Lima Agreement, Return from China, Cruden Confirmation, Oil Spill in Negev Desert, Letter to Post (by Bob Percival)

On December 15 representations from more than 190 nations meeting in Lima, Peru reached agreement on a blueprint for next year’s Paris COP-21 where it is expected that a new global climate change treaty will be adopted.  The agreement was reached only after the COP was extended for two days and its language was watered down somewhat.  But many observers believe that it is better than nothing and paves the way for more significant action in Paris next year.  A copy of the agreement “Further Advancing the Durban Platform” is available online at: http://unfccc.int/files/meetings/lima_dec_2014/in-session/application/pdf/cpl14.pdf

I returned from China on December 20.  On December 15 I gave a talk at Shanghai Institute of Politics and Law on “Using Law to Protect the Environment.”  Later in the week Professor Zhao and I had lunch with one of her former students who is now an official with the Shanghai Environmental Protection Board (EPB).  On December 17 Professor Shiguo Liu from Fudan University College of Law hosted me for dinner.

The environmental group Green Stone, who I visited in Nanjing last August during my field trip with the students from my Vermont class, caused quite a stir by posting the names of companies with excessive emissions.  They used data from the new reporting requirements that were mandated by the Chinese government last January.  Green Stone, which initially was founded by university students interested in getting students more active on environmental issues, demanded to know why the local EPBs were not taking enforcement action against these companies.  The Nanjing EPB apparently responded on social media that it would investigate.

Just before adjourning on Tuesday December 16, the U.S. Senate by voice vote confirmed Environmental Law Institute (ELI) President John Cruden to be the Assistant Attorney General for Environment and Natural Resources at the Department of Justice.  When Cruden was nominated by President Obama last February nearly 100 environmental law professors signed on to a letter to the Senate Judiciary Committee that I wrote supporting his confirmation. On Monday December 22, ELI held a farewell party for Cruden in the Presidential Suite at the Shoreham Hotel.  At this party I presented John with a resolution of appreciation from the Executive Committee of the American College of Environmental Lawyers (ACOEL).  Noting that the room in which the party was being held was where the Beatles had stayed during their initial visit to D.C., I called John the true “rock star” of environmental law.

Israel is scrambling to clean up a devastating oil spill in the ecologically fragile environment of the Negev Desert.  More than five million liters of crude oil spilled from the Trans Israel Pipeline operated by the Eiliat Ashkelon Pipeline Company (EAPC) earlier this month.  More than 80 people, mostly on the Jordanian side of the Israel/Jordan border, were treated for exposure to the oil and more 13,000 tons of contaminated soil were hauled away. Cleanup crews are working to prevent the spill from reaching the Gulf of Eliat. An Eliat resident has filed a class action lawsuit against EAPC seeking $55 million in damages and cleanup costs.  During spring break in March I will be taking a multi-disciplinary group of students to the Negev as part of a project to work on greywater recycling funded by a global public health grant.

On December 20 the Washington Post published a letter to the editor that I wrote, responding to Congressman Andy Harris’s defense of Congress trying to block D.C.’s voter initiative to legalize marijuana.  My letter is available online at: http://www.mapinc.org/drugnews/v14/n932/a05.html.  It reads as follows:  “How courageous of Republican Reps.  Andy Harris ( Md.  ) and Joe Pitts ( Pa.  ) to answer ‘head-on’ charges that it is hypocritical for proponents of self-government and democracy to overrule the District's marijuana initiative ["Congress's duty trumps D.C.'s vote," op-ed, Dec.  14].  The enormous flaw in their argument that federal interests should trump the will of District residents is that, unlike Mr.  Harris and Mr.  Pitts's constituents in Maryland and Pennsylvania, D.C.  residents have no voice in defining those federal interests because we have no voting representation in Congress. 

If they were men of courage and principle, they would follow in the footsteps of such Republicans as President Dwight D.  Eisenhower and Sen.  Prescott Bush ( father of one Republican president and grandfather of another ), who helped win ratification of the 23rd Amendment giving D.C.  residents the right to vote in presidential elections. d    Granting the District voting representation in Congress would make the incoming Republican majority truly a party of principle.  Until that happens, it is illegitimate for Mr.  Harris and Mr.  Pitts to claim that the will of D.C.  residents should be trumped by a federal interest we are not allowed a voice in defining.” 

In a few hours I am leaving for a National Geographic expedition in Antarctica.  My wife Barbara and I are flying to Buenos Aires today.  On Sunday we will board a charter flight to Ushaia, a place we visited on our honeymoon to Patagonia 30 years ago.  We then will board the Linblad Orion which will sail to the Falkland Islands, South Georgia Island, and then on to Antarctica.  Barbara and I will be celebrating our 30th wedding anniversary on South Georgia Island, where Ernest Shackleton is buried, on January 5.  Before returning to the U.S. on January 24, we also will visit Easter Island, a place I visited in 1973 while sailing around the world prior to starting law school. 

