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.