COP-19, Russia Defies Law of the Sea Tribunal, Putin on Russia's Environment, China's Third Plenum, Chevron RICO Oped and Letter (by Bob Percival)

COP-19 in Poland ended on Saturday with a heroic effort to paper over festering differences between developed and developing countries.  China and India backed off their objections after conferences leaders agreed to change the description of the pledges each country must submit by early 2015 concerning its actions to combat climate change from “commitments” to “contributions.” Substantial progress was made on fleshing out the REDD program to reduce deforestation.  Some progress was made toward developing a mechanism for providing funds to developing countries to adapt to climate change and for “loss and damage,” but developed countries adamantly refused to be held expressly liable for damages caused by climate change.  Agreement was not reached on specifics concerning how developed countries would meet their 2009 Copenhagen commitment to provide $100 billion to a green climate fund for developing countries.  The Polish government, host of the conference, announced the replacement of its environment minister during the event with a minister perceived as less sympathetic to the environment and it hosted a global coal industry forum in tandem with the climate conference. 

At the behest of the government of the Netherlands, last week the International Tribunal for the Law of the Sea ordered Russia to release the Greenpeace vessel Arctic Sunrise that Russia seized in international waters off its northern coast in September when it arrested activists protesting Russian oil drilling in the Arctic. The Tribunal also ordered Russia to release the 30 activists and journalists who had been on the ship upon the posting of a 3.6 million Euro bond by the government of the Netherlands.  Russia rejected the decision, claiming that despite the mandatory dispute resolution procedures in the Convention on the Law of the Sea, it would not respect decisions that it believes infringe on its sovereignty.  When it ratified the Law of the Sea Convention in 1997, Russia submitted a reservation to anything that would infringe on its sovereignty.  Citing this reservation, Russia boycotted the proceedings before the Law of the Sea Tribunal.   China currently is boycotting a Tribunal arbitration initiated by the Philippines concerning China’s territorial claims to islands in the South China Sea.   The Chinese government argues that the Tribunal has no jurisdiction to hear territorial claims.  Last week a court in St. Petersburg granted bail to most of the imprisoned Greenpeace activists, who still face trial in February on hooliganism charges. Upon his release on bail, Peter Willcox, captain of the Arctic Sunrise, reported that the Russian commandos who arrested him stole and drank the alcohol that had been kept on board.

On November 20 Russian President Vladimir Putin told his National Security Council that Russia must put greater emphasis on protecting its environment or future generations will be “left with nothing.” Putin noted that Russia currently spends only 0.8% of its GDP on environmental protection, an amount far less than other developed countries.  He observed that Russian industry is dominated by “dirty” technologies and that little legislation has been adopted to back up previous government rhetoric about the importance of environmental protection.  Among the most urgent environmental priorities outlined by Putin were protection of Lake Baikal, Lake Onega, and Lake Ladoga.

With Northern China again engulfed in pollution so bad that highways and airports have been forced to close due to visibility problems, environmental protection remains a top priority of the Chinese government.  An English translation of the document released this month by China’s Third Plenum of the Communist Party, called “Resolution Concerning Some Major Issues in Comprehensively Deepening Reform,” is available online at:  http://www.china.org.cn/china/third_plenary_session/2013-11/16/content_30620736.htm  It is considered a blueprint for how Xi Jinping plans to govern China and it has several provisions that address environmental concerns.  The document states that the Chinese government “must effectively shifts its role by building itself into a service-type government that bases its functions on the law.”  It concludes that the current system for assessing the performance of officials “overemphasizes GDP growth” and it pledges to impose a consumption tax on “energy and pollution intensive products” while changing “the current environmental-protection fee into an environmental tax.” The document states that more law enforcement resources will be devoted to environmental protection and that the judiciary will become more transparent, and its independence and fairness ensured. In a penultimate section entitled “Ecological Civilization” the document promises “the strictest possible rules to protect the ecological system” and it pledges to “push ahead with a trading system for pollutant discharge, carbon emissions and water rights.” It also promises to: “Establish a system in which all pollutants are monitored and regulated. Release timely environmental information and improve the reporting system to strengthen social supervision. Improve the pollutant-discharge licensing system and control the pollutants.”  Finally, it declares that “[p]olluters who damage the environment must compensate for the damage and could receive criminal sanctions.”