Dec. 13 Blog Post: China Trip, Wall Street Journal Letter, Oil Price Plunge (by Bob Percival)

I posted the following on my parallel blog (globalenvironmentallaw.com) on Saturday Dec. 13.  I was unable to post on this blog at the time because I was in China where the government's "great firewall" blocks Blogspot, which is the reason I maintain two parallel blogs.

Last week I flew to Zhengzhou, China, capital of Henan Province, to give some lectures on environmental law.  Prior to leaving Shanghai I participated in two classes at New York University’s Shanghai Center in Pudong on December 8.  The classes included both students from NYU and from East China Normal University.  One class focused on environmental law and the other on cultural influences on legal systems.  Students in each class are engaged in some really interesting research projects that explore comparative aspects of law in China and the U.S.

When I landed at the Zhengzhou Airport on December 9 I was greeted by Professor Xiao Qian Gang, one of the fathers of Chinese water and natural resources law who was involved in drafting landmark legislation on these subjects during the 1970s.  Professor Xiao is now 80 years old, but he has amazing energy and we spent three days exploring Henan Province together.  On the way into Zhengzhou we stopped at the Foxconn plant near the airport where Apple’s iPhones are made.  The complex is gigantic with eight enormous buildings covering the size of a small city.  My hosts thought that 100,000 workers work in the complex, but the plant personnel said that it was closer to 200,000.  During my lectures, I told my audiences that my iPhone was excited to return to the place of its birth.

On the evening of December 9 I gave a lecture to approximately 100 law students at Zhengzhou University.  The law school emphasizes environmental law and one of their professors had used my casebook while studying in the United States.  The students treated me like a rock star, asking me to pose for photos with them and taking selfies (‘su pi”s in Chinese) with me - a few even asked me for my autograph after the lecture.  

On December 10 my hosts took me to the Shaolin Temple, the birthplace of martial arts, which is located about a 90-minute drive from Zhengzhou at Shaoshi Mountain in Dengfeng.  It had snowed lightly the night before and a sheet of ice covered the trails.  The monastery mobilized the martial arts students to remove the ice with sticks and brooms to make hiking less periolous. We hiked a considerable distance exploring the sprawling complex and watched a kung fu demonstration.  We then drove to the town of LuYuan for lunch followed by a trip to the spectacular Longmen Grottos.  The Longmen Grottos are where approximately 20,000 buddha statues have been carved into rock cliffs along the banks of the Yi River.  We hiked up into the cliffs to see the carvings.  Photos from the trip will be placed in the Photo Album portion of this website shortly.

On December 11 we traveled to the town of Kaifeng, the capital of China during the Song Dynasty in east-central Henan Province.  Kaifeng is believed to have been the largest city in the world exactly 1000 years ago.  In the morning we visited Millenium City Park and the Xuande Palace, home of the Chinese emperors during the Song Dynasty.   After lunch we visited a Song Dynasty theme park where we witnessed the reenacted of an ancient battle with warriors, including a female general, on horseback.

On Friday December 12 I gave a 90-minute lecture on environmental law at the Henan University of Economics and Law.  There were approximately 250 students in the audience.  Most of them did not speak English, but the translation was excellent.  During the question and answer session one student stood up and asked a question that she had written out in English.  When I complimented her in Chinese and said I wish my Chinese was as good as her English, the students all applauded her.  Her question concerned the perceived tradeoff between economic growth and environmental regulation in China.  In response I cited several examples of instances where economists had forecast doom from environmental regulation only to be proven wrong.  While it its true that regulation creates winners and losers and the coal industry is losing throughout the world right now, renewable energy projects are a source of economic opportunity. In my discussions with Chinese students it seems clear that China’s environmental problems are a big concern to them, but they seem encouraged by the Chinese governments willingness to endorse the new U.S./China climate agreement.

I flew back to Shanghai on Friday night.  On Saturday morning December 13 I spoke about the U.S. Supreme Court to a class of Chinese lawyers who are enrolled in Emory University’s Comparative Law Program at Shanghai Jiaotong University.  The students in the class, most of whom work for law firms in Shanghai, will be spending the spring semester at Emory in Atlanta. Many of them then plan to stay in Atlanta to receive the LLM degree from Emory.  After the class the students took the professor, Dan Guttman, and I out to lunch at a nearby restaurant.

In Lima, Peru the Conference of the Parties to the UN Framework Convention on Climate Change has gone into overtime as negotiators struggle to bridge a divide over loss and damage and contributions to a green climate fund to compensate developing countries.  The contours of a likely agreement that could be signed next year in Paris have become clear and they look much like an extension of the Copenhagen Accord that relies on voluntary commitments from each country.  

