China Air Regs, Guatemala Mine Decision, Dodd-Frank Conflict Minerals Regs Upheld, NY MTBE Award Upheld, GHG Permitting Regs Upheld, Tony Oposa's CPR (by Bob Percival)

On July 24 Zhao Hualin, director of the pollution prevention and control department of China’s Ministry of Environmental Protection (MEP), revealed that China’s State Council had approved a new plan to reduce levels of PM2.5 particulate pollution in North China.  The plan seeks to achieve a 25 reduction from 2012 levels by the year 2017 in areas of the country that have been particularly hard hit by pollution, including Beijing, Tianjin and Hebei province.  China’s central government plans to invest 1.7 trillion yuan ($277 billion) over the next two years to support the plan.  The plan targets reducing levels of PM2.5 in Beijing to 60 micrograms per cubic meter of air by 2017.  Wu Wencong, State Council Gives Approval to Tough Air Emissions Plan, China Daily, July 25, 2013.  The current U.S. standard for PM2.5 is 12 micrograms per cubic meter of air.  This illustrates how bad China’s air pollution has become.

The Center for International Environmental Law reports that on July 23 a lower court in Guatemala ruled that the Ministry of Energy and Mines (MEM) violated the law in granting a license to the Tahoe Resources silver mine.  The court ruled that MEM was required to hear each of the more than 200 people who had objected to issuance of the license before granting it.  The Guatemalan court upheld the appeal of Quelvin Jimenez who was represented by the Centre for Environmental and Social Legal Action in Guatemala.  Tahoe Resources responded to the ruling by arguing that it did not make its license invalid and vowing to appeal the decision to the country’s Constitutional Court.

On July 23 federal district judge Robert Wilkins rejected the business community’s attack on the “conflict minerals” regulations issued by the U.S. Securities and Exchange Commission (SEC) pursuant to the Dodd-Frank Act.  The regulations require certain companies to disclose the source of certain minerals they use that could be produced by rebel groups in the Congo.  The judge had little difficulty rejecting the argument that the SEC had to prove that the regulations would reduce conflict in the Congo, distinguishing the D.C. Circuit’s 2011 Business Roundtable decision that required the use of cost-benefit analysis as involving economic regulations, rather than ones promoting humanitarian goals.  The court also found that the SEC had properly rejected industry’s proposed de minimis exception to the regulations and that the disclosure requirement did not violate the companies’ free speech rights.

On July 26 the U.S. Court of Appeals for the Second Circuit upheld an award of $104.7 million in damages to New York City for ExxonMobil's contamination of water resources with methyl tertiary butyl ether (MTBE).  The court rejected Exxon’s argument that the award was preempted by the Clean Air Act that required the use of MTBE in gasoline, finding that the verdict was not premised entirely on the use of MTBE, but also the lack of care in how it was used.  The court upheld Exxon’s liability even though New York is not yet using the waters affected by MTBE and even though the levels of contamination are low.

On July 26 the U.S. Court of Appeals for the D.C. Circuit rejected challenges by Texas, Wyoming, and an industry group to EPA rules requiring permits for new or modified large, stationary sources of greenhouse gas (GHG) emissions.  The decision was 2-1 with Judges Rogers and Tatel in the majority and Judge Kavanagh dissenting. Despite prior rulings upholding EPA’s authority to regulate GHG emissions, Texas had defied EPA and refused to amend its Clean Air Act state implementation plan (SIP) to require such permits.  The court concluded that §165(a) and §167 of the Clean Air Act make the permitting requirement self-executing and prohibit the construction of a major emitting facility without best available emissions control technology. Once EPA regulated GHG emissions from mobile sources, GHGs became a pollutant subject to regulation under the Act, triggering the permit requirement and enabling EPA to issue permits even if a state failed to amend its SIP.  The court held that the states and the industry group lacked standing to challenge EPA’s actions because EPA’s regulatory actions actually helped, rather than hurt, them.  “The challenged rules operated to fill a permitting gap in several States and thereby ensure that a permitting authority existed to issue necessary PSD permits. Vacating the challenged rules would mean neither those States nor EPA could issue greenhouse gas PSD permits, and construction of a major emitting facility could not proceed in those States.”  Thus, standing requirements, which have been used to keep environmentalists out of court at times, were used here to dismiss a challenge to environmental regulations.  This is similar to what occurred when the D.C. Circuit in June 2012 upheld EPA’s initial GHG regulations in the Coalition for Responsible Regulation decision.