On Wednesday November 20 the Washington Post printed a letter to the editor that I wrote concerning an oped the paper had published on November 16 about Chevron’s RICO lawsuit against plaintiffs and their lawyers who won a judgment against Chevron for oil pollution in Ecuador (http://www.washingtonpost.com/opinions/chevron-could-have-enjoyed-us-justice-sooner/2013/11/18/26187f8a-4f92-11e3-9ee6-2580086d8254_story.html).  The oped, David B. Rifkin, Jr. & Andrew M. Grossman, “U.S. Justice Exposes an Ecuadoran Fraud,” was a somewhat premature victory lap for Chevron by claiming, prior to any decision in the case, that the company’s RICO lawsuit had exposed “a fraud, part of a 20-year scheme to extort money.”  But, as my letter pointed out, 20 years ago the lawsuit originally had been filed by the plaintiffs in the very court the authors of the oped now lauded.  It was dismissed initially only because the oil company insisted that the case should be heard in Ecuador, something the oped did not disclose.  The oped also did not disclose that the authors’ law firm has Chevron as a client, something the Post corrected on November 23 with an unusually prominent “Clarification” on the editorial page.

On Friday November 22 the University of Maryland Carey Environmental Law Program hosted its 22nd Annual Environmental Law Winetasting party in Westminster Hall in Baltimore.  Nearly 200 faculty, students, alums and friends of the program participated in the event that featured 80 wines.  I provided the wines, including a couple of cases of very old wines from my wine cellar, such as a bottle of 1982 Chateau Mouton Rothschild, a 1982 Chateau L’Evangile, and four vintages of Pichon Longueville Comtesse de Lalande from the 1980s.  We also tasted the brand new 2013 Beaujolais nouveau that has just arrived in the U.S.  The “mystery wine” tasted blind was a magnum of 2005 Pichon Lalande, a great second growth from the Pauillac region of Bordeaux. This year’s winners in the annual “Guess the Mystery Wine” contest included: KK Cooper and Megan Marzec for guessing the correct vintage year, Jennifer Lehman and Karen McGullam for correctly guessing that the wine was from France, and Michael Brown and Denjelle Midgley for correctly guessing the type of wine.  An album of photos from the event is posted in the “Photo Album” section of of my parallel website at http://www.globalenvironmentallaw.com. 

COP-19 and Japan's Revised Copenhagen Commitment, Philippine Relief, Ecuador Court Halves Chevron Judgment, Unilever Palm Oil Pledge & Mercury Convention (by Bob Percival)

The 19th Conference of the Parties to the UN Framework Convention on Climate Change (COP-19) opened in Warsaw last Monday.  Expectations are low, but the focus is on creating a roadmap to an eventual agreement by 2015 on a successor to the Kyoto Protocol and the development of mechanisms for compensating developing countries who suffer loss and damage from climate change.  A pall was cast over the negotiations when the government of Japan announced on Friday that it has scaled back its commitment to reduce greenhouse gas (GHG) emissions due to the shutdown of its nuclear power industry in the wake of the Fukushima Daiichi disaster.  Japan now pledges that its GHG emissions will increase by no more than 3% over 1990 levels by the year 2020.  In response to the Copenhagen Accord Japan had pledged in January 2010 to seek a 25% reduction in its GHG emissions by 2020.  Prior to the March 2011 Fukushima accident, nuclear power had provided 30% of Japan’s electricity.  At the Warsaw negotiations Japan pledged to contribute $16 billion in public and private funds by 2015 to help developing countries reduce their GHG emissions.  On Wednesday Australia’s new government introduced legislation to repeal that country’s carbon tax, fulfilling a campaign pledge.  Hiroko Tabuchi and David Jolly, Japan Backs Off From Emissions Target, Citing Fukushima Disaster, N.Y. Times, Nov. 16, 2013, at A4.

