10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, August 25, 2013

Fukushima Leak, Carbon Prices in China & California, 3rd Circuit Holds CAA Does Not Preempt State Tort Litigation (by Bob Percival)

Tokyo Electric Power (TEPCO) shocked the world last week with the announcement that 300 tons of highly radioactive water had leaked from a storage tank at the site of the Fukushima Daiichi nuclear accident.  The fact that Tokyo Electric Company is still struggling to control releases from the plant nearly two and a half years after the March 2011 disaster has caused immense worry around the world.  Chinese authorities expressed shock at the revelations.  Independent nuclear experts voiced concern that the situation may be far worse than Japanese authorities are letting on. There are now approximately 1,000 storage tanks with contaminated water and it is feared that this latest leak is only the tip of the iceberg for more leaks to come.

The Office of U.S. Trade Representative (USTR) has quietly reversed a policy that previously tolerated measures by developing countries to limit imports of U.S. tobacco products in order to protect public health.  Public health advocates are concerned that because U.S. tobacco products are particularly prized in the developing world efforts to remove trade barriers applied to them can increase tobacco use there. In the latest round of negotiations over the Trans-Pacific Partnership trade agreement with 11 other nations, USTR has caved in to pressure from the U.S. tobacco industry to eliminate a “safe harbor” provision from the multinational trade agreement that would have allowed other countries to limit U.S. tobacco imports.  In a hard-hitting oped in the New York Times, New York City Mayor Michael Bloomberg attacked USTR’s decision. “Why Is Obama Caving on Tobacco?” New York Times, August 22, 2013.

The prices of carbon permits in China rose last week to a level higher than that in the EU emissions trading system.  Prices on the Shenzhen Emissions Exchange rose to 43 RMB ($7) per metric ton (mt).  At the same time allowances in the EU traded for 4.36 Euros ($5.85) This was a substantial increase from the range of 28 to 32 RMB that the permits last sold for on June 18, the first day of trading.  Mike Anderson, Carbon Prices Rise on China’s First Market to Exceed EU Price, Bloomberg News, August 21, 2013 (http://www.bloomberg.com/news/2013-08-21/carbon-permits-rise-on-china-s-first-market-to-exceed-eu-price.html).  The Shenzhen exchange is the first of seven pilot carbon trading exchanges to be launched in China.

On August 21 the California Air Resources Board released the results of its latest auction of greenhouse gas emissions allowances.  The clearing price of $12.22/mt for 2013 was lower than expected.  In May the allowances had sold for $14/mt.  Allowances for emissions in 2016 sold for $11.10/mt.

On August 20 the U.S. Court of Appeals for the Third Circuit held that a powerplant’s compliance with the Clean Air Act does not insulate it from liability for nuisance, negligence and trespass under Pennsylvania common law.  The decision in Bell v. Cheswick Generating Station reversed a lower court decision that had dismissed a class action lawsuit by 1,500 people living within a mile of a coal-fired powerplant.  The plaintiffs initially filed suit in Pennsylvania state court, alleging that emissions from the plant had caused ash and other contaminants to land on their property.  The company that owned the plant, GenOn Power Midwest, L.P., had removed the case to federal court and filed a motion to dismiss, arguing that the Clean Air Act preempted the lawsuit because it imposed extensive regulations on the plant’s operations.  In support of its decision the Third Circuit cited the Clean Air Act’s “savings clauses” in both the citizen suit provision, 42 U.S.C. §7604(e), and 42 U.S.C, § 7416.  While noting that the plant’s federal permit mandates that it prevent emissions from harming others, the court also noted that the permit itself has a savings clause providing that it shall not be construed as impairing state common law remedies.  

The court concluded that its decision was mandated by the Supreme Court’s decision in International Paper Co. v. Ouellette (1987) which cited similar savings clause provisions in holding that the Clean Water Act did not preempt state tort litigation based on the law of the source state. Rejecting the company’s arguments that this could cause conflicting state regulatory standards, the Third Circuit concluded that, like the Clean Water Act, the Clean Air Act serves “as a regulatory floor, not a ceiling, . . . that states are free to impose higher standards on their own sources of pollution, and that state tort law is a permissible way of doing so.”

On Wednesday August 21 I joined Professor Jane Barrett for our annual outing to Oriole Park at Camden Yards with our research assistants and fellows from the Environmental Law Clinic.  The Orioles defeated Tampa Bay by a score of 4-2 in a game that was viewed as important for the Orioles’ playoff hopes.

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