On June 23 the D.C. Circuit upheld the primary (health-based) national ambient air quality standard (NAAQS) for ozone that had been issued by the administration of President George W. Bush.  Oddly, the court struck down the secondary (economic-based) NAAQS for ozone as insufficiently explained by EPA, even though it is set at the same level as the primary standard.  This will not have any real practical effect since the primary standard remains in effect and the Obama administration is required to update the ozone NAAQS shortly.

One of the joys of teaching in Vermont Law School’s Summer Program is the extraordinary group of scholars Vermont attracts during the summer.  Last week I had lunch with Distinguished International Environmental Law Scholar Tony Oposa, Jr., the Philippine environmental activist whose legal action resulted in the Philippine Supreme Court’s famous Minors Oposa decision recognizing the rights of future generations to be heard in environmental disputes.  Tony recently has filed a notice of intent to sue if the Philippine government does not set aside a portion of the nation’s roads to serve the 98% of the population without motor vehicles.  On Thursday he gave an inspiring talk at VLS describing his “CPR” (Conserve, Protect, and Restore) plan for the planet.

Chevron to Frack in Argentina, Nissan Delays Luxury Electric Car, Spain Cuts Solar Subsidies, Chine Nuclear Protests & Vermont Course (by Bob Percival)

Last week Argentina announced a joint venture between Chevron and the former Spanish oil company YPF that was expropriated last year by the Argentine government.  The joint venture will use hydraulic fracturing to extract oil and gas from the Vaca Muerte shale formation, one of the largest in the world.  The agreement was announced a month after the Supreme Court of Argentina reversed a lower court decision that had frozen the assets of Chevron’s Argentine subsidiary to help enforce an Ecuadoran judgment against Chevron for polluting the Amazon.  The Supreme Court ruled that Chevron Argentina is a separate company from the parent corporation and not responsible for the debts of its parent.

On Wednesday July 14 Nissan announced that it would “push back the timing” of the release of a luxury electric car to be called the Infiniti LE.  Nissan executives indicated that because electric vehicle technology is making rapid advances that were unforeseen two years ago when the car was announced, it would be better to wait to incorporate the new technology in the LE.  While Nissan officials declined to be more specific, analysts speculated that the new technology may involve a fast-charging combo plug or the use of liquid cooling for the car’s lithium ion battery pack.

On July 12 the government of Spain announced the third cutback since 2012 in its subsidies for solar power.  Launched in 2007, the subsidies enabled generators of solar power to obtain 12 times the market price of electricity generated by other means.  The result was an explosion of investment in solar energy, with Spain’s renewable energy output doubling in six years and the costs of the subsidies ballooning 40--fold from 2007 to 2012.  The latest cutback will reduce the subsidies by 2.7 billion Euros on top of 5.6 billion Euros in cuts made during the past two years.  The Cost del Sol, The Economist, July 20, 2013, at 57.

On July 12 and 14th people took to the streets in Jiangmen city in the southern Chinese province of Guangdong to protest plans to build a $6 billion uranium processing facitility to service China’s growing nuclear power industry.  Following the first protests, the local government announced that the facility would be abandoned, but the public again took to the streets to protest a rumor that the plant was only being postponed and not abandoned.  In response to the second protest on July 14 the Jiangmen city government confirmed that the plant would not be built.  This reputedly is the first major public protest over the Chinese nuclear power industry.  At the time of the Fukushima Daiichi disaster in March 2011, China had 13 nuclear power plants in operations, a number it planned to increased to 200 by the year 2020.  After a temporary moratorium was imposed in response to the Fukushima accident, in October 2012 China allowed nuclear construction to continue.  But China has extended the moratorium to at least 2015 for the 30 nuclear power plants that had been planned for inland locations.  There are now 17 nuclear power plants operating in China, all along the coast.  Limiting the Fallout, The Economist, July 20, 2013, at 41.

