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.

EPA Proposes GHG Limits on New Power Plants, Calif. Low Carbon Fuel Standard Upheld, Arctic Sea Ice Bounces Back (by Bob Percival)

On September 20 the U.S. Environmental Protection Agency proposed a new source performance standard (NSPS) under the Clean Air Act that would limit emissions of greenhouse gases from new power plants.  The proposal is a major part of the measures President Obama announced in his Climate Action Plan on June 25.  Under the proposed NSPS new, large natural gas-fired turbines could emit no more than 1,000 pounds of CO2 per megawatt hour and coal-fired turbines no more than 1,100 pounds.  This essentially would require any new coal-fired power plant to employ carbon capture and storage technologies that the utility industry argues have not yet been adequately demonstrated.  Perhaps the best sound bite from the industry opponents was when one claimed that it was as if EPA was requiring power plants to use the iPhone9 when only the iPhone5 is currently available.  The proposed regulations are now subject to public comment before EPA takes final action on them, likely sometime next year. EPA’s press release is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/da9640577ceacd9f85257beb006cb2b6!OpenDocument.

California won an important legal victory for its program to reduce state-wide greenhouse gas emissions.  On September 18 the U.S. Court of Appeals for the Ninth Circuit upheld California’s low-carbon fuel standard.  The 2-1 decision in Rocky Mountain Farmers Union v. Corey reversed a lower court that had held the standard invalid under the dormant commerce clause.  The Ninth Circuit majority held that the standard did not facially discriminate against interstate commerce by calculating the carbon intensity of transportation fuels in a manner that accounts for the distance they travel from the point of production to the market.  On October 10 I will be on a panel discussing this decision and others involving constitutional challenges to state renewable energy initiatives at the annual fall meeting of the ABA’s Section on Environment, Energy, and Resources in Baltimore.

On September 17 EPA released a 331-page report on “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” The report is a synthesis of all peer-reviewed science that exists on the connections between wetlands, streams, and downstream waters.  EPA is soliciting public comment on the report, which EPA’s Scientific Advisory Board (SAB) is using to support a proposed new rulere defining “waters of the United States” for purposes of federal jurisdiction under the Clean Water Act.  Since the Supreme Court’s decision in Rapanos v. U.S. in 2006 there has been massive confusion concerning the extent of federal jurisdiction.  The report is available online at: http://yosemite.epa.gov/sab/sabproduct.nsf/46963ceebabd621905256cae0053d5c6/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf.

Governments in developing countries in Africa, including Niger, Chad and Gabon, have started to renegotiate the terms of contracts they previously signed with Chinese oil companies.  The governments believe that the terms of the contracts are unfair because they do not adequately compensate the countries for their oil wealth and the environmental damage oil extraction may cause.  Adam Nossiter, China Finds Resistance to Oil Deals in Africa, N.Y. Times, Sept. 17, 2013.

In the runup to today’s election in Germany some German companies are seeking to put the brakes on the country’s transition away from nuclear power and toward renewable energy sources.  The companies argue that the government policy has sharply raised rates for electricity, making German companies less competitive in international markets. Andrea Thomas & Jan Hromadeo, Industry Fires Warning Shot on Energy, Wall St. J., Sept. 21-22, 2013, at A8.

Last week the Permanent Court for Arbitration in the Hague issued an interim judgment on Chevron’s claim that Ecuador is violating the U.S./Ecuador Bilateral Investment Treaty because its courts have held Chevron liable for oil pollution there.  Chevron filed the international arbitration proceeding in September 2009 while an action against it was pending in an Ecuadoran court that in February 2011 rendered what is now a $19 billion judgment against Chevron.  The three arbitrators ruled unanimously that a 1995 settlement agreement between Ecuador and Chevron addressing the oil pollution was intended also to bar any “diffuse” or “collective” claims filed to enforce the right to a clean environment in Article 19-2 of the Constitution of Ecuador.  A copy of the arbitrators’ interim judgment is available online at Chevron’s “Amazon Post” website at: http://www.theamazonpost.com/wp-content/uploads/chevron-ecuador-bit-tribunal.pdf. Chevron is asking the arbitrators to direct Ecuador to oppose enforcement of the judgment in any court and to take steps to nullify it in Ecuador.  The 48 private plaintiffs who secured the judgment are not parties to the arbitration.  

