EU Parliament Rejects New Fishing Subsidies, China's Latest "Airpocalypse," Greenpeace Piracy Charges Changed, ELI Award Dinner (by Bob Percival)

On October 23, the European Parliament voted to reject new subsidies to expand saltwater fishing fleets in the European Union.  The Parliament approved an $8.9 billion (6.5 billion Euro) budget to finance the EU’s Common Fisheries Policy for seven years.  The budget includes improved funding for research on fish stocks and enforcement of conservation measures, provisions sought by environmental groups.  However, the Parliament approved funding to subsidize the purchase of new engines for existing vessels, which may slow the shrinking of Europe’s fishing fleet, which is believed to be two to three times larger than sustainable levels. David Jolly, European Parliament Rejects New Subsidies for Fishing Fleets, New York Times, Oct. 23, 2013.

Drought is now blamed for the cataclysmic collapse of Bronze Age civilization in the Middle East during the years 1250-1100 B.C.  A study published on October 21 in Tel Aviv: Journal of the Institute of Archaelogy of Tel Aviv University examined ancient pollen grains from the years between 3,500-500 B.C.  The grains were extracted from sediment laying 65 feet underneath the bed of the Sea of Galilee and at Wadi Zeelum on the western margins of the Dead Sea. High resolution analysis of the grains of fossilized pollen showed a sharp decline in the growth of trees and other vegetation believed to be caused by sharp declines in precipitation.  Isabel Kershner, Pollen Study Points to Drought as Culprit in Bronze Age Mystery, N.Y. Times, Oct. 23, 2013, at A11.

Chinese authorities pursued emergency measures to combat extreme air pollution that has engulfed the northeastern town of Harbin, a city of 11 million people.  As levels of particulates in the ambient air reached more than forty times concentrations considered safe, roadblocks were established to check vehicle tailpipe emissions and officials went into the surrounding countryside to force farmers to stop burning cornstalks.  Schools were closed and flights were suspended at the Harbin airport. On October 24 China’s Ministry of Environmental Protection (MEP) announced that it was sending inspection teams to Harbin and other cities across the country to ensure compliance with environmental regulations. Edward Wong, Response to a City’s Smog Points to a Change in Chinese Attitude, New York Times, Oct. 25, 2013, at A12.

Russian authorities have dropped piracy charges, which carried 15-year prison terms, against Greenpeace activists who were seized while protesting offshore oil drilling in the Barents Sea.  The activists now have been charged with hooliganism, which carries a maximum seven-year prison term.  In response to the new charges Greenpeace stated that the activists “are no more hooligans than they were pirates.” Vladimir Chuprov, a representative of Greenpeace Russia stated that the Russian government’s action “represents nothing less than an assault on the very principle of peaceful protest.”  Paul Sonne, Russia Lessens Activists’ Charges, Wall St. J., Oct. 24, 2013, at A18.   On October 23 Russia’s Foreign Ministry announced that it would not attend an arbitration hearing by the International Tribunal of the Law of the Sea in Hamburg that had been sought by the government of the Netherlands in an effort to win release of the seized Greenpeace vessel Arctic Sunrise.

On Tuesday October 22 I attended the Environmental Law Institute’s annual award dinner at the Omni Shoreham Hotel in Washington.  This event has become what ELI proudly describes as the year’s largest gathering of environmental lawyers.  As always, it was great to see so many of my former students at the event. This year’s award winners were former Secretary of State George P. Shultz and philanthropist Thomas F. Steyer.  Together they led the successful, bipartisan campaign to defeat Proposition 23, a voter initiative that would have repealed California’s statewide program to control greenhouse gas emissions. Shultz, who is 93 years old, appeared by videotape and spoke about his long history of involvement in environmental efforts including the creation of EPA in 1970 and the ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer.  He indicated his support for measures to internalize the true costs of carbon and expressed optimism about the future direction of environmental policy.  In his acceptance speech Steyer stressed the importance of building bipartisan coalitions even in the face of current political polarization.  Senator Amy Klobuchar (D-Minn) introduced Steyer and also expressed optimism about the future, noting that EPA is in most capable hands with Gina McCarthy as administrator and that public backlash is mounting against anti-environmental extremists.  