David Doniger of NRDC and I had letters to the editor published in the Wall Street Journal of December 13-14.  Our letters criticized Harvard Law professor Laurence Tribe’s claim on behalf of Peabody Energy that EPA’s Clean Power Plan is illegal and unconstitutional.  My letter notes that Tribe frequently has made extreme constitutional claims against EPA on behalf of industry groups, but no court has agreed with him.  The letters are available online at: http://www.wsj.com/articles/prof-tribe-may-not-get-very-far-on-his-epa-brief-letters-to-the-editor-1418421985.

In other news last week: 

On December 11 the Supreme Court of Canada heard oral argument on the question whether plaintiffs can enforce a $9 billion judgment by an Ecuadoran court against Chevron for oil pollution in Ecuador.  

An oil spill in a protected wetlands area in Bangladesh that occurred when a ship sunk has led environmentalists to criticize the fact that commercial ship traffic is allowed at all in the area.  

China opened a key section of its massive south-to-north water project running 860 miles from the Danjiangkou Reservoir in Hubei Province to supply 9.5 billion cubic meters of water a year to northern China.  Water from the first stage of the $80 billion project was barely usable when it reached Tianjin last year because it had picked up so many pollutants while traveling north. 

Global oil prices continued to collapse last week with crude oil prices plunging below $60 a barrel.  Chinese authorities are seizing the opportunity to cut fuel subsidies, a move that other countries should emulate.  If the petroleum price stabilization tax that I advocated during my presentation to the IUCN Academy of Environmental Law Colloquium last summer in Tarragona had been in effect, plunging oil prices would not harm renewable energy projects, but rather would only cut government deficits.

The budget deal that the U.S. Congress approved last week apparently bars the Export-Import Bank from eliminating loan guarantees for fossil fuel projects in other countries.

Tomorrow morning I am giving a lecture at the Shanghai College of Politics and Law.  I will be spending a good part of the week grading my Environmental Law exams, which should arrive by Fedex tomorrow.  I fly back to Beijing on Friday and then back to Washington on Saturday.

Dec. 6 Blog Post: China Trip, Lima Climate Talks, EPA Ozone Proposal (by Bob Percival)

The following was posted on my globalenvironmentallaw.com site on Saturday Dec. 6.  I was unable to post on this blog because the Chinese government's "great firewall" blocks Blogspot.

I have been in China for the past week where I am finishing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  I arrived in Beijing on Saturday to some of the worst air pollution I had ever seen in China.  It was not even possible to see Terminal 3 from the runway and it only appeared when the plane pulled into the gate.  Rains Saturday night combined with extraordinarily high winds (which killed some people in Beijing when materials blew off a building under construction) cleared out the air on Sunday.  On Monday I flew to Shanghai where I am staying at the Faculty Club on Shanghai Jiaotong’s Xuhai campus where I have a temporary office at the KoGuan Law School.

On Wednesday Dec. 3 I delivered a lecture on the topic “Is Divided Government Dysfunctional?” The lecture was held at the suburban undergraduate campus of Shanghai Jiaotong.  My hosts had asked me as a constitutional law professor to address a broader topic than environmental law in order to appeal to students from several departments.  It seemed to work because I had a large audience of students from many disciplines, including several electrical engineering students.  In my lecture I reviewed the history of divided government in the U.S.  I noted that, counting the new Congress, the same political party will have controlled the Presidency and both houses of Congress only twice (1993-1995 and 2009-2011) in the 18 most recent sessions of Congress and only four times (adding the post-Watergate Congresses of 1977-1981) in the last 24.  I then reviewed the history of government shutdowns and budget battles between the President and Congress as a possible preview to the kinds of battles that will occur between President Obama and the new Republican Congress.  I raised the question whether some of the problems enforcing China’s laws might be due to the fact that they are not the product of the kind of hard fought compromises with the regulated community. After lecturing for 90 minutes, I had a lively discussion with the students during a half hour question and answer session.  After the session was over a large group of students approached me and we spoke for another 30 minutes.  It is such a privilege to get to engage with bright young Chinese students who are concerned about the future of government.

On Friday Dec. 5 I visited the DeTao Academy on the campus of the Shanghai Institute of Visual Arts in the southwest suburbs of Shanghai. I have been appointed as one of DeTao’s “masters,” the only one who specializes in law.  I contributed copies of my Environmental Regulation casebook and Statutory and Case Supplement to the DeTao Library and was given briefings on various environmental projects DeTao is pursuing.  I met with the staff of DeTao master Kevin Erwin who are working on a large wetlands restoration project on Hainan Island.  They noted that China does not have a national wetlands protect law and thus there is less impetus for wetlands mitigation and banking projects in China than in the U.S.  I also met with officials from DeTao’s Institute for Green Investment who are working with DeTao master Bob Costanza to develop the first “natural capital balance sheet” for the mayor of Sanya, the principal tourist destination in Hainan Province.