The Philippines is struggling to recover from the devastation of Typhoon Haiyan, which some believe to have been the most powerful storm in history.  At the COP-19 negotiations, Philippine delegate Naderev “Neb” Saño made a plea for “drastic action now to ensure that we prevent a future where super typhoons become a way of life.” Philippine public interest environmental lawyer Tony Oposa (see July 28, 2013 blog post) reports that while none of the staff of his School of the SEA (Sea and Earth Advocates) perished, five of the school’s seven buildings were destroyed.  From the maps tracing the typhoon’s path, it looked to me like Tony’s school was directly in the path of the fiercest part of the typhoon, but he reports that it hit during very low tides and that there is a very large tidal flat protecting the school.  The school’s White House (conference hall) was damaged, but their Climate Change House, built after the school was hit by Typhoon Frank in 2008, survived.  Durwood Zaelke’s Institute for Governance & Sustainable Development (IGSD) (info@igsd.org) will be coordinating efforts to collect contributions for rebuilding the School of the SEA. 

On Tuesday Nov. 12, Ecuador’s National Court of Justice upheld a judgment against Chevron Corporation for oil pollution in the Amazon during the 1980s, but cut the size of the award in half from $19 billion to $9.5 billion.  The initial decision in February 2011 by a trial court in Lago Agrio, Ecuador had specified that the judgment would double if Chevron did not apologize to the people of Ecuador within 10 days.  This was the portion of this decision that I questioned from the outset.  Chevron refused to apologize and thus it was hit with the punitive damages award that Ecuador’s highest court has now properly thrown out.  It is revealing that the plaintiffs actually praised the decision by Ecuador’s highest court because it upheld the rest of the judgment.  Meanwhile the unusual trial of Chevron’s Racketeering Induced Corrupt Organizations (RICO) lawsuit against the Ecuadoran plaintiffs and their attorneys continues in federal district court in New York, the court that most U.S. media organizations fail to mention was the place the plaintiffs initially filed their lawsuit.  Mercedes Alvaro & Daniel GIlbert, Ecuador Affirms, Halves Chevron Judgment, Wall St. J., Nov. 13, 2013, at A1.  The plaintiffs initial lawsuit eventually was dismissed in the U.S. at the behest of the oil company defendants who insisted that it should be heard by the courts of Ecuador. Having lost in Ecuador, they are now charging that the very courts that they claimed were the best place to hear the claims are corrupt.

On February 12 Unilever PLC, the world’s largest purchaser of palm oil, announced that by the end of 2014 it will ensure that all of the palm oil it buys comes from verified sources.  The company is making this pledge so that it eventually will be able to drop suppliers who produce palm oil in ways that unnecessarily damage the environment.  Unilever purchases1.3 million tons of palm oil each year. Unilever previously has promised that by 2020 it will only purchase palm oil from sources that are certified as sustainable.  The company admitted that at the end of last year only 5% of the palm oil it purchased came from verified and certified sources. Other large palm oil purchasers, including Nestle SA and the Procter & Gamble Company have committed to sustainable palm oil sourcing.  Peter Evans, Unilever to Verify Palm-Oil Suppliers, Wall St. J., Nov 13, 2013, at B7.

Last week’s blog (Nov. 10, 2013 blog post) reported that on November 6 the U.S. signed the Minimata Convention on Mercury, and it disputed press reports that the U.S. had “ratified” it, noting that the Senate will not ratify any treaty in the current political climate.  It turns out that the press confusion over “ratification” stemmed from the fact that the U.S. also became the first nation to deposit its “instrument of acceptance” of the Convention with the United Nations.  The Convention provides that it will enter into force “on the ninetieth day after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession.”  The State Department explained why it formally accepted the Minimata Convention without seeking Senate ratification in the following statement: “The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority.  The Minimata Convention complements domestic measures by addressing the transnational nature of the problem.” In 2008 Congress passed, and President George W. Bush signed into law the Mercury Export Ban Act that added §§ 6(f) and 12(c) to the Toxic Substances Control Act to prohibit the sale, distribution, transfer and export of elemental mercury.  Coupled with EPA’s Clean Air Act regulations on mercury emissions from power plants, the U.S. does not need new legislation on mercury so the Minimata Convention can be accepted as an executive agreement. 