On Thursday the U.S. Court of Appeals for the Second Circuit will hear the next phase of the litigation brought by Chevron accusing the Ecuadoran plaintiffs and their lawyers of fraud.  The court will here oral argument on the Ecuadoran plaintiffs’ efforts to force the removal of Judge Lewis A. Kaplan, the federal district judge presiding over Chevron’s RICO suit against them.  Chevron has hired former Solicitor General Ted Olson and former Attorney General Michael Mukasey as part of its legal team opposing Judge Kaplan’s removal. Judge Kaplan previously issued an injunction purporting to bar the plaintiffs from seeking enforcement of the judgment anywhere in the world, but the Second Circuit dissolved the injunction, holding that it exceeded the judges authority.

Arctic sea ice has bounced back in 2013 from the record low levels it reached in 2012.  In 2012 only 24% of the Arctic Ocean was covered by sea ice at the end of the summer.  This year 36% of the Arctic was covered with ice at the end of the summer, a 50% increase. Scientists do not believe that this represents a deviation from the pattern of declining sea ice because “a new low in summer sea ice has been set every few years, followed by a few years of recovery, followed by yet another low that typically exceeds the previous one by a substantial margin.” Justin Gillis, Arctic Ice Makes Comeback From Record Low, but Long-Term Decline May Continue, N.Y. Times, Sept. 21, 2013, at A7.  Melting of sea ice does not affect global sea levels since the ice already is in the water, but it is viewed as an important indicator of what may happen to the Greenland icecap, which could have a huge impact on sea level rise if it melts because it is located over land.

Protestors from Greenpeace attempted last week to board a Russian offshore oil drilling platform in the Arctic’s Pechora Sea.  They and their vessel were seized by Russian authorities.  Steven Lee Myers, Russia Seizes Greenpeace Ship and Crew for Investigation, N.Y. Times, Sept. 21, 2013, at A7.

CHEVRON’S BRAZIL SETTLEMENT, CHESAPEAKE TMDL UPHELD, CHINA AIR POLLUTION PLAN & CALIFORNIA MOU WITH CHINA’S NDRC (BY BOB PERCIVAL)

On September 13 the Chevron Corporation reached a $42 million (95.2 million Brazilian reals) settlement for a drilling accident in November 2011 that caused an oil spill in the Frade field off the southeast coast of Brazil (see blog posts for Nov. 20, 2011 & Nov. 27, 2011 reporting on the initial spill). Chevron also paid fines of 42.9 million reals ($18.8 million) to IBAMA, Brazil’s environmental agency, and 25.6 million reals ($11.2 million) to SNP, Brazil’s oil regulator. The accident resulted in between 2,400 and 3,700 barrels of oil being released from the seabed. Brazilian authorities initially sought $20 billion in damages from Chevron.  They ultimately agreed to settle for far less after concluding that the spill caused far less damage than initially thought.  However, based on the size of the spill, the settlement is still more than two and a half times larger that the civil recovery that would be authorized under the U.S. Clean Water Act if Chevron had been “grossly negligent” ($4,300/barrel) for a spill in U.S. waters.  The settlement was reached just a week before the Brazilian government auctions off leases to develop another large offshore oil field. Jeff Fick, Chevron Agrees to Settle Oil-Spill Lawsuits in Brazil for $42 Million, Wall Street J., Sept. 13, 2013. Criminal charges that had been brought against 17 executives from Chevron and its contract driller Transocean were dismissed by a Brazilian judge last February.

The American Farm Bureau Federation suffered a huge defeat on September 13 when a federal district judge in Pennsylvania rejected its legal challenges to EPA’s total maximum daily loadings (TMDL) plan to protect the Chesapeake Bay from excessive nutrient loadings.  A TMDL is essentially a “pollution diet” that limits the amount of pollutants that various sources can contribute to a body of water that is not meeting its water quality standards. EPA finalized the TMDL for the Chesapeake Bay in December 2010.  Joined by other farming groups and pork and poultry producers, the Farm Bureau then filed suit, arguing that EPA had exceeded its authority by mandating specific allocations for future nutrient loadings into the Bay.  Oral argument was held on October 4, 2012 before federal district judge Sylvia Ramble in federal district court for the middle district of Pennsylvania.  The judge rejected the legal arguments made by the plaintiffs and ruled in EPA’s favor, upholding the TMDL.