This week the nations of the world have been meeting in Lima, Peru for the 20th Conference of the Parties to the UN Framework Convention on Climate Change and the 10th Meeting of the Parties to the Kyoto Protocol (COP-20/CMP-10).  It is hoped that this conference will lay the groundwork for a new global agreement in Paris next year to control emissions of greenhouse gases (GHG).  Here in China there is considerable discussion of the historic U.S./China climate agreement that was announced last month.  Many note that China’s commitment to cap its GHG emissions by 2030 reflects what many Chinese officials had been hinting at over the years, though they acknowledge that China’s emissions currently are rising so rapidly that it will take dramatic changes to achieve the goal. They do give the U.S. credit for pushing environmental initiatives (specifically the phaseout of HFCs) at President Obama’s first summit with Chinese President Xi Jinping in June 2013.  This and commitments for technological collaboration on carbon capture helped cement the new agreement. 

On November 25 EPA proposed new regulations to lower the national ambient air quality standard (NAAQS) for ground-level ozone.  The agency proposed to lower the current standard for ozone from 75 parts per billion (ppb) to a range between 65 and 70 ppb.  Former EPA Administrator Lisa Jackson had sought to make a similar proposal in 2011, but it was blocked by opposition from President Obama and the Office of Management and Budget.  EPA is required to review and revise, if necessary, the NAAQS every five years, a deadline that expired in 2013 for the ozone NAAQS.  The agency released its ozone proposal shortly in advance of a court-ordered deadline.

On Saturday I was presented with copies of my new treatise on Environmental Law that has been published in Chinese by Law Press of China.  I began work on the treatise as a project for the Federal Judicial Center in the U.S., a project that is still incomplete.

Today I will participate in two classes for NYU’s Shanghai program. Tomorrow I will fly to Zhengzhou, the capital of Henan Province, to deliver a series of lectures.  My hosts have promised also to take me to the famous Shaolin Temple, the birthplace of martial arts.

Montreal Protocol Talks Focus on HFCs, Supreme Court to Hear MATS Cases, Macalester Visit, China Trip (by Bob Percival)

Representatives from more than 100 countries who are parties to the Montreal Protocol on Substances that Deplete the Ozone Layer met in Paris from November17- 21, 2014 for their 26th Meeting of the Parties (MOP).  The meetings focused largely on efforts to expand the Protocol to phase out hydrofluorocarbons (HFCs), substances that are potent greenhouse gases.  Because many substances that deplete the ozone layer also are greenhouse gases, the Montreal Protocol, adopted in 1987, actually has been responsible for reducing more GHG emissions than the Kyoto Protocol.  Most countries now agree that it would be wise to use the Montreal Protocol to phase out HFCs.  Although China and India previously had been obstacles to reaching agreement on this issue, they have agreed to support such an initiative, in part due to personal diplomacy by President Obama in meetings with Chinese President Xi Jinping and Indian Prime Minister Narendra Modi during the last 18 months.  David Doniger, director of NRDC’s climate program who attended the Paris meetings, reports that the delegation from Saudi Arabia was the largest obstacle to reaching an agreement, perhaps as part of a larger strategy to stall global climate negotiations (http://switchboard.nrdc.org/blogs/ddoniger/countries_accelerate_talks_on.html).  Agreement was reached in Paris to accelerate the negotiations on HFCs in hopes that a final agrement can be reached at MOP-27 next November, just prior to the crucial climate talks scheduled for Paris in December 2015.

On November 25 the U.S. Supreme Court announced that it had agreed to review the D.C. Circuit’s decision upholding EPA’s regulation of mercury and air toxics (MATS) from power plants as hazardous air pollutants under Section 112 of the Clean Air Act.  The decision was not a surprise because the Court announced on November 17 that it had relisted the petitions for a second conference after considering them at conference on November 14.  I had learned from good authority that the Court has a new, unannounced rule that it ordinarily will not grant cert until it has considered a petition at more than one conference of the Justices.  This rule apparently is a response to the Court discovering in the past that some cases they agreed to review did not actually present the questions the Justices initially thought they did.  Although some observers expressed surprise when the Supreme Court announced that it had relisted the petitions for a second conference, it confirmed for me that the Court was likely to review them.  The Court granted review on a question it framed as: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”  The consolidated cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA and National Mining Association v. EPA.  At the two Supreme Court preview programs ELI President John Cruden and I presented last month, we predicted that these were the environmental cases the Court was most likely to take, though I hoped the Court would deny review.  Some utility executives interviewed by the press indicated that they may suspend their orders for new pollution control equipment pending the Court’s decision in the case.