On November 14 the Tennessee Valley Authority (TVA) announced that it is closing eight coal-fired generating units at power plants it currently operates at three locations in Alabama and Kentucky.  These plants are among the oldest and dirtiest sources of electricity in the U.S.  In 2011 TVA promised the U.S. Environmental Protection Agency in a settlement that it would close 18 coal-fired generating units by the year 2018.  Many electric utilities in the U.S. are shifting away from coal in favor of cheaper natural gas. Rebecca Smith, In a Blow to Coal, TVA to Shut 8 Units, Wall St. J., Nov. 15, 2013, at B3.

On Monday Joanna Goger from the Environmental Studies Program at the University of Maryland College Park gave a guest lecture on protection of biodiversity in my Environmental Law class.  Joanna is coauthoring a book on Water Resources Management and Protection with my colleague Mike Pappas and I.  On Monday night my wife and I attended Freshfarm Market’s annual Farmland Fest at the Ritz-Carlton Hotel in Washington D.C.  We won the silent auction for an extraordinary case of wine from the wine cellar of restaurateur Mark Kuller.  I may serve some bottles of this wine next Friday Nov. 22 when Maryland’s Environmental Law Program hosts our 22nd Annual Environmental Law Winetasting.

On Friday November 15 I was visited by Andriy Volkov of Odessa State University of Environmental Studies in Ukraine.  We discussed environmental issues facing Ukraine including the status of efforts to strengthen containment of radioactive contamination inside the damaged nuclear reactor at Chernobyl (see March 22, 2009 blog post concerning my visit to Chernobyl).  Professor Volkov demonstrated the computer program he created to track environmental contamination for his startup Environmental Decision Support Services (http://environmental-dss.com).

U.S. Signs Mercury Treaty, COP-19 to Open in Warsaw, U.S. Off-Year Election, Tesla in Beijing, Macalester Visit (by Bob Percival)

On November 6 Dr. Kerri-Ann Jones, the U.S. Assistant Secretary of State for Oceans and International and Scientific Affairs, signed the Minimata Convention on Mercury on behalf of the United States.  U.S. representatives to the international conference launching the treaty in Japan last month had to go home without signing the convention because of the U.S. government shutdown (see October 13, 2013 blog post).  One news organization last week erroneously reported the signing as meaning that the U.S. had “ratified” the convention, something that would require a two-thirds vote in the U.S. Senate.  Even the Law of the Sea Treaty has failed to win Senate ratification despite overwhelming bipartisan support from political leaders, business interests, and the environmental community.

Tomorrow the 19th Conference of the Parties to the UN Framework Convention on Climate Change (COP-19) and the 9th session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol begins in Warsaw, Poland.  This is the annual global climate gathering that now focuses on how to fulfill the promise of the “Durban Platform,” made two years ago at COP-17, to develop a successor to the Kyoto Protocol to control global greenhouse gas emissions (GHGs) effective in 2015. The COP will run from November 11 to 22.  It is being held at the National Stadium in Warsaw.  The UN website for the conference is at: http://unfccc.int/meetings/warsaw_nov_2013/meeting/7649.php.  The host country website for the conference is at: http://www.cop19.gov.pl.  Poland, which is heavily dependent on power from coal-fired power plants, has been one of the countries most resistant to efforts to control emissions of GHGs.  Last year COP-16 was held in Doha, Qatar, the country with the highest per capita emissions of GHGs in the world.

