IUCN Academy Colloquium, Obama Climate Plan, Supreme Court Decides Takings Case & Agrees to Review Interstate Air Rule (by Bob Percival)

I am currently in New Zealand where I participated in the 11th Colloquium of the IUCN Academy of Environmental Law from June 24-28.  With me at the Colloquium were five of the Maryland law students from my Global Environmental Law seminar who presented papers at the Colloquium, Global Environmental Justice Fellow Gabby Queenan from Macalester College, and Bill Piermattei, managing director of Maryland’s Environmental Law Program.  Monday June 24 featured an all day workshop on the teaching of environmental law.  I gave a presentation on how a massive open online course operates and a demonstration of the SmartBook technology that enables me to include customized, multimedia materials in the electronic version of my casebook.  Tuesday June 25 featured an all day research workshop.  Plenary sessions were held on Wednesday and Thursday morning and a forum featuring some of the world’s top environmental judges was held on Friday morning.  Combined with breakout sessions on Wednesday, Thursday, and Friday, more than 160 presentations were made on a fascinating array of environmental topics.  The full program is available online at: http://iucnacademy2013.org.nz 

The Academy of Environmental Law now includes 168 institutional members from 53 countries.  More than 200 people attended the Colloquium from at least 30 countries.  Despite the upbeat atmosphere from seeing so many old friends at the Colloquium, speaker after speaker shared depressing news concerning the state of the world’s environment and efforts to roll back environmental protection in several countries.  Considerable discussion focused on why decades of effort to strengthen environmental law has not yielded more positive environmental results. This year’s distinguished scholar lecture was presented by Mas Achmad Santosa, Deputy Minister and Deputy Head of the President’s Delivery Unit for Development Monitoring & Oversight of the Republic of Indonesia.  He gave a remarkably candid presentation concerning how Indonesia is trying to locate and suppress the sources of massive fires in Sumatran palm oil plantations that have blanketed Singapore and Malaysia with record air pollution.

Most of the participants in the Colloquium welcomed President Obama’s announcement on Tuesday June 25 of his Climate Action Plan (http://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf) as a useful step for responding to this enormous global challenge.  In his plan President Obama recommitted his administration to the goal of reducing U.S. greenhouse gas (GHG) emissions by 17 percent below 2005 levels by the year 2020.  In a memorandum to EPA issued the same day, available online at: http://www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards, the President directed EPA to propose GHG emissions standards for existing power plants by no later than June 1, 2014, and to adopt them in final form by June 1, 2015.  Among the many elements of the President’s plan are measures to speed permitting of renewable energy projects, to increase energy efficiency standards for appliances and federal buildings, and to develop an interagency strategy to reduce methane emissions.  The President also pledges that the U.S. will play a more vigorous global leadership role on climate change issues. 

While I was at the Colloquium, the U.S. Supreme Court finished its October 2012 Term.  On Monday June 24 the Court announced that it will hear challenges to the D.C. Circuit’s decision striking down EPA’s interstate air pollution rule (see August 26, 2012 blog post).  The Supreme Court’s decision to review this case is a most welcome development because the D.C. Circuit’s decision (EPA v. EME Homer City Generation, 696 F.3d 7) featured extraordinary judicial activism to ensure that no state had to do too much to control interstate air pollution.  The case will be argued and decided during the Court’s next term that starts in October 2013.  

On June 25 the Court decided an important regulatory takings case.  In Koontz v. St. Johns River Water Management District the Court extended its Nollan/Dolan regulatory exactions doctrine to decisions to deny a permit to develop wetlands and to regulatory exactions that involve a payment of money rather than a dedication of real property.  The decision was 5-4 with the Court’s four liberals dissenting.  The dissenters agreed that permit denials could be subject to Nollan/Dolan review, but disagreed that exactions involving the payment of money should be subjected to such review.  Writing for the majority, Justice Alito emphasized that the Court’s decision did not call into question the constitutionality of property taxes. He downplayed the impact of the decision by noting that many states, such as California, already apply the Nollan/Dolan “rough proportionality” requirement to impact fees exacted when developers seek variances. 