On September 12 China’s State Council released its latest plan to control air pollution.  The plan calls for limits on the burning of coal and new strategies for removing highly-polluting vehicles from China’s motorways. The plan seeks to reduce concentrations of particulate matter by 25 percent in the Beijing area, 20 percent in the Yangtze Rive Delta, and 15 percent in the Pearl River Delta.  The goal is to keep average concentrations of fine particulates (PM 2.5) in Beijing to no more than 60 micrograms per cubic meter of air, five times the legal limit in the U.S. and two and a half times the recommended limit set by the World Health Organization.  The plan disappointed environmentalists in China who were hoping for something more aggressive.  

On the day the plan was announced levels of PM 2.5 in Beijing were at a very unhealthy 213 micrograms per cubic meter, more than 17 times the legal limit throughout the U.S. The State Council’s plan seeks to reduce coal use to 65% of energy consumption by 2017 from 67% in 2012. Motor vehicles registered before 2005 are to be removed from motorways by 2015 in highly polluted areas and throughout all China by 2017. Edward Wong, China’s Plan to Curb Air Pollution Sets Limits on Coal Use and Vehicles, N.Y. Times, Sept. 13, 2013, at A4. As foreign demand for coal decreases, U.S. coal companies are reducing their export plans. One energy consultant described this as the beginning “of a big structural shift, particularly in the Chinese energy sector.” Clifford Krauss, U.S. Coal Companies Scale Back Export Goals, N.Y. Times, Sept. 13, 2013, at B1.  

On September 13 the State of California signed a memorandum of understanding (MOU) with China’s National Development and Reform Commission (NDRC - not to be confused with NRDC, the U.S. environmental NGO). The MOU pledges that California will cooperate with the NDRC to help China reduce its emissions of greenhouse gases.  I have been quoted in an Associated Press article about the signing, which was picked up in many newspapers throughout the U.S. and some other countries, as emphasizing that NDRC is the most powerful government agency in China with respect to development and energy policy.  The MOU continues the trend of bilateral cooperation between the U.S. and China on climate change issues.  As the world’s two largest emitters of greenhouse gases, there is much that can be accomplished by the two countries working together.

Japan's Fukushima Plan, Fu River Pollution, HFC Phaseout, Iran Releases Indian Tanker, Foreclosing the Future (by Bob Percival)

On September 3 the Japanese government announced a new strategy to contain spreading leaks of radioactive contaminants at the crippled Fukushima Daiichi nuclear power plant.  The government initially will spend 21 billion yen ($212 million) to fund two projects that ultimately will cost twice that amount.  One project involves constructing an underground wall of ice to stop the spread of radioactive groundwater.  The second project involves constructing a processing plant to filter radioactivity from the water.  The Japanese government also is creating a special office to respond to the contamination that will bring together in one place the resources of various agencies who have been working on the problem.  Mari Iwata & Toko Sekiguchi, Tokyo Sets Plans for Radioactive Water Leak, Wall St. J., Sept. 3, 2013, at A10.  Citing potential radioactive contamination, South Korean authorities on September 6 banned imports of seafood from a long coastal strip of Japan in the vicinity of Fukushima. Chico Harlan, S. Korea Bans Import of Fish from Coast Near Japan;s Stricken Nuclear Plant, Washington Post, Sept. 7, 2013, at A7.  On September 7 the International Olympic Committee awarded the 2020 Olympics to Tokyo after the Japanese government promised “drastic action” to ensure that contamination from the nuclear accident is contained.

A mass fish kill in the Fu River in China’s Hubei Province has been traced to very high levels of ammonia pollution discharged by a chemical company.  The pollution came from the Hubei Shuanghuan Science and Technology Company, which makes ammonium chloride and sodium carbonate.  The company reportedly has a long history of environmental violations.  Thousands of dead fish appeared along a 19-mile stretch of the river and Chinese authorities reportedly have removed 110 tons of dead fish. Ammonia levels in the river reached as high as 196 milligrams per liter.  Neil Gough, Pollutants from Plant Killed Fish in China, New York Times, Sept. 4, 2013, at A9.

