10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, December 29, 2013

Challenge to BP Settlement Rejected, Shanghai Air Pollution, Russia Drops Charges Against Greenpeace Protesters (by Bob Percival)

On December 24 a federal district judge rejected an effort by BP to require more stringent proof of losses before claims can be paid from the settlement fund created in response to the April 2010 Deepwater Horizon oil spill.  The U.S. Court of Appeals for the Fifth Circuit had ordered Judge Carl Barbier to review how the Deepwater Horizon Claims Center was handling claims for economic and property losses related to the spill.   Judge Barbier ruled that BP had agreed to a settlement that would presume that losses to businesses within certain geographic areas near the spill could be compensated without direct proof of causation.  BP, which has been waging an aggressive publicity campaign against the way claims are being paid, could not now reinterpret the settlement, Judge Barbier stated.  “[T]he delays that would result from having to engage in a claim-by-claim analysis of whether each claim is ‘fairly traceable’ to the oil spill . . . are the very delays that the settlement, indeed all class settlements, are intended to avoid.” The judge did direct the claims administrator to define a protocol to improve documentation of some losses.  BP initially estimated that it would pay $7.8 billion under the settlement, but it has now increased that figure to $9.2 billion while expressing concern that it could grow significantly larger.

Children were warned to stay indoors as Shanghai was engulfed in another bout of severe air pollution during Christmas week.  On the afternoon of December 25 levels of small particulates (PM2.5) in Shanghai approached 400 micrograms per cubic meter, more than fifteen times the level recommended by the World Health Organization.  Earlier in the month PM2.5 levels had approached 500.  Zhang Quan, director of the Shanghai Environment Protection Board, stated that it will take another decade to solve the city's air pollution problems.

On December 25 Russia formally dropped charges of criminal hooliganism against the Greenpeace activists it had arrested in September.  The activists had been protesting oil drilling in the Arctic when Russian commandos boarded the Arctic Sunrise, a Greenpeace vessel that had transported the protesters to the vicinity of an offshore oil rig in the Pechora Sea.  The charges were dropped as part of an amnesty reportedly ordered to improve Russia’s image prior to the upcoming Sochi Olympics. Peter Wilcox, captain of the Arctic Sunrise, expressed relief that the charges had been dropped, while noting that the activists never should have been arrested.

Next week in my first post of the new year I will prepare my annual list of the top global environmental law developments of 2013.  Happy holidays to all.

Sunday, December 22, 2013

Canadian Court Allows Chevron/Ecuador Enforcement Action, Australia Cuts EDOs, California Lead Paint Decision, EC Air Pollution Controls (by Bob Percival)

On December 17 the Ontario Court of Appeals ruled that an action to enforce a $9.5 billion judgment against Chevron by a court in Ecuador could proceed.  Plaintiffs representing 30,000 residents of Sucumbios province, Ecuador, who claim they were harmed by oil pollution won the judgment in February 2011.  Because Chevron has pulled all of its assets out of Ecuador, the plaintiffs have been seeking to enforce the judgment in Canada, Brazil, and Argentina.  In May 2013 a trial court in Ontario had stayed the enforcement action on the ground that Chevron’s Canadian subsidiary was a distinct corporate entity whose assets could not be used to satisfy a judgment against the parent corporation. The Ontario Court of Appeals reversed.  

First, the Court of Appeals rejected Chevron’s claim that Ontario itself must have a real and substantial connection to the subject of the litigation in order for the court to have jurisdiction to enforce an Ecuadoran judgment.  The court held that “the exclusive focus of the real and substantial connection test is on the foreign jurisdiction” and that Chevron action’s in Ecuador clearly met this test. Second, the court concluded that the trial judge improperly imported notions of forum non conveniens in ordering the stay by reasoning that the U.S. would be a better venue for enforcement. The court concluded by noting that:
“Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. ‘We’re going to fight this until hell freezes over.  And then we’ll fight it on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction.  At this juncture, Ontario is that jurisdiction.”
Chevron states that it is considering appealing the decision to the Supreme Court of Canada. 