Supreme Court to Review GHG Regs, Chevron RICO Trial Opens, Australian Carbon Tax, Kiribati Climate Asylum Claim, EU Delays Vehicle Regs (by Bob Percival)

On October 15, 2013 the U.S. Supreme Court announced that it will review a portion of the D.C. Circuit’s decision upholding EPA’s first regulation of greenhouse gas emissions in Coalition for Responsible Regulation v. EPA.  The Court limited its review to a single question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”  This means that the Court will not review EPA’s endangerment finding or tailpipe rule.  The focus in the Supreme Court instead will be on whether EPA can use the prevention of significant deterioration (PSD) program to regulate new sources of greenhouse gas (GHG) emissions.  As a result, EPA’s basic decision to use the Clean Air Act to regulate emissions of greenhouse gases no longer will be subject to legal challenge.  The question will be whether new and existing sources can be regulated in the absence of EPA promulgating a national ambient air quality standard (NAAQS) for GHG emissions under the Clean Air Act.  The case will be argued in the Supreme Court in early 2014 and it is likely to be decided before the Court adjourns at the end of June 2014.  

On Tuesday October 15 Chevron’s lawsuit against the plaintiffs and lawyers who successfully sued it for oil pollution in Ecuador opened in federal district court in New York.  The case is being tried before Judge Lewis Kaplan after Chevron dropped its claim for $100 million in damages to avoid a jury trial.  The case is the latest twist in decades of litigation initially brought in the same New York court nearly 20 years ago.  The case was dismissed from the U.S. courts in 2002 when the U.S. Court of Appeals for the Second Circuit accepted the oil company’s argument that the case instead should be heard in Ecuador.  But the court conditioned the dismissal on the company’s promise that it would accept the jurisdiction of the Ecuadoran courts.  After several years of legal proceedings in Ecuador, an Ecuadoran court ruled against Chevron in February 2011 and Chevron now is claiming that the judgment was a product of a fraudulent conspiracy between the plaintiffs, their lawyers, and the Ecuadoran judiciary.

Just as extreme heat and wildfires are about to return to Australia, new Australian Prime Minister Tony Abbott on October 15 unveiled his promised legislation to repeal the country’s carbon tax.  The carbon tax was a major campaign issue in last month’s national election in Australia that swept Abbott to power.  Under the proposed legislation, the carbon tax would be repealed effective July 1, 2014.  The Abbott government also plans to abolish the independent Climate Change Commission and the Clean Energy Finance Corporation.  Its argues that emissions of greenhouse gases can be better controlled through a “direct action” program offering competitive government grants to reduce emissions.

On October 16 Loane Teitiota, a 37-year old resident of the island of Kiribati, asked the High Court of New Zealand to grant him asylum, claiming that rising sea levels have made it too dangerous for him to return to his home. Teitiota is appealing the rejection of his asylum request by a New Zealand immigration tribunal.  The New Zealand High Court is expected to rule within a few weeks. Rising seas have damaged crops and contaminated drinking water supplies on Kiribati, one of the low-lying areas on earth.  The government of Kiribati has purchased 6,000 acres of land on Fiji to provide a possible resettlement site for some of its 100,000 residents. Lucy Craymere, Asylum-Seeking Man Cites Rising Seas, Wall St. J., October 17, 2013, at A10.

At a meeting of European environment ministers in Luxembourg on October 14, Germany joined Poland and the UK in opposing an agreement with the European Parliament to require motor vehicles to meet tougher GHG emissions standards by 2020.  The standards would require autos to emit no more than 95 grams of carbon dioxide per kilometer.  Acting at the behest of German luxury carmarkers, Germany succeeded in having the effective date of these standards postponed to 2024.  France, the Netherlands and Spain opposed the proposal, while Portugal and some eastern European countries supported it. Matthew Dalton, EU Emissions Plan Hits Roadblock, Wall St. J., Oct. 15, 2013, at B3. 