On November 5 off-year elections were held in some U.S. states.  By a vote of 52% to 48% Washington state voters rejected a ballot initiative that would have required labeling of genetically-engineered food products.  After the initiative was first proposed, polls showed that a majority of voters favored it, but a massive advertising campaign by food and biotech companies helped turn public opinion around.  The Grocery Manufacturers Association (GMA) spent $11 million of the $22 million spent by the opponents.  The companies argued that labeling is expensive and unnecessary because genetically engineered food products are just as safe as other products.  In 2012 opponents of GMO labeling spent $46 million to defeat a similar labeling initiative that initially had been favored to pass in California.  Proponents of Washington state initiative spent $8 million.  State law in Washington forced the disclosure of the identities of companies spending on the initiative.  It also was disclosed that GMA’s “Defense of Brand” strategy is planning seek federal legislation to preempt state GMO labeling laws.  Proponents of the initiative support just the opposite -- mandatory federal labeling legislation. Stephanie Strom, Food Companies Claim Victory Against Labeling Initiative in Washington State, N.Y. Times, Nov. 7, 2013, at A17.

Voters in three Colorado cities approved ballot measures to restrict hydraulic fracturing, while voters in a fourth narrowly rejected such a measure.  Five year moratoria on fracking were approved by voters in Boulder and Fort Collins.  Voters in Lafayette approved an outright ban on fracking.  Voters in Broomfield appear to have rejected a moratorium on fracking by only 13 votes out of more than 20,000 cast. In Youngstown, Ohio voters also rejected a ban on fracking. The fracking battle in Colorado now is expected to move statewide as the oil and gas industry tries to have local bans preempted by state law.  Russell Gold, Colorado Fracking Fight Looms After Local Bans Passed, Wall St. J., Nov. 7, 2013, at A8.

Speaking of preemption, last week the Food and Drug Administration (FDA) proposed to give manufacturers of generic drugs freedom to change the labels on their products to take account of newly acquired information.  FDA regulations require generics to use the same labels as brand name drugs, which spawned a legal anomaly.  In the Wyeth v. Levine case in 2009 the U.S. Supreme Court ruled that FDA approval of a therapeutic drug did not  insulate brand name manufacturers from state tort liability for failure to warn of subsequently discovered dangers of a particular method of injecting the drug.  However, in Pliva v. Mensing in 2011 the Court held that state tort liability was preempted for the very same drug if manufactured in generic form because generic manufacturers are not allowed to change the labels.  Noting that this difference in preemption “made little sense,” the Court majority observed that the regulations could be changed by the FDA or Congress.  The FDA has now proposed to change the regulations.  While normally one would expect an industry to support a move to relax the regulations applicable to it, this is not how the generic pharmaceutical industry reacted last week.  Fearful of being subject to the same tort liability as brand name manufacturers, generic manufacturers did not voice support for the FDA proposal.  The Generic Manufacturers Association observed that it “could raise costs”.  The U.S. Chamber of Commerce declared that the “FDA’s proposal writes a prescription for mega lawsuits against generic drug makers.” Thomas M. Burton & Brent Kendall, FDA Proposes Letting Generic- Drug Makers Change Labels, Wall St. J., Nov. 8, 2013.

Last week U.S. electric car manufacturer Tesla Motors opened its first showroom in Beijing.   The showroom is in the Parkview Green Mall in the Chaoyang district of Beijing.  Tesla has had a showroom in Hong Kong for a year and the first Tesla to be imported to the Chinese mainland was delivered from there to Beijing three weeks ago. The China Daily reports that the Tesla S is priced in Beijing at between $146,000 and $200,000, approximately twice the price in the U.S., which is largely the result of Chinese import duties and greater transportation costs.  Tesla reportedly is making an initial shipment of 100 Tesla S’s for the mainland Chinese market.

On Thursday I traveled to Minnesota to visit faculty and students in Macalester College’s interdisciplinary Environmental Studies program.  I had dinner on Thursday night with Macalester faculty and a lunch with students on Friday.  On Friday afternoon I gave a lecture on “Rio+20 and the Evolution of Global Environmental Law” to Professor Roopali Phadke’s Environmental Politics and Policy course.  I continue to be enormously impressed with the school’s Environmental Studies program and the excellent quality of its faculty and students.