At the G-20 Summit on September 6, President Obama and Chinese President Xi Jinping reaffirmed that the two countries will work together to phase out the use of hydrofluorocarbons (HFCs), a potent greenhouse gas, under the Montreal Protocol on Substances that Deplete the Ozone Layer.  Ironically, the production of HFCs had increased as a substitute for CFCs and other ozone-depleting chemicals initially phased out under the Protocol.  But because HFCs are such potent greenhouse gases, they now also are targeted for a phaseout.  Durwood Zaelke, president of the Institute for Governance and Sustainable Development who spearheaded the effort to phase out HFCs, estimates that the phaseout could reduce the equivalent of 100 billion tons of carbon dioxide emissions by 2050.  The Montreal Protocol is now responsible for greater reductions in greenhouse gases than the Kyoto Protocol, which was supposed to be the main instrument for responding to climate change.  In the past Brazil and India have opposed the HFC phaseout. Juliet Eilperin, U.S., China Agree on Cutting Potent Greenhouse Gases, Washington Post, Sept. 7, 2013, at A3.

Following the G-20 Summit near St. Petersburg, President Obama met with nine Russian civic activists, including LGBT leaders and environmentalist Yevgenia Chirikova.  As discussed previously on this blog, Chirikova became prominent as a leader of protests to block the construction of a Moscow/St. Petersburg highway through the Khimki forest.  Prior to the meeting Obama issued a statement calling their activism “critically important to Russia’s development” and stating that he was “very proud of their work.” Will Englund, After G-20 Summit, Obama Meets with Russian Activists, Washington Post, Sept. 7, 2013, at A6.

Last week the government of Iran agreed to release the MT Desh Shanti, an Indian oil tanker that had been detained for allegedly polluting Iranian waters.  Iranian naval officials stopped the boat, owned by the Shipping Corporation of India Ltd., on August 13 when it was en route from Iraq to India. Indian authorities denied both that the boat was polluting and that it was in Iranian waters when it was stopped.  Iranian officials stated that the ship had released wastes and water mixed with crude oil near Iran’s Lavan Island in the Persian Gulf.  They claim that inspection of the vessel revealed a non-functioning oil and water separation device and other violations of environmental regulations. Biman Mukherji & Benoit Faucon, Iran Agrees to Release Detained Indian Tanker, Wall Street J., Sept. 5, 2013, at A11.

Island Press has just published Bruce Rich’s new book Foreclosing the Future: The World Bank and the Politics of Environmental Destruction.  Bruce is the former director of international programs for the Environmental Defense Fund.  A long-time critic of the World Bank for policies that he argues contribute to global environmental destruction, Bruce previously authored the book Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development, published by Beacon Press in 1994.  Bruce gave me an advance copy of his book, which I am reading now.  It offers a truly devastating critique of the Bank’s policies, including the depressing conclusion that Dr. Jim Yong Kim, who became president of the Bank 14 months ago, so far has failed to fulfill his pledges of reform, despite some progress toward greater transparency.  While the book was in press Kim announced a significant shakeup of senior staff at the Bank in hopes of refocusing it more on the mission of reducing global poverty.  I hope Bruce’s book will get wide circulation.

China Halts Refinery Projects, Perdue Denied Attorneys Fees, Fukushima Leak at Level 3, Tobacco & Trade (by Bob Percival)

On August 29 environmental authorities in China temporarily halted new refinery projects by the nation’s two largest oil companies, China National Petroleum Corporation (CNPC) and the Chine Petroleum & Chemical Corporation (Sinopec).  China’s Ministry of Environmental Protection (MEP) concluded that both companies failed to meet pollution reduction targets, CNPC for chemical oxygen demand from water pollutant discharges and Sinopec for air emissions of nitrogen oxide. MEP stated that it will temporarily suspend approvals of environmental impact assessments for new refinery projects and expansions of existing refineries owned by the two companies. In response to the announcement, Sinopec stated that it will spend $3.7 billion on 803 environmental projects during the next three years.  The companies have made considerable efforts to produce cleaner fuels, but they reportedly have not been as active at reducing pollution from their refineries. Wayne Ma, China Halts New Projects at Two Refineries, Wall St. J., Aug. 30, 2103, at B5.