On October 14 the European Environmental Agency published an assessment of air quality in Europe.  The study, Air Quality in Europe -- 2013 Report, found that 90% of urban residents are exposed to air pollution at levels deemed harmful to human health.  The report noted that transboundary pollution remains a significant problem.  For many EU countries more than half of the small particulates (PM 2.5) found in their air originate in other countries.  Particulates and ozone pollution remain the most serious air pollution problems in Europe.  A copy of the report is available online at: http://www.eea.europa.eu/publications/air-quality-in-europe-2013.  The ten cities identified in the report as having the most serious air pollution problems are all located in Bulgaria and Poland.  These cities exceeded EU targets between one-third and one-half of the time in 2011.  Danny Hakim, Bulgaria’s Air Is Dirtiest in Europe, N.Y. Times, October 15, 2013, at B3.

On October 17 the Beijing city government announced a new strategy for responding to severe episodes of air pollution referred to as “Six Stops and One Wash.”  Private vehicles will be banned from the roads on alternate days depending upon their license numbers and street washing will be increased to hold down dust pollution.  If severe pollution continues for three days or more, factories will be shut down and construction halted and schools can be closed in certain circumstances.  Public transportation will be expanded on days when restrictions on private vehicle use take effect. Didi Kirsten Tatlow, Beijing City Officials Issue Rules to Counter the Effects of Persistent Air Pollution, N.Y. Times, Oct. 19, 2013, at A4.

The shutdown of the U.S. federal government disrupted the plans of many visitors to Washington, D.C., including a high-level delegation of Chinese environmental enforcement officials who were expecting to spend last week at EPA headquarters. The delegation, hosted by the Beijing office of the Environmental Defense Fund (EDF), including top officials from China’s Ministry of Environmental Protection (MEP) and enforcement officials from13 of China’s provinces.  It was led by Wang Dongqing, Deputy Director General of the Department of Environmental Enforcement and Inspection of MEP. At EDF’s request, I agreed to speak to the group about environmental enforcement issues on October 15. They seem surprised at how heavily the U.S. relies on self-monitoring and self-reporting by permit holders and the fact that U.S. regulatory officials are not subject to prosecution when they fail to prevent violations.  The officials also seemed fascinated by an automobile parked outside of EDF’s DC office.  Several had taken photos of it on their cellphone cameras.  It turned out to be my all-electric Tesla.

Mercury Treaty Signed, Haitian Cholera Victims Sue UN, French Fracking Ban Upheld, VELJ Symposium, ABA SEER Conference & ACOEL Meeting (by Bob Percival)

On October 10 representatives from 92 nations signed the Minimata Convention on Mercury.  The signing ceremony was held in Minimata, Japan, site of horrendous mercury poisoning caused by a chemical plant dumping mercury into the harbor of the small fishing village during the 1950s and 1960s.  Countries signing the treaty pledged to control emissions of mercury from new powerplants and to phase out the use of mercury in many products by the year 2020.  All mercury mining is to be neded in 15 years.  The treaty will take effect when ratified by 50 countries, which is expected to occur in three to four years.  Representatives of the U.S., who helped negotiate the treaty, left early without signing it due to the government shutdown.  

On October 9 victims of the deadly cholera epidemic in Haiti filed a class action lawsuit against the United Nations in federal district court in New York.  The lawsuit alleges that the October 2010 cholera outbreak, the first in Haiti in more than a century, can be traced to human sewage from Nepalese UN peacekeepers that leaked from pipes at the base of the United Nations Stabilization Force into a tributary of the Artibonite River. It is estimated that 8,300 Haitians died in the outbreak and 650,000 others were taken ill.  The UN undoubtedly will assert its long-established immunity from suit under the Convention on the Privileges and Immunities of the UN of 1946.  While expressing sympathy for the plight of the victims, UN officials have not conceded that its sewage caused the outbreak. Plaintiffs argue that the Convention specifies that the UN is to establish appropriate modes of settlement for third-party private law claims, but that it has failed to do so.  Due to the UN’s immunity, the lawsuit is  likely to be dismissed, but the widespread publicity it is receiving may increase pressure on the UN to provide some form of compensation to the victims.