On November 20 and 21 I visited Macalester College’s Environmental Studies Program along with my former colleague Bruce Rich, former director of international programs for the Environmental Defense Fund.  I introduced Bruce at a campus-wide lecture on November 20 and then attended a program where he spoke at the Institute for Agriculture and Trade Policy.  Both of Bruce’s lectures focused on the environmental consequences of World Bank policy.  On November 21 I participated in a luncheon of Macalester students interested in applying for a summer Global Environmental Justice fellowship.  In the afternoon I gave a lecture on climate change and the new U.S./China agreement to an environmental studies class at Macalester.  I continue to be really impressed with Macalester’s interdisciplinary Environmental Studies Program and the quality of the students who have enrolled in it.

I hope everyone had a happy Thanksgiving.  In a few hours I am leaving for China, my fourth trip of the year to that country.  I will be completing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  On December 3 I am scheduled to give a campus-wide lecture on “Is Divided Government Dysfunctional?” As is usual during my China trips, I do not expect to be able to post blog entries on this website because Blogspot is blocked by China's Great Firewall.  I will be blogging on my parallel blog at: www.globalenvironmentallaw.com.  I will be returning to the U.S. on December 20.  

Historic US/China Climate Agreement, Japan Reactor Restart Approved, Yates Oral Argument, IUCN World Parks Congress, IFC Adopts Levi's TOE (by Bob Percival)

On November 12 President Obama and Chinese President Xi Jinping announced that they had reached a historic agreement on reducing emissions of greenhouse gases (GHGs) in the U.S. and China. The text of the joint announcementis available online at: http://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change. Under the agreement the U.S. pledges to reduce its GHG emissions by between 26 and 28% over 2005 levels by the year 2025.  China pledges to cap its GHG emissions as soon as possible, but no later than 2030.  Both countries pledge to work together to speed the development of new technologies to accelerate controls on GHG emissions.

Incoming Senate majority leader Mitch McConnell quickly criticized the agreement, claiming that “it requires the Chinese to do nothing at all for 16 years while these carbon emission regulations are creating havoc in my state and other states around the country.”  But 2030 is the final compliance date for both China’s new commitment and EPA’s Clean Power Plan. To meet its commitment to cap its rapidly rising emissions by then China must launch a variety of GHG control initiatives now, just as EPA is trying to launch its Clean Power Plan.  

The subject of the U.S./China agreement came up during a presentation I made at the 2014 Federalist Society National Lawyers Convention on November 15 on a panel on “Do EPA’s CO2 Rules Go Too Far.”  The panel was moderated by Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit.  Also on the panel were former EPA Deputy Administrator Robert M. Sussman, Paul Bailey from the American Coalition for Clean Coal Electricity, and Elbert Lin, the Solicitor General of West Virginia.  Video of the presentation is available online at https://www.youtube.com/watch?v=N7Iye7WYxtY&feature=youtu.be.  I noted that China’s plans are even more far-reaching than EPA’s in several respects because China plans to convert its seven pilot carbon trading programs into a nationwide program, China has a national portfolio standard that it will strengthen to generate 20% of its energy from renewable sources by 2030, and China is starting explicitly to restrict the use of coal.  In my presentation I also discussed the legal issues raised by EPA’s Clean Power Plan.  These include EPA’s unquestioned authority to regulate GHG emissions under the Clean Air Act (CAA), the premature lawsuits seeking to stop the rulemaking, the conflicting versions of §111(d) adopted by Congress in 1990, and why EPA’s interpretation of “best system of emissions reduction” (BSER) is permissible under the Act. I also noted that the CAA has generated more benefits than any other environmental statute because policymakers rejected exaggerated claims about the prospective costs of regulation that have been made at every significant juncture in its history.

The U.S./China climate agreement is truly historic.  It represents the first time China has committed to cap its emissions of GHGs, a daunting task given China’s rapid economic growth.  Because China and the U.S. are the two largest sources of current GHG emissions, it greatly increases the chances of a global GHG reduction agreement being reached in Paris at the end of next year (both countries state they are “committed to reaching an ambitious 2015 agreement that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances.”)  It also counters what has long been the chief excuse for inaction by the opponents of domestic controls on GHG emissions.  Tom Toles eloquently summed this up in a cartoon that appeared in the Washington Post with an elephant telling uncle Sam “We shouldn’t cut our carbon emissions because China won’t cut theirs.”  Uncle Sam replies, “They just agreed to cut theirs!”  The elephant then replies, “We shouldn’t cut ours for some other reason.”

The midterm election on November 4 resulted in the Republican Party acquiring a majority in the U.S. Senate, given them control of both houses of Congress.  State initiatives to require labeling of products that contain genetically modified organisms (GMOs) were defeated in Oregon (by 50.5-49.5%) and in Colorado (by 65.7-34.3%), leaving Vermont as the only state with such a law. 

On November 7 Kagishima prefecture in Japan approved the restart of two nuclear reactors at the Sendai nuclear powerplant.  The decision is considered a victory for Prime Minister Shinzo Abe’s government which is seeking to restart nuclear powerplants closed in the wake of the Fukushima Daiichi disaster, despite strong public opposition.  If these reactors are restarted early next year they will be the first of the country’s 48 nuclear powerplants to generate electricty since the March 2011 disaster when all were taken offline.