Koontz was decided just as I was making the final corrections to the second pass page proofs for the new 7th edition of my casebook Environmental Regulation: Law, Science and Policy.  My publisher allowed me to include a new paragraph discussing the decision in the book, which will be in bookstores next month in time for fall semester 2013 classes.

China Cap-and-Trade Pilot, Australian Campaign, Sumatra Fires Pollute Singapore, Lacey Act Restitution, EU & Canada Transparency Initiatives, IUCN Colloquium (by Bob Percival)

On June 18 China launched its first cap-and-trade pilot program for carbon emissions in the city of Shenzen.  In the first trade China’s largest oil company PetroChina purchased 10,000 carbon allowances from Shenzen Energy Group, an electric utility, at a price of only $4.90 per metric ton. The cap-and-trade program will be expanded to seven locations in China by the end of 2014, including the cities of Beijing, Shanghai, Tianjin, and Chongqing and the provinces of Guangdong and Hubei, before being launched nationwide in 2015.  Shanghai is expected to launch its program next month.

Australia’s carbon tax and emissions trading scheme have become major issues in the current electoral campaign there.  Opposition leader Tony Abbott acquired his leadership position by reversing his previous support for emissions trading, which he argued would hurt Australia industries who compete with China.  Now that China is adopting cap-and-trade, Abbot argues that Australia’s program should be abolished in favor of unspecified “direct action” to control emissions.  Abbott’s opposition coalition notes that China’s carbon price is only about $5 per ton compared to Australia’s $23/ton carbon tax.  Supporters of Australia’s program note that 94.5% of carbon emissions permits are being distributed free of charge to emissions-intensive, trade-exposed industries, making the effective price of the carbon tax much less than China’s.  Despite the opposition’s attack on the carbon tax, there remains bipartisan support for measures to reduce Australia’s carbon emissions by 5% below 2000 levels by 2020. Craig Emerson, Not Pretty Under Abbott’s Fig Leaf, The Australian, June 22-23, 2013, at 20.

Forest fires raging in Sumatra have caused record levels of air pollution in SIngapore.  On the night of June 19 Singapore’s air Pollution Standards Index registered 321, an all-time record.  The following day the index registered another new record of 371.  Anything about 200 is considered hazardous to health.  Andrew Tan, the chief executive of Singapore’s National Environmental Agency, traveled to Jakarta to demand “definitive” action by the Indonesian government to control the pollution.  Singapore authorities have urged residents to avoid outdoor activities.  The Indonesian forestry ministry reportedly is using helicopters to seed the clouds in hope of producing rain to combat the fires. “Indonesia Urged to Clear the Air with Neighbours,” Sydney Morning Herald, June 21, 2013, at 17.  

On June 14 a federal district judge in New York ordered three defendants who illegally harvested rock lobsters in South Africa and imported them into the U.S. to pay $29.5 million in restitution to the government of South Africa.  The restitution ordered is the largest ever under the Lacey Act, a federal law that prohibits the importation of fish, wildlife or plants taken in violation of the laws of another country.  The three reportedly bribed South African fisheries inspectors and submitted false export documents.  Ben DiPietro, Record Restitution Order for Lacey Act Violations, Wall Street Journal, June 17, 2013.

Last week Publish What You Pay, a coalition of civil society organizations in Nigeria, urged the Nigerian government to require disclosure of payments made by extractive industries to government officials.  Bassey Udo, Nigeria: Emulate European Nations, Canada on Extractive Industries Transparency, Group Tells Nigeria, Premium Times, June 17, 2013.  On June 12 the European Parliament voted to require “EU-listed and large privately owned oil, gas, mining and logging companies to publish – country by country and project by project – all payments over €100,000 to governments wherever they operate. This follows agreement between the European Parliament, Member States and Commission after months of negotiations, and brings the EU finally into line with similar extractive industry transparency rules that take effect this year in the U.S. under the 2010 Dodd-Frank Act.” The government of Canada also announced that it will adopt similar transparency rules for its exrtractive industries.  Publish What You Pay Applauds Historic EU Parliament Transparency Vote as Canada Announces Similar Plans, June 12, 2013.