The Australian government announced last week that it will eliminate all federal funding for Environmental Defenders Offices (EDOs) that bring public interest environmental litigation.  Some EDOs were told their funding would be cut immediately.  All federal funding of EDOs will be eliminated by July 1, 2014. The move is widely viewed as an expression of Prime Minister Tony Abbott’s hostility toward environmental protection measures.  Shortly after taking office in September his government abolished the Climate Commission, which focused on the science and economics of carbon pricing.  The Commission quickly was revived using private funds, which many hope also will happen for the EDOs.

Last week a federal jury in New Orleans convicted Kurt Mix, a former engineer for BP, of a single felony count of obstruction of justice for deleting more than 200 text and voice messages that the government argued contained important evidence concerning the 2010 oil spill in the Gulf of Mexico. The defense had argued that Mix did not intend to destroy evidence.  The jury acquitted Mix of a second count of obstruction of justice.  Three other current or former BP employees face criminal charges in connection with the spill.

A Superior Court judge in San Jose, California last week held three companies liable for marketing lead-based paint prior to it being banned in 1978. The lawsuit was brought by ten California cities and counties, including San Francisco, San Diego, and Los Angeles County.  The plaintiffs argued that the companies had known since 1937 that lead paint was dangerous to children’s health, but attempted to conceal its dangers.  Judge James Kleinberg found the companies liable for a public nuisance and ordered them to pay $1.1 billion to create a lead paint abatement program.  The defendants found liable were Sherwin-Williams Co., NL Industries, Inc. and ConAgra Grocery Products LLC.  Two other defendants - Atlantic Richfield and DuPont - were held not liable. Similar public nuisance claims against the manufacturers of lead paint have been unsuccessful in several other states.

Citing studies indicating that air pollution causes 400,000 premature deaths per year in Europe, the European Commission on December 18 released a draft of new air pollution controls. The new measures would impose tighter limits on air pollution from power plants and industrial sources and it would restrict the amount of pollutants each country could generate.  The Commission estimates that it would reduce premature deaths from air pollution by 58,000 per year by the year 2030.  Much of Europe is not complying with the EU’s existing air pollution standards, which will still be more relaxed than the levels recommended by the World Health Organization.

Last March China announced that it would become the first major developing country to adopt an ultra-low sulfur fuel standard for gasoline. On December 18 China’s Standardization Administration announced the new regulations to implement this decision.  The new standard, which will be known as “China 5,” will limit levels of sulfur in gasoline to 10 ppm, a significant drop from current regulations limiting sulfur in gasoline to 50 ppm.  However, the new standards will not take effect across China until January 1, 2018.


On December 19 the Supreme Court of Pennsylvania by a vote of 4-2 invalidated significant portions of the state’s Act 13 of 2012 that had attempted to bar local regulation of hydraulic fracturing operations.  Three justices found that the stricken provisions violate the public trust doctrine enshrined in Section 27 of the Declaration of Rights in the Pennsylvania Constitution. A fourth justice found that the provisions violate substantive due process.  The court declared that “a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.” Robinson Township v. Commonwealth of Pennsylvania (Supreme Court of Pennsylvania Dec. 19, 2013).

Sunday, December 15, 2013

Red Sea to Dead Sea Project, Supreme Court Hears Interstate Air Pollution Case, EPA Administrator in China (by Bob Percival)

On Monday December 9 officials from Israel, Jordan and the Palestinian Authority announced an agreement on a long-discussed plan to pump water from the Red Sea to create drinking water and to replenish the shrinking Dead Sea. Under the plan private investors will be asked to finance the construction of a new desalination plant in Jordan on the Gulf of Aqaba that will provide a new source of drinking water for both Israel and Jordan.  In return Israel has agreed to sell an additional 30 million cubic meters of drinking water to Jordan each year.  Extremely salty “reject brine” created by the desalination process will then be shipped north through a 100-mile pipeline on the Jordan side of the border with Israel to the southern end of the Dead Sea where it will be discharged beginning in 2017.  This will help replenish a body of water whose level has shrunk by more than 80 feet in the last 50 years, causing large sinkholes to open up in the surrounding land (see blog post of March 16, 2013).  Friends of the Earth Middle East expressed concern about the environmental impact of the project.  A “mixing pool” dammed off from the rest of the Dead Sea is to be created at the sea’s southern end to monitor environmental impacts of the reject brine discharges. William Booth and Howard Schneider, New Project to Create Drinking Water from the Red Sea Will Also Boost Shrinking Dead Sea, N.Y. Times, Dec. 9, 2013.