Today I arrived in Vermont where I will be teaching a two-week summer course in Comparative U.S./Chinese Environmental Law at Vermont Law School.  After the classroom component of the course concludes on August 1, I will be leading a field trip to China with five of the students.  Chinese NGOs expressed concern last week that a new draft of the proposed legislation allowing NGOs to bring public interest environmental litigation would only allow one group - the All China Environment Federation -- to bring such lawsuits because the draft would only allow government-sponsored NGOs (known as “GONGOs”) to bring such cases.

I now have posted on my parallel website at www.globalenvironmentallaw.com my photos of the 11th Colloquium of the IUCN Academy of Environmental Law that was held last month in New Zealand.  I also have posted in a separate album the photos of my two weeks exploring New Zealand with my wife after the Colloquium.  To view the photos visit www.globalenvironmentallaw.com and click on the “Photo Album” link at the top of the page.

Return from New Zealand, Environmental Issues Down Under (by Bob Percival)

My wife Barbara and I arrived home from our New Zealand vacation at 3:20AM this morning.  I flew on United from Auckland via Sydney, while Barbara had a more circuitous route on Singapore Air through Singapore and Seoul as part of a ticket purchased with airline miles.  We met up at the San Francisco Airport and I agreed to let her have my first class seat on the flight from San Francisco to Dulles, which was delayed for nearly two hours.  Barbara ended up sitting on the plane next to Nancy Pelosi, former Speaker and now Minority Leader of the U.S. House of Representatives.  Barbara’s late grandfather had briefly been a fellow member of the Maryland delegation in Congress with Pelosi’s father Thomas D’Alesandro, Jr. who later became mayor of Baltimore.

We had the best vacation ever exploring New Zealand for two weeks after the end of the IUCN Academy of Environmental Law Colloquium at Waikato University.  We started in the north on Waiheke Island near Auckland and drove south as far as Christchurch on the South Island.  We went winetasting at vineyards in six different wine regions of New Zealand and had some really memorable meals.  As mentioned last week, we hiked part of the Queen Charlotte Track with ferries depositing us on one part and picking us up on another.  Last Tuesday we spent an afternoon whale watching off the east coast of the South Island near Kaikura.  We saw three sperm whales and visited a sea lion colony.  On Thursday we took one of the most spectacular train rides in the world - the TraNZalpine railway from Christchurch to Greymouth.  It crosses New Zealand’s beautiful Southern Alps from the east coast to the west coast of the South Island in the morning and then returns in the afternoon.  

Before flying back to Auckland on Friday we toured the International Antarctic Center across the street from the offices of the U.S. Antarctica Program adjoining the Christchurch Airport.  This is the supply center for the U.S. bases in Antarctica.  The museum is fascinating with some terrific films of Antarctica and visitors can take a ride on a Hagglund vehicle widely used for exploration on the ice.  

Traveling in New Zealand and spending a day in Sydney on my return, I was  struck by the variety of environmental issues that are being debated by the public.  The town of Dunedin on the South Island is struggling to enforce ordinances designed to reduce smoke pollution by requiring homeowners to replace wood stoves with cleaner burning units.  Despite offering subsidies to finance the switch there has been widespread noncompliance so government officials are threatening to levy heavy fines.  In Australia the big environmental news was new Prime Minister Kevin Rudd’s announcement that the government would scrap the politically controversial carbon tax and replace it with a cap-and-trade program to be phased in a year earlier than previously contemplated.   Rudd promptly was accused by the conservative opposition (oddly called the Liberal Party) of being a flip-flopper.  Yet most of the public seems to take climate change seriously in light of the record heat during the summer and the debate has centered on the best approach to reduce greenhouse gas emissions.  

Australian environmental groups split over a plan to protect forests in Tasmania with some groups arguing that the plan does not go far enough to preserve forests.  Hydraulic fracturing also is becoming a big issue in Australia.  Since the government in Australia generally owns the subsurface resources under private property, the political dynamics of the fracking issue may be altered in ways that could foster some interesting comparative studies.  A common theme running through many of the environmental debates down under is that individuals offer more resistance to environmental measures that visibly cost them, such as a carbon tax or the need to scrap old wood stoves, and they are less enthusiastic about fracking when most of the benefits will go to the government while most of the burdens are put on their surface landholdings.