On November 5 some of the students in my Environmental Law class came to the Supreme Court with me to watch the oral argument in Yates v. U.S.  The case involves the application of the Sarbanes-Oxley legislation’s ban on destruction of evidence to a commercial fisherman who was caught in federal waters with undersize red grouper.  The legal question is whether a fish is a “tangible object” whose destruction is prohibited when it impedes an investigation, as the conservative judges in the lower court held. The fisherman received a sentence of only 30 days in jail, but Justices Scalia and Alito expressed outrage that he potentially could have been given a 20 year term.  When the lawyer for the Solicitor General pointed out that the fisherman has disobeyed an explicit instruction to preserve evidence “and then launched a convoluted cover-up scheme to coverup the fact that he had destroyed the evidence,” Chief Justice Roberts responded, “You make him sound like a mob boss or something.”  It was hard not to come away from the argument with the impression that because it was federal fisheries laws that were being enforced, several Justices did not take the crime of destruction of evidence as seriously.  In an editorial supporting the convicted fisherman, the Wall Street Journal bizarrely asserted that the law could bar a company from cleaning up a chemical spill because it would be destroying evidence. “For Want of a Grouper,” Wall Street Journal, Nov. 6, 2014.

The once-a-decade IUCN World Parks Congress convened in Sydney, Australia this week. The theme of the 2014 Congress is “Parks, People, Planet: Inspiring Solutions.” The opening plenary session was held on November 13.  The conference will run through November 19.  At the conference, Google unveiled a new app to make it easier to track illegal fishing activities. Developed in conjunction with Oceana and SkyTruth, the app will make it easier to track the movements of thousands of fishing vessels using data points from the Automatic Identification System network that maps a vessel’s location using GPS technology.  Another side event at the Parks Congress was the first meeting of a group of experts convened by Australia’s The Places You Love Alliance.  The group will seek to develop proposals for improving Australia’s environmental laws.  I am one of two foreign experts appointed to the panel and I briefly participated in the opening meeting by Skype.

On November 4 the International Finance Corporation, part of the World Bank Group, announced that it was working with the Levi Strauss Corporation to provide financial incentives to suppliers in developing countries to upgrade their environmental, safety, and labor standards. The IFC Global Trade Supplier Finance (GTSF) program will provide lower cost financing to garment suppliers who score highly on Levi’s Terms of Engagement (TOE) assessments.  Levi Strauss pioneered environmental and social assessments of suppliers in 1991 when it launched its TOE program.

On November 14 the University of Maryland Carey School of Law’s Environmental Law Program held its annual Fedder Lecture and Winetasting.  More than 100 alums joined Maryland’s faculty and students for the event.  This year’s Fedder Lecture was deliver by David Doniger, director of clean air and climate programs for the Natural Resources Defense Council.  The topic of his lecture was “Paths Forward on Climate: What’s Worked So Far and What’s Next.”  Doniger expressed optimism that the new U.S./China agreement will increase the chances for successful negotiation of a new global climate treaty in Paris at the end of next year.

IPCC Warns of "Irreversible" Impacts of Climate Change, EU Agrees on GHG Targets, China's "Rule of Law" Plenum, Penn Conference, Kunming Delegation (by Bob Percival)

At a meeting in Copenhagen the Intergovernmental Panel on Climate Change (IPCC) released its final synthesis report describing the conclusions of the various reports generated by its Fifth Assessment of the problems of global warming and climate change. In a press release issued today, the IPCC stated “human influence on the climate system is clear and growing with impacts observed on all continents.” The IPCC concluded that “if left unchecked, climate change will increase the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.” More than 830 scientists from 80 countries played significant roles in the development of the Fifth Assessment reports.  They reviewed more than 30,000 scientific papers to produce the most comprehensive assessment of climate change ever issued. Thomas Stocker, co-chair of IPCC Working Group I, notes that “the assessment finds that atmosphere and oceans have warmed, the amount of snow and ice has diminished, sea level has risen and the concentration of carbon dioxide has increased to a level unprecedented in at least the last 800,000 years.” The synthesis report concludes that “stringent mitigation activities can ensure that the impacts of climate change remain within a manageable range.” 

On October 21 I attended the Environmental Law Institute’s annual dinner in Washington, D.C. Hundreds of environmental lawyers showed up, filling the ballroom of the Shoreham Hotel.  ELI President John Cruden presented the Institute’s annual award to Mary Nichols, chair of the California Air Resources Board, and the state of California for their leadership in developing innovative environmental protection measures.  California Representative Henry Waxman, who is retiring from Congress, gave a wonderful talk that touched on the history of California’s role as an environmental pioneer.  It was great to see so many of my former students at the event and to get to introduce some of them to Mary Nichols.