On Monday December 9 eight northeastern states filed a petition with EPA asking it to impose new controls on pollution from coal-fired power plants in Ohio, Kentucky and Michigan.  The move may give EPA another vehicle for cracking down on interstate air pollution even if the U.S. Supreme Court upholds the D.C. Circuit’s decision striking down EPA’s Cross State Air Pollution Rule (CSAPR). On December 10 the U.S. Supreme Court heard oral argument in EPA v. EME Homer City Generation, EPA’s challenge to the D.C. Circuit’s decision. On December 5, five days before the oral argument, the Court on its own motion expanded the time allowed for the argument from one hour to ninety minutes.  This highly unusual move may have been motivated by the Justices realizing the complexity of the Clean Air Act during their preparations for the oral argument.  Five students from my Environmental Law class came down from Baltimore and observed the argument.  Several of my former students also were at the argument including Mary Raivel who worked on the case for the state of Maryland, Erica Zilioli from the Environment and Natural Resources Division of the U.S. Department of Justice, and Khushi Desai from Earthjustice.

Justice Samuel Alito, who normally is hostile toward environmental regulations, was not present at the argument because he recused himself from the case for undisclosed reasons.  His recusal is unlikely to make a difference in the outcome because a 4-4 split by the remaining eight Justices would affirm the D.C. Circuit’s decision striking down EPA’s rule.  At oral argument it appeared fairly clear that four Justices (Ginsburg, Breyer, Sotomayor and Kagan) support EPA’s rule.  Justice Scalia seemed to oppose the rule.  Thus, the outcome of the case is likely to turn on whether Chief Justice Roberts and Justice Kennedy join Justices Scalia and Thomas (who as usual said nothing during the argument) in affirming the D.C. Circuit’s decision striking down EPA’s rule. EPA is arguing that its more efficient policy of basing each state’s contribution to reducing interstate air pollution on where it can be done most cheaply is consistent with the Clean Air Act, a policy that even Justice Scalia seemed to agree made good sense, though he indicated that he thought it was inconsistent with the statute. 

While the CSAPR case was being argued in the Supreme Court on Dec. 10, a few blocks away the U.S. Court of Appeals for the D.C. Circuit was hearing oral argument in cases challenging EPA’s regulations to control emissions of mercury from power plants.  The panel of judges hearing the mercury case included Judges Merrick Garland and Judith Rogers, who generally are sympathetic to environmental regulation, and Judge Brett Kavanagh, the author of the decision striking down the CSAPR in the case reviewed by the Supreme Court.

EPA Administrator Gina McCarthy did not attend either of the oral arguments because she was visiting China. In Beijing she pressed the case for further U.S. cooperation with China on matters of air and water pollution.  While she was in Shanghai, Administrator McCarthy met with women prominent in the Chinese environmental movement at the Consul General’s residence.  The guests included environmental law professors and NGO and government environmental officials.  Professor Zhao Huiyu, who attended the event, told Administrator McCarthy that she had spent a year studying environmental law at Maryland.  Zhongzi Zhang from Roots and Shoots mentioned that I frequently bring students to China on environmental field trips (in 2014 I will be hosting them in March and August).  Jane Nishida, Acting Assistant EPA Administrator for the Office of International and Tribal Affairs, mentioned that the Maryland Environmental Law Clinic has sued EPA at times.

Sunday, December 8, 2013

Shanghai Pollution, Ecuador Closes Environmental Group, ALEC Summit, NRC Visit & Nelson Mandela (by Bob Percival)

Cities in eastern China, including Shanghai, were engulfed in severe air pollution last week.  One friend in Shanghai described the “smell of burning coal” pervading the city. On December 6 pollution became so severe that sporting events were canceled, schoolchildren were sent indoors and construction was halted.  Thirty percent of government vehicles were taken off the roads as PM2.5 levels reached 602.5 micrograms per cubic meter, far above the World Health Organization (WHO) recommended limit of 25.

The government of Ecuador shocked environmentalists on December 4 when it raided and closed the Quito offices of the Pachamama Foundation, a nonprofit group that opposes oil drilling in the Amazon.  The group, whose name means “Mother Earth” in  Quechua, worked with the Achuar indigenous population to protest an auction last week of 13 oil drilling concessions in Ecuador near the Peruvian border.  Ecuador President Rafael Correa denounced the group as a threat to public order.  The group has vowed to challenge its closure in the courts of Ecuador and to file a complaint with the InterAmerican Commission on Human Rights.