France’s Constitutional Council has upheld that country’s ban on hydraulic fracturing.  The court rejected an appeal by a U.S.-based company, Schuepback Energy, which had been issued two permits to explore for shale gas prior to the fracking ban taking effect.  The court held that the environmental purpose of the fracking ban was legitimate, despite the company’s claim that there was no proof of environmental harm from fracking.  The company’s lawyers said they would continue separate litigation challenging the cancellation of their permits and seeking compensation  of €1 billion.  The decision was denounced by the French energy industry’s trade association, the GEP-AFTP, but applauded by Phillippe Martin, France’s environmental minister.  While France is believed to have some of the largest reserves of shale gas and oil in the EU, due to more extensive use of fracking in the U.S., the price of natural gas in Europe is three to four times higher than in the U.S. Hugh Carnegy, France Upholds Ban on Fracking, Financial Times, Oct. 12, 2013, at 10. 

This week I participated in three different conferences in three days.  On Wednesday I spoke on the opening panel of the Virginia Environmental Law Journal’s Symposium on “The Promise and Limits of Presidential Action on Climate Change.” The symposium was held at the University of Virginia Law School in Charlottesville.   Also on my panel were former EPA Assistant Administrator  Jeff Holmstead, UVA Law Professor Michael Livermore, UCLA Law Professor Ann Carlson, and USF Law Professor Alice Kaswan.  Our panel discussed the Obama Climate Action Plan, EPA’s proposed new source performance standard for powerplant carbon emissions, and EPA’s plans to use §111(d) of the Clean Air Act to regulate existing sources.  I gave a brief history of the use of presidential authority to protect the environment and argued that it is particularly appropriate for the President to act when Congress is in gridlock on environmental issues.  Prior to driving my Tesla down to Charlottesville, I was surprised to learn that there was only a single, public EV charging station there (in the Central Grounds Parking Garage on campus), but I was able to use it with no problem and drive back to Baltimore for my Environmental Law class late Wednesday.  

  

On Wednesday evening I attended a party at the National Aquarium in Baltimore sponsored by the law firm of Beveridge & Diamond.  The party was held in conjunction with the 21st Fall Conference of the ABA Section on Environment, Energy and Resource (SEER) Law.  I was delighted to see many of my former students at the party, including many who now work at the firm.

On Thursday I spoke on a panel at the ABA SEER conference on the constitutional limits to state authority to combat climate change.  I provided an opening overview of preemption and dormant commerce clause doctrines and how they have been applied in environmental cases.  I emphasized that the basic doctrines are relatively simple (the former focusing on congressional intent and the latter on whether state laws discriminate against interstate commerce), but they are often difficult to apply in practice.  I then introduced the Ninth Circuit’s September 18th decision in Rocky Mountain Farmers Union v. Corey (see Sept. 22, 2013 blog post), which rejected claims that California’s Low Carbon Fuel Standard (LCFS) violated the dormant commerce clause.  Also on the panel with me were Sean Donahue, who argued Rocky Mountain Farmers for the victorious environmental intervenors, and Shannon Broome, who represented the plaintiffs.  The Ninth Circuit’s decision does an excellent job of explaining how the LCFS calculates carbon intensity and why it does not discriminate against out-of-state fuel producers even though some carbon intensity values are calculated on the basis of location.

On Thursday night I flew to Boston where I attend the annual meeting of the American College of Environmental Lawyers (ACOEL) on Friday and Saturday.  Jim Bruen, who came to China with me in August as part of ACOEL’s pro bono project, presented a report on the progress of this initiative, which has resulted in the signing of memoranda of understanding making ACOEL a clearinghouse for connecting U.S. environmental lawyers with Chinese environmental groups, including the Beijing office of the Natural Resources Defense Council.  At the luncheon on Friday I spoke to ACOEL’s Policy Committee about the work of environmental groups in China.  On Saturday morning I met in Boston with representatives of a Chinese company interested in designing innovative new approaches to teaching about sustainability and energy policy, a possible project for my sabbatical next year.

The U.S. Supreme Court did not make any announcement on Friday concerning the cert petitions it is considering that pertain to the D.C. Circuit’s June 2012 decision upholding EPA’s initial greenhouse gas regulations.  The Court may announce whether it is granting any of the nine petitions on Tuesday (the Court is closed tomorrow for the Columbus Day holiday).

