason for suspending its drilling plans.  After several mishaps last year, Royal Dutch Shell abandoned plans to drill in the Arctic in 2013 and Statoil ASA has delayed its planned Arctic drilling from 2014 to 2015.  Two of Shell’s drilling rigs were damaged last year in the harsh Arctic environment, which features rough seas, high winds, and extreme cold that make drilling there particularly difficult.  Ben Lefebvre & Tom Fowler, Conoco Halts Arctic Drilling Plans, Wall St. J., April 11, 2013, at B7.

Last week BP opened its defense in the trial of the federal government’s civil claims against it for the 2010 Deepwater Horizon oil spill.  After six weeks of testimony by the government and other parties that BP had ignored warnings of problems with the drilling rig and had sought to reduce costs while speeding up the drilling process, BP offered testimony that it had followed standard drilling procedures in the industry.  The crucial issue in the case is whether BP was gulity of “gross negligence,” which would result in the civil fines being three times larger than for simple negligence.

The battle between Chevron and Ecuadoran plaintiffs seeking to enforce an $18 billion judgment against the oil company for pollution in the Oriente region of Ecuador continues on several fronts.  The U.S. Court of Appeals for the Second Circuit has scheduled oral arguments for next month on a petition by the plaintiffs for a writ of mandamus to force removal for bias of the judge hearing Chevron’s RICO suit against the plaintiffs.  The judge, Lewis Kaplan of the federal district court for the southern district of New York, previously sought to block enforcement of the judgment anywhere in the world, but his injunction was reversed on appeal by the Second Circuit.  Last week the environmental consulting firm Stratus, which had provided consulting services to the plaintiffs, settled a lawsuit brought against it by Chevron by agreeing to disavow its assessment of oil contamination that had been submitted to the Ecuadoran judge.  Stratus reportedly was facing bankruptcy due to the cost of Chevron’s litigation against it.   The Ecuadoran plaintiffs allege that the Stratus settlement represents another example of Chevron seeking to intimidate its critics.  For example, on April 3 a federal magistrate in San Francisco quashed subpeonas Chevron had issued to the environmental group Amazon Watch on First Amendment grounds.  It is unclear what effect the Stratus settlement will have on the case because the judgment issued by Ecuadoran Judge Nicolas Zambrano was based on evidence other than that provided by Stratus.  In a bizarre twist, Chevron has filed an affidavit from Judge Alberto Guerra, who heard the case in 2003 and 2004, claiming that Judge Zambrano accepted a $500,000 bribe from the plaintiffs.  Judge Zambrano denies the allegation but claims that Guerra previously informed him that Chevron would pay $1 million if he recanted his judgment.  Clifford Krauss, Consultant Recants in Chevron Pollution Case in Ecuador, N.Y. Times, April 13, 2013, at B6.  Plaintiffs allege that Chevron has paid Guerra several hundred thousand dollars. Guerra admits that he was paid $38,000 by Chevron for his affidavit and $12,000 a month to support his family who have relocated to the U.S.

After a three-month trial, a state court jury in New Hampshire found on April 9 that ExxonMobil had been negligent in supplying gasoline that contained MTBE, a possible human carcinogen, that widely contaminated drinking water in the state. The jury ordered ExxonMobil to pay the state of New Hampshire $236 million, the company’s 28.94% in-state market share applied to total damages of $816 million. The state sued 26 oil companies over MTBE contamination in 2003 and all the defendants except for ExxonMobil settled the cases.  Testimony at trial showed that ExxonMobil’s own experts had warned it against using MTBE as an oxygenate for gasoline because it makes it easier for gasoline to travel in groundwater and is resistant to biodegradation. More than 40,000 drinking water wells in New Hampshire are contaminated with MTBE with 5,590 of these at levels exceeding the state’s standard for safe drinking water.

On Wednesday April 10, Mario Cordero, the newly-appointed chairman of the Federal Maritime Commission (FMC), spoke to my Global Environmental Law seminar about efforts to reduce the environmental impact of maritime shipping.  Chairman Cordero gave an inspirational talk that started with a description of his own background as a child of Mexican immigrants who did not have the benefit of the education he was able to receive in the U.S.  After graduating from the University of Santa Clara Law School he practiced law in California and was appointed to the Board of Harbor Commissioners for the Port of Long Beach.  In that position he championed a Green Port Policy to reduce pollution from vessels and the trucks that load and unload their cargoes.  Cordero became the first Latino member of the FMC when appointed by President Obama in 2010 and confirmed by the Senate in 2011.  He has continued to champion the greening of shipping as a member of the FMC and on April 2 he was designated by the President to be the FMC’s new chairman.

On April 10 I made a presentation on “The Role of Civil Society in Environmental Governance in the U.S. and China” at an environmental workshop at the University of Maryland Department of Government and Politics in College Park.  My presentation reviewed how U.S. environmental laws have emphasized public participation in the process of developing, implementing and enforcing the environmental laws, while civil society has played a much more limited, but growing, role in this process in China.  I argued that one of the reasons why China has had more difficulty enforcing its environmental laws is precisely because they are not the product of hard-fought compromises between business and environmental interests.  China’s highly decentralized enforcement structure and its lack of an independent judiciary are other contributing factors to the country’s enforcement problems.  I will be jointly presenting a more detailed version of this talk with Professor Zhao Huiyu of Shanghai Jiaotong University School of Law, who is co-authoring a paper on the subject with me, at a conference in Nanjing, China on May 6-7. 