On Tuesday night I flew from San Francisco to Sydney, Australia en route to New Zealand for the annual Colloquium of the IUCN Academy of Environmental Law. I arrived in Sydney early on Thursday morning.  This year the Academy Colloquium, which Maryland hosted last summer, is being held at the University of Waikato in Hamilton, New Zealand, approximately 75 miles south of Auckland. It will run from June 24-28.  Five law students from Maryland will be presenting papers at the Colloquium along with myself and Program Managing Director Bill Piermattei.

Chinese Air Pollution Regulations, Ghana Crackdown on Wildcat Mining, Myanmar, Ethiopian Dam (by Bob Percival)

On June 14 China’s State Council adopted new air pollution control regulations.  One of the surprising features of the 10-part regulations is a requirement that large polluters disclose to the public information about their emissions. The regulations mandate that large sources reduce their emissions per unit of production by 30% by the year 2017. The regulations require the use of significantly cleaner fuels in motor vehicles, a requirement already in place in Beijing and Shanghai.  The regulations strengthen penalies for failure to comply with environmental regulations.  They also mandate that municipal governments assess the risks of protests derailing their development plans.  Keith Bradsher, N.Y. TImes, June 16, 2013, at A11.

The government of Ghana has conducted a harsh crackdown during the last two weeks on heavily polluting wildcat gold mines operated primarily by prospectors from China.  At least 169 Chinese have been arrested for operating illegal gold mines and many others are in hiding. Many of the miners were from Guangxi, China and the Chinese government reportedly has agreed to post bail, pay fines and facilitate their return to China.  Adam Nossiter & Yiting Sun, Chasing a Golden Dream, Chinese Miners Are on the Run in Ghana, N.Y. Times, June 11, 2013, at A4.

As Myanmar opens up to the outside world, environmental activists there are becoming more influential.  Ko Lay Lwin, a former airline accountant, has become a leading environmental opponent of a proposed multi-billion dollar deepwater port and coal-fired power plant project at Dawei.  The project, to be built by Italian-Thai Development PCL, has been stalled in part due to environmental opposition.  As Thai environmentalists have gained increasing clout, more Thai companies are exploring development projects in Myanmar.  Thai environmentalists increasingly are assisting their counterparts in Myanmar, who felt empowered after the Myanmar government stopped China’s giant Myitsone dam project on the Irrawaddy River in late 2011.  Myanmar reportedly is considering joining the Extractive Industries Transparency Initiative. James Hookway, Asia’s Green Activists Spread Their Roots, Wall St. J., June 12, 2013, at A1.

On June 10 Egyptian President Mohammed Morsi harshly criticized the government of Ethiopia for its plans to build Africa’s largest hydroelectric dam on the river Nile. Morsi, who fears that the dam will greatly reduce the flow of the Nile into Egypt, declared that “all options are open” in opposing the dam.  While he did not specifically threaten war, he stated that if “a single drop of the Nile is lost, our blood is the alternative.”  On June 11 sources indicated that negotiations were underway between Egypt and Ethiopia over the $4 billion project.

Construction of the first new nuclear powerplants in the U.S. in 30 years is now nearly one-third complete, but at least 14 months behind schedule.  The Vogtle 3 and 4 nuclear reactors being built in Waynesboro, Georgia by the Southern Company are now expected to cost approximately $14 billion, far more than the $8.87 billion spent on Vogtle 1 & 2, which were completed in 1987 and 1989. Cost overruns and delays have been caused in part by problems with suppliers.  With the price of natural gas low it remains to be seen whether the project will prove to be economical in the long run.  Vogtle 3 is now scheduled to open in 2017, but some are anticipating further delays in the schedule. Matthew L. Wald, Atomic Power’s Green Light or Red Flag, June 12, 2013, at B1.