This was my first trip to New Zealand, the 82nd country I have visited.  I would love to return during New Zealand’s summer and visit the southern part of the South Island, including Milford Sound, when the weather is better. I took some great photos on the trip that I will be posting in the photo section of my parallel website at http://www.globalenvironmentallaw.com in the next few days.

ICJ Hears Australian Case Against Japan Whaling, Tonga's Lifuka Debates Sea Level Rise, New Zealand's Maui's Dolphin (by Bob Percival)

I am in New Zealand for another week, now traveling on the South Island.  There has been considerable publicity here concerning the hearings at the International Court of Justice (ICJ) in the Hague on Australia’s case (Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)) against Japan for whaling in the Antarctic in alleged violation of the International Whaling Commission’s moratorium on commercial whaling.  Australia launched the proceedings in May 2010 and New Zealand intervened in the case in February 2013 to support Australia’s claim that Japan’s whaling is illegal.  Japan claims that its whaling is legal under the exception for scientific research.  It also argues that Australia is trying to impose its own cultural values on Japan and that Australia and New Zealand have no basis for complaining about what Japan does outside of their territorial waters. Japan has taken more than 10,000 whales in the southern hemipshere under the guise of scientific research.  It currently allows 935 minke whales, 50 fin whales and 50 humpbacks to be taken, though only 18 fin whales and no humpbacks have been taken yet.  

New Zealand media are reporting that Pacific leaders will be meeting tomorrow to discuss how to cope with rising sea levels and subsiding land in the Tongan island of Lifuka.  More than 7,000 people live on Lifuka, which has lost many homes to rising sea levels and land sinking due to an earthquake fault.  Leaders are debating whether to build an expensive sea wall to try to prevent further flooding in the future or to relocate the residents.  Last week I was in Napier, New Zealand, where a February 1931 earthquake suddenly thrust land that had been under Hawke’s Bay two meters upward, creating dry land on which Napier’s airport was built.  I also toured the Parliament building in Wellington, that has been “seismically isolated” by being sliced from its foundation and placed on special load bearing ball bearings that allow the entire building to move back and forth in the event of an earthquake.  

While in Wellington I spent a morning hiking in Zealandia, a nature preserve in the hills above the city.  The preserve represents an ambitious effort to restore 225 hectares of land to its natural state as part of a 500-year plan.  Many rare species of birds have been attracted to the sanctuary.  Since the reserve is built directly over an earthquake fault, one wonders whether anyone can confidently predict what it will look like in 500 years.  Te Papa, the outstanding national museum of New Zealand located on Wellington’s waterfront, has several outstanding exhibitions on New Zealand’s fascinating ecological history and the severe harm invasive plant and animal species have caused to native flora and fauna.

Yesterday I traveled by ferry from Wellington on New Zealand’s North Island across the Cook Strait to Picton on New Zealand’s South Island.  After the ferry entered Queen Charlotte Sound we observed a group of dolphins welcoming us.  Today while taking a ferry from Picton to Ship Cove, the start of the Queen Charlotte Track, on which we hiked, we also observed dolphins in the Sound.  These were not the endangered Maui’s dolphin, of which it is estimated there are only 55 remaining who are more than one-year old.  They are located on the west coast of the North Island.  Last September New Zealand was the only nation to vote against a resolution at the IUCN’s World Conservation Congress in Korea calling for expanded protection of the Maui’s dolphin.  On July 6, New Zealand’s Dominion Post newspaper revealed that New Zealand’s lone vote in opposition to the resolution was dict'ated by New Zealand’s Ministry for Primary Industries over the opposition of the country’s Department of Conservation (DOC).  New Zealand’s DOC had urged that the government at least abstain rather than opposing the resolution, according to documents obtaining by the newspaper.  Matt Stewart, “Lack of Evidence” Behind NZ Vote Against Maui’s Aid, The Dominion Post, July 6, 2013, at A14.