As announced in last week’s blog posting, blog entries from students in my Global Environmental Law seminar are being posted daily in the “Students” section of my parallel blog at: www.globalenvironmentallaw.com.  A total of 21 such entries now have been posted.  They cover such diverse topics as opposition to building a new coal-fired power plant in Kosovo, bee colony collapse disorder, pollution from cruise ships, land tenure and the Amazon environment, the politics of Australia’s carbon tax, and comparative environmental standing.  More student blog entries will be posted during the next week.

Student Bloggers, Air Pollution Deaths in Asia, Transparency Gains in China & Public Health Conference (by Bob Percival)

Beginning today and for the rest of the month students in my Global Environmental Law Seminar will be guest blogging in a special section of my parallel website at: www.globalenvironmentallaw.com.  The first two entries are by Maryland 3L Brandon Roby, who writes about Marriott International’s efforts to preserve rainforests, and 1L Christopher Chaulk, who writes about resistance in Kosovo to construction of a new coal-fired power plant.  Brandon was one of the students who participated in last month’s field trip to Israel.  Chris is an avid trail runner and rower, who served in the Peace Corps in Albania before coming to law school.  To see their blog entries, go to www.globalenvironmentallaw.com and click on the “Students” link at the top of the page.

The Global Burden of Disease Study, published last December in the Lancet (http://www.thelancet.com/themed/global-burden-of-disease), estimated that air pollution is the seventh leading cause of death worldwide, contributing to 3.2 million premature deaths annually.  The authors of the study have now broken down their data by country, which they presented at a conference in Beijing a week ago.  Not surprisingly, most of the global deaths from air pollution occurred in Asia.  The researchers estimated that air pollution is the fourth leading cause of death in China (trailing dietary factors, high blood pressure and smoking), causing 1.2 million premature deaths there in 2010.  In India air pollution was estimated to cause 620,000 premature deaths annually. Edward Wong, Early Deaths Linked to China’s Air Pollution Totaled 1.2 Million in 2010, Data Shows, N.Y. Times, April 2, 2013, at A9.

Ma Jun’s Institute of Public and Environmental Affairs in Beijing has released its fourth annual Pollution Information and Transparency Index (PITI) report, developed in cooperation with the Natural Resources Defense Council (NRDC).  The PITI report ranks 113 cities in China on how well they ave performed in making environmental information available to the public under China’s Open Information Law.  Data from 2012 showed improvement in the average performance of officials in these cities, particularly in top performing cities.  However, the report found that some cities regressed and others still provided almost no environmental information with the principal problem areas being disclosure of environmental impact assessments, environmental violations, and emissions data.  The report calls for public disclosure on online monitoring data from key polluters, comprehensive disclosure of government supervisory and enforcement data, and periodic publication of emissions data for pollutants covered by environmental impact assessments. As environmental conditions have continued to deteriorate in China, the public is becoming increasingly militant in demanding greater transparency.  Barbara Finamore, NRDC’s Asia Director, expresses optimism that China may move toward regular publication of some form of Pollution Release and Transfer Register, as more than 50 other countries have done (see, e.g., the U.S. Toxics Release Inventory). Barbara Finamore, A Step Forward for Environmental Transparency in China, http://switchboard.nrdc.org/blogs/bfinamore/a_step_forward_for_environment.html

On April 4 I participated in a networking panel roundtable on Environmental Health and Environmental Justice as part of the University of Maryland’s efforts to foster greater multi-disciplinary collaboration on public health issues.  The roundtable was part of a day-long event, “Public Health Research @ Maryland,” which brought faculty from throughout the University of Maryland System to the College Park Campus to discuss work they are doing and ways in which they can improve collaboration.  I met some terrific people who are doing cutting edge work studying the sources of Chesapeake Bay pollution and the impact of exposure to environmental toxins on humans.

On April 1 I attended Washington Nationals Opening Day for the ninth consecutive year.  On April 5 my interests in sports and constitutional law led me to serve as the moderator for the opening panel of a conference on "Social Media and the Law: An Exploratory Look into the Legal Effects of Online Interconnectedness." The conference was sponsored by Maryland’s Journal of Business and Technology Law.  The panel that I moderated focused on constitutional issues raised by efforts to control use of social media by student athletes. It featured Phil Closius, former dean of the University of Baltimore and the University of Toledo, Frank LoMonte, executive director of the Student Press Law Center, intellectual property and sports law practitioner Bradley Shear, and Matt Taylor, the associate director of media relations for the University of Maryland Athletic Department.  The panelists offered some vivid examples of controversies caused by the use of social media by athletes and they explored tensions between student privacy and free speech rights and universities’s responsibility to police student behavior.