Treasury to Oppose International Funding for Coal Plants, Pacific Northwest Climate Agreement, EU Aviation Charges, Canadian EA Regs & Invasive Carp (by Bob Percival)

On October 29 the U.S. Treasury Department announced that the U.S. government no longer will support coal-fired powerplant projects funded by the World Bank and other international development banks.  Michael D. Shear, U.S. Says It Won’t Back New International Coal-Fired Power Plants, N.Y. Times Oct. 30, 2013, at A18.  While the U.S. does not have veto power over such projects, the World Bank announced in July that it would significantly restrict future funding for them.  In his new book published by Island Press Foreclosing the Future: The World Bank and the Politics of Environmental Destruction, my friend Bruce Rich estimates that of the $10 billion in energy lending by the Bank in 2010 nearly two-thirds went to support fossil fuel projects and only one-third for energy efficiency and renewable energy projects.  Bruce’s book has been the subject of some favorable reviews recently.  See Pilita Clark, Foreclosing the Future, Financial Times, Nov. 1, 2013, and Mimi Dwyer, Where Did the Anti-Globalization Movement Go? The New Republic, Oct. 25, 2013. Bruce will be doing a book event at Busboys & Poets (14th & V Streets) in Washington, D.C. on Monday November 11 at 6:30pm.

On October 28 a new agreement to coordinate efforts to control greenhouse gases (GHG) emissions was signed in San Francisco by the governors of California, Oregon and Washington and the environment minister of British Columbia.  The pact pledges that the three U.S. states and the one Canadian province will adopt controls on GHG emissions, standardize energy efficiency standards, and promote greater use of zero emissions vehicles.  More than 53 million people live in the three states and British Columbia, which together account for $2.3 trillion in gross domestic product that would represent the fifth largest economy in the world.  The state legislatures of Oregon and Washington previously have balked at adopting the kind of aggressive laws to control GHG emissions that California has adopted.  Michael Wines, Climate Pact Is Signed by 3 States and Partner, N.Y. Times, Oct. 30, 2013, at A18.

Last month in Montreal delegates to the general assembly of the International Civil Aviation Organization (ICAO) agreed in principle to develop a market-based mechanism to neutralize greenhouse gas (GHG) emissions from aviation by the year 2020.  In the meantime the EU is proposing a scaled-back version of its controversial emission charges for aviation that between 2014 and 2020 would apply only to emissions made over EU airspace instead of to emissions from the entire flight to or from the EU.  While this represents a narrowing of the previous EU regulations that were suspended for one year to give the ICAO time to negotiate an agreement, it has been denounced by non-EU countries as inconsistent with the spirit of the Montreal agreement, indicating that the controversy may resume in the future.

The government of Canada has announced amendments to its environmental impact assessment regulations that will exclude from assessment certain types of projects and those that fall below certain size thresholds.  Excluded projects reportedly will include “groundwater extraction facilities; heavy oil and oil sands processing facilities; pipelines, other than offshore pipelines, and electrical facilities not regulated by the National Energy Board; potash and other industrial mineral mines; and a range of industrial facilities, including pulp mills, pulp and paper mills, steel mills, metal smelters, leather tanneries and textile mills, as well as manufacturing facilities for chemicals, pharmaceuticals, pressure-treated wood, particle board, plywood, chemical explosives, lead-acid batteries and respirable mineral fibers.” Peter Menyasz, Canada Amends Regulations for Assessments to Focus on Projects that Pose Most Risks, BNA Daily Environment Report, Oct. 29, 2013. The regulations also designate other projects for assessment including the first offshore exploratory oil wells in an area licensed for exploration and expansions in oil sands mines.

On October 28 scientists announced that four Asian grass carp had successfully reproduced in the Great Lakes watershed.  Great Lakes states have been struggling to prevent invasive species of Asian carp that have plagued the Mississippi River watershed from reaching Lake Michigan and the Great Lakes watershed.  The carp were found in Ohio’s Sandusky River, a tributary of Lake Erie.  The Army Corps of Engineers, which has employed an electronic barrier in an effort to stop the spread of the carp, is working on a long-term plan to combat the invasive carp.