Years of litigation seeking to hold Perdue Farms, Inc. liable for polluting the Chesapeake Bay with poultry manure most likely came to an end last Wednesday when a federal judge denied Perdue’s motion for attorneys’ fees.  Using the citizen suit provisions of the federal Clean Water Act, the Waterkeeper Alliance, Inc. had sued Perdue and Alan Hudosn, one of Perdue’s contract farmers, for allegedly allowing poultry manure from a confined animal feeding operation (CAFO) to be discharged into navigable waters without a permit.  After a trial last fall Judge William M. Nickerson found that, “while alarmingly high levels of fecal coliform, E. coli, nitrogen, and phosphorous had been discharged from Hudson’s farm,” the Waterkeeper Alliance had failed to prove by a preponderance of the evidence that the pollution came from chickens rather than cows on Hudson’s property.  Because the cows were not confined and thus not part of a CAFO no permit is required for discharges of their manure.  Perdue and Hudson then asked the court to require the Waterkeeper Alliance to pay them $3 million in attorneys fees.  Under the Clean Water Act fees are only awarded to prevailing defendants if the lawsuit was “frivolous, unreasonable, or without foundation.”  While Perdue launched a massive public relations campaign to convince people that the lawsuit was frivolous, the denial of the attorneys’ fees motion rejects this false narrative.  The University of Maryland Environmental Law Clinic represented the Waterkeeper Alliance in the litigation on the merits.

On August 28 five public interest groups sued the U.S. Environmental Protection Agency for withdrawing a proposed rule to require confined animal feeding operations (CAFOs) to report basic information concerning their size, location and permit status.  The plaintiffs (Environmental Integrity Project, Food and Water Watch, the Humane Society of the U.S., the Center for Food Safety, and Iowa Citizens for Community Improvement) allege that EPA acted in an arbitrary and capricious manner when on July 20, 2012 it withdrew the proposed rule.  The lawsuit, filed in federal district court in Washington, D.C., alleges that EPA failed to provide a reasoned explanation for the withdrawal because the information the rule sought is necessary for effective regulation of CAFOs and it is not available from other sources.  

On August 28 Japan’s Nuclear Regulation Authority announced that the continuing leaks of highly radioactive water from storage tanks at the Fukushima Daiichi nuclear powerplant have been raised from a Level 1 “anomaly” to a Level 3 “serious incident” under the scale set by the International Atomic Agency.  The announcement came two days after Japanese authorities announced that the national government will “step forward” to respond to the leaks, indicating a lack of confidence in Tokyo Electric’s ability to contain them. 

At a meeting held last week in Brunei, Malaysia proposed to “carve out” tobacco products from the Trans Pacific Partnership Agreement that is being negotiated between the U.S. and 11 Asian nations.  Although U.S. law prohibits the federal government from using trade agreements to promote the export of tobacco products, the Office of the U.S. Trade Representative (USTR) had agreed to support elimination of tariffs of tobacco imports and to allow U.S. tobacco companies to challenge foreign restrictions on tobacco marketing.  Tobacco companies have used previous trade agreements to challenge restrictions on the marketing of their products.  Malaysia’s proposal forced the issue to be deferred until a future meeting.

Last week the U.S. Court of Appeals for the Second Circuit set September 26 as the date it will hear oral argument on a petition for a writ of mandamus to remove Judge Lewis A. Kaplan from presiding over the trial of RICO litigation brought by Chevron against plaintiffs in the long-running Ecuador oil spill litigation.  The trial, which was set to start on October 15, may be delayed while the Second Circuit considers whether to remove Judge Kaplan for bias.  At a pretrial hearing Chevron’s lead lawyer indicated that the company may be willing to drop its damages claims against the plaintiffs in order to avoid a jury trial.  A Second Circuit panel previously had reversed an injunction issued by Judge Kaplan that purported to bar the plaintiffs’ lawyers from seeking to collect on their $18 billion judgment against Chevron in any court in the world.