BP Trial Resumes, Chevron Ducks Jury Trial, Florida Sues Georgia Over Water Use, Piracy Charges Against Greenpeace, Pollution Disrupts China (by Bob Percival)

The second phase of the trial against BP for the 2010 oil spill in the Gulf of Mexico began last week in federal district court in New Orleans.  This phase of the trial will focus on the dispute over the amount of oil released in the spill, which is crucial to determining the size of the ultimate civil penalty BP will have to pay.   In their opening, lawyers for the federal government claimed that BP lied about the amount of oil that was leaking from the bottom of the Gulf after the April 2010 blowout at the Macondo well that killed 11 people on the Deepwater Horizon oil rig.  On October 2 BP won an order from the U.S. Court of Appeals for the Fifth Circuit directing Judge Carl Barbier to reconsider claims administrator Patrick Juneau’s interpretation of a settlement agreement that BP claims was resulting in payments that were too generous.  BP originally believed that the settlement would cost the company $7.8 billion, but it raised this estimate to $9.6 billion last July. Approximately $3.7 billion already has been paid out under the settlement.

On September 30 Chevron dropped its request for damages in its RICO suit against the lawyers and plaintiffs who won what is now a $19 billion judgment against the company for oil pollution in Ecuador.  The move was an effort to avoid a jury trial of Chevron’s claims that the lawsuit was part of an elaborate conspiracy to defraud the company.  Daniel Gilbert, Chevron Bids to Skip Jury in Ecuador Suit, Wall St. J., Oct. 1, 2013, at B3.  Fearful that a jury would ruled against it, Chevron apparently is more eager to get a formal ruling of fraud from Judge Lewis Kaplan than it is to obtain compensation.  Kaplan previously issued an injunction to bar efforts to enforce the judgment anywhere in the world, an injunction that was overturned on appeal.  Defendants in the RICO suit, including Steven Donziger, former lead lawyer for the pollution victims, asked the U.S. Court of Appeals to remove Judge Kaplan from hearing the case because of his alleged bias.  However, after hearing oral argument on September 26, a three-judge panel of the Second Circuit denied the motion without giving a formal reason.  Based on the judges’ comments at oral argument, it is likely that the denial was based on mandamus to remove a judge being an extraordinary remedy and the fact that any decision Judge Kaplan makes can be challenged on appeal.  The trial is scheduled to begin on October 15.

On September 30 the state of Florida filed suit against the state of Georgia for excessive consumption of upstream water.  The suit was filed in the U.S. Supreme Court, which has original jurisdiction over lawsuits between states.  Florida, Alabama and Georgia have been fighting over water use for the past two decades, but previous lawsuits were filed against the U.S. Army Corps of Engineers to contest how it regulates interstate water use.  Florida argues that a historic collapse of oyster harvests in Apalachicola Bay has been caused by reduced water flows into it from the north.  Arguing that the lawsuit was “frivolous,” a spokesman for Georgia Governor Robert Bentley attributed the oyster collapse to overharvesting and drought.  Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J., October 1, 2013.

A Russian court in Murmansk has now filed piracy charges against all 30 people from 19 countries who were onboard the vessel Arctic Sunrise when it was used by Greenpeace activists to protest oil drilling in the Arctic (see blog posts from Sept. 22 and 29 of this year).  The charges, which carry prison terms up to 15 years, seem ludicrous on their face.  They are spawning protests aroudn the world, including in Russia, London, and the Netherlands, which has demanded the return of the vessel that flies its flag. 

Hazardous levels of air pollution plagued northern China this weekend, leading to flight cancellations and road closures during the end of China’s “Golden Week” holiday.  The pollution resulted in delayed starting times for golfers at the Reignwood Ladies Professional Golfing Association (LPGA) Classic, the first LPGA event ever held in China.  The U.S. Embassy in Beijing reported that air pollution levels reached 400 on Saturday night using an index in which anything over 301 is considered hazardous to health. Louise Watt, Pollution Disrupts Sports Events, Travel in China, Associated Press, October 6, 2013.