Global CO2 Use Up 1.4% in 2012, Obama and Li Agree to Reduce HFC Use, U.S. Offshore Wind Leasing (by Bob Percival)

In a report issued on June 9 the International Energy Agency (IEA) estimated that global emissions of carbon dioxide (C02) from energy use increased by 1.4% to 31.2 gigatons in 2012.  The report predicts that if emissions of greenhouse gases continue to increase at such a rate, global temperatures could increase by as much as 5.3 degrees Celsius (9 degrees Fahrenheit) over pre-industrial levels, which “would be a disaster for all countries.”  The one bright spot was the U.S. where increased production of natural gas from shale formations accounted for half of the 3.8% drop in U.S. CO2 emissions from energy use. China, however, more than offset the U.S. decrease because its emissions increased by 3.8% in 2012, even though China’s CO2 emissions per unit of electricity generated dropped by 17%.  Japan’s CO2 emissions from energy use rose by 5.8% due to the shutdown of nuclear power generation in the wake of the Fukushima Daiichi disaster. The IEA report, Redrawing the Energy-Climate Map, is available online at: http://www.worldenergyoutlook.org/media/weowebsite/2013/energyclimatemap/RedrawingEnergyClimateMap.pdf.  It argues that global greenhouse gas emissions can be controlled to prevent the most catastrophic effects of climate change if four existing policies are expanded: improving energy efficiency, limiting construction and use of coal-fired power plants, minimizing methane emissions from oil and gas production, and phasing out fossil fuel subsidies.

At a summit meeting held in California, President Barack Obama and Chinese President Xi Jinping agreed on June 8 to phase down production and consumption of hydrofluorocarbons (HFCs), a potent greenhouse gas. The two leaders agreed that China and the U.S. have “strong joint interests in addressing the climate issue,” according to outgoing U.S. national security adviser Tom Donilon. HFCs are among the greenhouse gases that also threaten the earth’s protective ozone layer.  Thus, efforts to phase them out are being undertaken pursuant to the Montreal Protocol on Substances that Deplete the Ozone Layer.

Last week the U.S. Department of Interior announced that on July 31 it will sell leases for wind energy projects on more than 164,000 acres of federal waters off the coast of Rhode Island.  It is estimated that the lease area is sufficiently large to accommodate 3,400 megawatts of new wind energy projects.  John M. Broder, U.S. to Lease Federal Waters for Commercial Offshore Wind Energy, N.Y. Times, June 5, 2013, at B5.  Note also NPR on Omaha Beach.

On June 4 a letter from Todd Foley of the American Council for Renewable Energy was published in the Wall Street Journal.  The letter responded to the Journal’s May 24 editorial attacking Tesla Motors, which produces all-electric automobiles, primarily the Tesla S, which I drive. The letter, “Electric Cars and U.S. Innovation,” Wall St. J., June 4, 2013, notes that “Tesla not only repaid its commitment to the U.S. government nine years early, but it also paid an additional $26 million in interest for the taxpayer.” Thus, it concluded that the answer to the Journal’s question concerning when the "rest of America" will get its return on Tesla's profits by declaring that it did “on May 22, 2013.” The letter notes that Tesla was founded “entirely via private financing”and “from 2003 to 2009, the company developed cutting-edge electric vehicles without seeing even a dime of taxpayer money.”  It observes that “the bipartisan DOE loan guarantee program has a 97% success rate.” Thus, it concludes that “when a company—in this case, Tesla—demonstrates fiscal responsibility, American innovation and a sense of duty to the taxpayer,” it should “be a cause for celebration, not condemnation.”

