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.