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.