Last Wednesday my wife Barbara sang the national anthem prior to the Washington Nationals/New York Mets game at Nationals Park as a member of the Congressional Chorus singing group (http://www.youtube.com/watch?v=3nAJIes0FQs).  They were not good luck for the Nats who lost to the Mets by 10-1.  On Friday I flew to Minneapolis for my Macalester College Reunion.  Macalester has a terrific environmental studies program and one of its students, Gabrielle Queenan is working with me this summer on a Global Environmental Justice Fellowship.  On Sunday June 9 I flew back to D.C. from Minneapolis in time to see the Nats defeat the Minnesota Twins in the second game of a doubleheader necessitated by a rainout on June 7.

Law & Society Meeting, Freedom Pipeline Canceled, Rogue GMO Wheat Discovered (by Bob Percival)

From Thursday through Sunday I was in Boston to attend the Annual Meeting of the Law and Society Association.  I chaired a panel on Natural Resources, Climate Change and Animal Rights on Friday.  On Saturday I spoke on a panel on “Commotion in China: Emerging Legal Issues for an Emerging Superpower.”  Also on the panel with me were Professors Margaret Woo (who spoke about China’s new civil procedure code), Cindy Estlund (who spoke about union elections in China), and Alex Wang (who spoke about transparency and access to information).  I spoke about the evolving role of civil society in influencing Chinese environmental policy.  Much of my talk focused on burgeoning public protests over environmental conditions and the siting of chemical plants.  One of the great aspects of Law and Society meetings is that professors from so many different disciplines share insights on important issues.  On the panel that I chaired there were speakers from a sociology department, a geography department, a political science department and an international relations department.  Climate change seemed to be the environmental issue that was getting the most attention from professors in these other disciplines.

I was really gratified to learn that my mentor, Stanford Law Professor Lawrence Friedman, was to receive the Law and Society Association’s annual Stanton Wheeler Mentorship Award.  While a law student at Stanford, I had the privilege of working with Lawrence as a research assistant.  We subsequently co-authored two articles and a book (The Roots of Justice: Crime and Punishment in Alameda County, California 1870-1910) that in 1982 won the Association’s J. Willard Hurst Award.  When I accepted the award at the Law and Society Annual Meeting in 1982, the membership of the Association then was almost entirely from the U.S.  Now its international membership has grown to the point where 35% of Law and Society members are from outside the U.S. mostly of these from Europe and Asia.

Writing the letter I wrote in support of Lawrence’s nomination for the Mentorship Award made me appreciate once again the immense influence he had on my career.  While speaking to a group of law clerks in D.C. a few months ago, one of them had asked me how my career would have been different if I had not been a law clerk for a Supreme Court Justice.  After thinking about it, I realized that not being a Supreme Court clerk probably would not have changed my career path significantly.  But were it not for Lawrence, who insisted that I should become a law professor, I probably would not have pursued what I consider the best job in the world.

On Friday Kinder Morgan Energy Partners LP announced that they had canceled plans for the proposed $2 billion Freedom pipeline to carry crude oil from Texas to California oil refineries.  California oil refineries refused to commit to buying oil transported by the proposed pipeline, preferring the greater flexibility of transporting oil by rail, which allows them to respond to pricing changes by diversifying their sources of supply. Valero Energy Corporation has invested $30 million in a project to build a rail terminal at its 170,000 barrel-a-day refinery in Benicia, California.  Other California refineries also are preparing to receive rail shipments of cheaper oil from the midwest.  Ben Lefebvre, Kinder Morgan Ends Pipeline Plan for West Coast, Wall St. J., June 1-2, 2013, at B3.

Last week a farmer in Oregon found an unapproved strain of genetically modified wheat growing like a weed in his field.  The discovery was made because the farmer sprayed the wheat with the herbicide Roundup and some of the wheat survived.  While authorities investigate, Japan has canceled a bid on 27,500 tons of U.S. wheat, South Korea also has suspended its bidding, and EU authorities called for increasing testing of U.S. imports.  In 2012 exports accounted for $8.1 billion of the $17.9 billion U.S. wheat crop. John Upton, Japan and Other Nations Say No to U.S. Wheat, Worried About GMOs, Grist, May 31, 2013.