Last week the American Legislative Exchange Council (ALEC) held a three-day policy summit in Washington, D.C.  The group, heavily funded by contributions from the Koch brothers and other corporations, has been losing members and corporate sponsors after it was exposed as the driving force behind the widespread enactment of state “stand your ground” laws.  Some of its opponents claim that ALEC actually stands for “A Legislator for Every Corporation” because it is pushing a host of right wing initiatives to benefit corporate interests.  In 2014 ALEC plans to push state legislatures to adopt measures to gut state renewable energy standards, hand public lands over to oil and gas companies, preempt state and local laws requiring labeling of genetically modified products, and oppose EPA regulation of greenhouse gases.  Mariah Blake, What Kind of Crazy Anti-Environment Bills Is ALEC Pushing Now?, Grist, Dec. 6, 2013.  ALEC’s policy summit generated protests and a few scathing reviews, particularly after the press was barred from some of its meetings.  See Dana Milbank, ALEC Stands Its Ground, Washington Post, Dec. 6, 2013.

On Wednesday December 4 I gave a lecture on recent developments in administrative law at the Nuclear Regulatory Commission (NRC)  in Rockville.  The lecture, part of a series sponsored by the NRC’s Office of General Counsel, reviewed judicial decisions addressing the level of deference agencies should receive during judicial review, and questions of preemption and standing.  It was a fun experience for me because several of my former students are attorneys at the NRC and Margaret Doane, the agency’s general counsel, also is a Maryland Law graduate.  She previously served as the Director of the NRC's Office of International Programs and she emphasized the considerable efforts that are being made to improve global cooperation in ensuring the safety of nuclear power.  Among the other Maryland grads at the NRC who attended my lecture were Michelle Albert, Lisa Clark, Marcia Simon, Andrea (Curatola) Silvia, Esther Houseman and Tracey Stokes.  Several administrative law judges from the Atomic Safety and Licensing Board also attended the lecture.  Some of these are considered “science judges” because of their scientific or technical backgrounds, which is particularly useful considering the nature of the NRC’s work. When I again teach Administrative Law next fall I am hoping to arrange a field trip to the NRC so that the class can observe how adjudicatory hearings are conducted.  

The world is celebrating the remarkable life of Nelson Mandela, who passed away on December 5 at the age of 95.  In 1997 Mandela co-founded the Peace Parks Foundation that seeks to protect wildlife by creating protected areas along borders to allow animals to traverse national boundaries.  When South Africa hosted the 2002 World Summit on Sustainable Development in Johannesburg, Mandela delivered a speech entitled “No Water, No Future” arguing that the nations of the world should make access to clean water a human right.  In 2007 Mandela founded the Elders, a group of independent global leaders, chaired by former UN Secretary General Kofi Anan and former Norwegian Prime Minister Gro Harlem Brundtland, who have made climate justice one of their top priorities.

One of the great blessings of my life has been to have the kind of mother-in-law that one could only dream of.  Yesterday afternoon Mary Louise (Baldwin) Price, my mother-in-law, passed away in Towson, Maryland at the age of 88.  “Wesi” Price was the daughter of the late H. Streett Baldwin, a major political figure in Baltimore County during the 1930s and 1940s when he served as chair of the Baltimore County Commissioners and as a member of the U.S. Congress.  Wesi had a keen sense of social justice and always made me feel like a most welcome member of the family.  The world is a much better place as a result of her life. 

Sunday, December 1, 2013

Greening the Paper Industry, China Coal Consolidation, Methane Emissions Underestimated, NZ Offshore Drilling Protests, Student E-Law Films (by Bob Percival)

An unusual project by the European paper industry reportedly has developed breakthrough technology to reduce the industry’s environmental impact.  In 2012 the Confederation of European Paper Industries (CEPI), a trade association, launched the Two Team Project that brought together two teams of scientists and businesspeople, each of which developed four competing proposals for changing the way paper is made.  On November 27 a jury at the annual European Paper Week conference in Brussels chose as the winning proposal a method of using deep eutectic solvents to dissolve wood and separate lignins without the water- and energy-intensive processes currently used by the industry.  The new technology would reduce energy use by paper companies by 40%, slash the industry’s water use, and generate valuable raw materials for the production of high-value chemicals.  Much more work needs to be done to implement the technology, but industry executives described it as the greatest industrial breakthrough in decades.  “Roll on the Green Revolution,” The Economist, Nov. 30, 2013, at 66.