On October 23 leaders of 28 European Union countries agreed to reduce EU emissions of greenhouse gases (GHGs) by 40 percent from 1990 levels by the year 2030. This represented the first commitment by a major bloc of countries in advance of the crucial summit to be held in Paris at the end of next year to adopt a successor to the Kyoto Protocol. The EU agreed on a goal of increasing the percentage of energy generated by renewable sources to 27 percent and on a largely hortatory goal of improving the energy efficiency of its economies by 27 percent. Sweden and Germany reportedly had sought more ambitious targets, but were pressured by Poland and other eastern EU countries to soften them.

On October 23 the Fourth Plenary Session of the 18th Central Committee of the Chinese Communist Party approved its much-anticipated rule of law document.  The report states that the Party “must comprehensively move ruling the country according to the law forward” in order to  develop “Socialism with Chinese characteristics,” to “realize the modernization of the national governing system and governing ability” and to promote “the people’s welfare, peace and health.” Throught the report emphasis is placed on the overriding importance of maintaining the Communist Party’s leadership of China.  In a section entitled “Strengthen Legislation in Focus Areas” one paragraph advocates strengthening environmental protection as follows: “Use strict legal structures to protect the ecological environment, accelerate the establishment of ecological civilization law structures to effectively restrain exploitative behaviour and stimulate green development, recycling development and low-carbon development, strengthen the legal liability of producers for environmental protection, substantially raise the costs of violating the law. Build and complete legal structures for property rights over natural assets, perfect legal structures in the area of State land exploitation and protection, formulate and perfect laws and regulations for ecological compensation, the prevention of soil, water and air pollution and the protection of the maritime ecological environment, to stimulate the construction of an ecological civilization.”

On October 24 I participated in a conference at the University of Pennsylvania Law School on the use of films in legal advocacy.  The conference was organized by Professor Regina Austin, Director of the Program on Documentaries & the Law at Penn, and Professor Daniel Kiel from the University of Memphis School of Law.  The conference was attended by approximately twenty professors and several students from fifteen schools including Penn, Maryland, Yale, Harvard, Georgetown, Miami, Chicago-Kent, Kentucky, Florida A & M,  New York Law School and others.  I spoke on the opening panel and described how students in my Environmental Law class have made films each year since 2002.  Over the years my students have made approximately 100 films; 70 are on display online at:  http://digitalcommons.law.umaryland.edu/envirofilms/.  It was interesting to see the different ways in which film is being used in law school classes.  The participants expressed interest in making the event an annual gathering and possibly hosting a law student film festival in the future.

On October 28 I attended the 25th anniversary celebration of the Center for International Environmental Law (CIEL) at the U.S. Botanical Gardens.  At the event CIEL presented its International Environmental Award to Professor Philip Allott of Trinity College, Cambridge, and its Frederick R. Anderson Award for Outstanding Achievement in Addressing Climate Change to former NASA scientist James Hansen.  It was great at the event to get a chance to catch up with Philippine environmentalist Tony Oposa, who is spending the fall semester visiting at Pace University Law School and who will be visiting at the University of Hawaii Law School next spring.

On October 29 I spoke to a group of environmental official from Yunnan Province in China who are participating in the Kunming Institute of Environmental Science Executive Education program sponsored by the Maryland China Initiative at the University of Maryland College Park (UMCP). I gave a total of four hours of lectures on U.S. environmental problems and the development of U.S. environmental law.  UMCP’s Maryland China Initiative is one of only two entities in the U.S. officially approved by China’s State Council to held train Chinese officials (the other is the John F. Kennedy School of Government at Harvard University).

ACOEL Annual Meeting, Islanders Protest Australian Coal, India Ends Diesel Subsidy as Global Oil Prices Plummet, Exxon & Shell Increase Carbon Footprint Despite Production Drop, Beijing Marathon (by Bob Percival)

On Thursday October 16 I flew to Austin, Texas to participate in the annual meeting of the American College of Environmental Lawyers (ACOEL).  The group is an organization of environmental lawyers whose membership is elected and capped at 250.  The vast majority of the members work for law firms, but there are some academics and lawyers for government agencies or NGOs as well.  On Friday October 17 EPA General Counsel Avi Garbow gave the keynote address to the group.  He noted that he had recently visited China where he had the honor of presenting a medal to the U.S. Foreign Service officer in the Beijing Embassy who had been responsible for creating a Twitter feed providing real time data on levels of particulate matter (PM).  The public interest generated by this development helped spur the Chinese government to establish an air quality standard for PM 2.5. Garbow also stated that he had visited Ma Jun whose Institute of Public and Environmental Affairs has launched an app that allows the Chinese public to obtain pollution data on their smart phones.  Garbow noted that EPA’s has a “My Green Apps” webpage (http://www.epa.gov/mygreenapps/), though a quick visit to it indicates that EPA is no longer updating the page to list new environmental information apps.