On November 28 China’s State Council proposed to encourage further consolidation of China’s coal industry by increasing the importance of large, state-owned coal companies.  The proposal reaffirmed the government’s edict gradually to shut down small coal mines producing less than 90,000 metric tons per year and to prohibit new projects with annual production of less than 300,000 tons per year. China currently uses 3.5 billion tons of coal per year - nearly half of all the world’s coal production - and it is expected to increase annual coal consumption to 4.8 billion tons by 2020.  In September 2013 the State Council conceded that it only will be able to reduce the country’s reliance on coal for energy production from the current 70% to 65% by 2017 (it previously had pledged to cut coal use to 60% of energy production by then).  The State Council also directed other agencies to stop local governments from imposing “haphazard” fees and taxes on coal production that may take 25-35% of the coal industry’s revenues.  Chuin-Wei Yap, Beijing Aims to Enlarge Role of State-Owned Coal Giants, Wall St. J., Nov. 29, 2013, at A12.

A study just published in the Proceedings of the National Academy of Sciences concludes that current EPA estimates of methane emissions from agriculture and oil and gas drilling in the U.S. are substantially below actual levels. Scott M. Miller, et al., Anthropogenic Emissions of Methane in the United States, at: http://www.pnas.org/content/early/2013/11/20/1314392110.abstract.  The study is significant because it relied on more than 12,000 actual measurements of methane emissions.  It found that emissions from fossil fuel extraction operations in Texas and Oklahoma may be 2.7 times higher than estimated.  Overall the study found that actual emissions of methane were approximately 1.5 times greater than EPA’s latest estimates.  This is particularly worrisome because methane is a potent greenhouse gas, more than 20 times more potent than carbon dioxide.                

New Zealand environmentalists are protesting the government’s expansion of offshore oil drilling.  Thousands of protesters gathered on 45 New Zealand beaches on November 23 and an Oil Free Seas Flotilla of protest vessels sailed 100 miles off the coast where Anadarko is about to conduct exploratory drilling.  In an effort to limit protests, the New Zealand Parliament in April 2013 passed a law banning protests that interfere with oil exploration and it banned protest vessels from coming within 500 meters of drilling vessels or offshore platforms.  In September 2013 the New Zealand government expanded the areas offered for offshore oil drilling, despite public concern raised by an October 2011 oil spill on a North Island beach caused by the grounding of a cargo vessel.  Environmentalists are concerned that the government and oil industry are not capable of containing a major oil spill, citing the scant efforts that were made to contain the 2011 spill.   

The U.S. Supreme Court has set a date for oral argument in its review of a portion of EPA’s greenhouse gas (GHG) regulations.  The consolidated cases challenging part of the D.C. Circuit’s June 2012 decision unanimously upholding the regulations will be heard at 10AM on Monday February 24, 2014.  The Court is expected to issue a decision in the cases before it adjourns for the summer at the end of June 2014.                                                                                                                                                                                                                                                                                                                                  
Continuing an annual tradition that began in 2002, students in my Environmental Law class have made short documentary films on environmental topics.  This year eight groups of students made films that were shown for the first time on November 25 in the University of Maryland Carey School of Law’s Ceremonial Moot Courtroom.  Two films focused on redevelopment of Baltimore brownfields sites.  Another examined the campaign to demonize Maryland’s stormwater remediation fee as a “rain tax.” Other films examined the silt buildup behind the Conowingo Dam, efforts to ban shark finning, Maryland’s community energy future and the lead poisoning problem.

Routledge has just published the book Trade, Health, and the Environment: The European Union Put to the Test as part of its Explorations in Environmental Studies series.  The book is edited by Professor Marjolein B.A. van Asselt, Chair in Risk Governance at Maastricht University, Michelle Everson, Professor of European Law at the University of London, and Ellen Vos, Professor of Euroepan Union Law at Maastricht University.  I contributed a chapter to the book on “Risk, Uncertainty and Precaution: Lessons from the History of U.S. Environmental Law.”  The book is a product of a conference held at the University of Maastricht in April 2010.