On Saturday October 18 John Cruden, the president of ELI, and I gave a presentation to ACOEL on “Cases of the Year: Environmental Law in the Supreme Court.”  We reviewed the Court’s three major environmental decisions last year: EME Homer City, which upheld EPA’s air transport rule to control interstate air pollution, Utility Air Regulatory Group, which largely upheld EPA’s regulation of greenhouse gases for sources that require PSD permits, and CTS v. Waldburger, which held that CERCLA § 309 imposes a federal discovery rule that tolls only state statutes of limitations and not statutes of repose.  The Supreme Court has not yet agreed to hear any significant environmental cases this Term, but we discussed four cases the Court will hear that may have some implications for environmental law.  We also reviewed some cert petitions that are before the Court and agreed that EPA’s mercury and air toxics (MATS) rule is the most likely candidate for Supreme Court review this Term.

On October 17 a group of protesters from South Pacific islands blocked the port of Newcastle, Australia to protest coal exports that contribute to climate change.  The protest, organized by the group 350.org, targeted Austrlian Prime Minister Tony Abbott’s efforts to expand Australian coal exports. The Australian government has repealed coal and carbon taxes while approving new ports for coal exports.  Last week the Australian government criticized a decision by Australian National University to divest assets held in fossil fuel companies.  The Australian think tank Australian Institute responded with an open letter signed by prominent Australians, including former conservative prime minister Malcolm Fraser defending the university.   Jamie Smyth, Green Groups Take Aim at Champions of Australia’s Burgeoning Coal Industry, Financial Times, Oct. 18-19, 2014, at 4.

During the past month there has been a sharp decline in oil prices from over $100 per barrel to nearly $80.  Taking advantage of this surprising drop, Indian Prime Minister Narendra Modi has just ordered an end to government subsidies on the price of diesel fuel, while raising the regulated price of natural gas by one-third. The diesel oil subsidies cost the Indian government $23 billion last year. James Crabtree, Modi Ends Diesel Subsidy and Continues Reform Drive, Financial Times, Oct. 20, 2014, at 4. Another benefit from the plunge in global oil prices is that it has intensified the economic pain of sanctions on the Russian government.  Thomas Friedman, A Pump War, New York Times, Oct. 15, 2014. A critic of green energy who has a regular column on the editorial pages of the Wall Street Journal expressed glee that lower oil prices would reduce investments in renewable energy. Holman Jenkins, Cheap Oil Pops the Green Policy Bubble, Wall Street Journal, Oct. 15, 2014.  

The Carbon Disclosure Project reported last week that both Exxon Mobil and Royal Dutch Shell increased their greenhouse gas emissions last year despite producing less oil. Daniel Gilbert, Wall Street Journal.  The carbon intensity of their oil production (GHG emissions per barrel of oil produced) has increased ten percent since 2011. The increased carbon intensity of their production is attributed to the increasing difficulty of extracting oil from more remote sources. By contrast, Chevron and BP have slightly reduced the carbon intensity of their production since 2011.

On Sunday October 19 the 34th Beijing International Marathon was run despite severe air pollution in China’s capital.  Chinese authorities rated Beijing’s air as “heavily polluted,” a level that comes with a warning to avoid outdoor activity.  Many runners wore masks or used wet sponges in the race.  Girmay Birhanu Gebru of Ethiopia won the men’s race, while his fellow countryman Fatuma Sado won the women’s.

The midterm elections are rapidly approaching in the U.S. with control of the U.S. Senate hanging in the balance.  One candidate who currently is leading in the polls in my home state of Iowa wants to abolish the U.S. Environmental Protection Agency, an issue that was front and center during a candidates’ debate on Oct. 11.  Republican candidate Joni Ernst argued that the state of Iowa could do a better job of protecting the environment if EPA were abolished.  

Modi and Obama Agree on Climate Initiatives, Half of Planet's Wildlife Lost in 40 Years, ELI Program on Supreme Court and the Environment, China Presentation (by Bob Percival)

Among the many issues discussed last week at the first meeting between U.S. President Barack Obama and Indian Prime Minister Narendra Modi was the importance of working together to combat global warming and climate change.  Following their meeting at the White House on September 30, Premier Modi stated that climate change was a priority for both the U.S. and Indian governments. In a joint statement released by the leaders after their meetings,they announced agreement “a new and enhanced strategic partnership on energy security, clean energy, and climate change.”  This agreement includes expanding the U.S.-India Partnership to Advance Clean Energy (PACE) through “a new Energy Smart Cities Partnership to promote efficient urban energy infrastructure, a new program to scale-up renewable energy integration into India’s power grid, cooperation to support India’s efforts to upgrade its alternative energy institutes and to develop new innovation centers, an expansion of the Promoting Energy Access through Clean Energy (PEACE) program to unlock additional private sector investment and accelerate the deployment of cost-effective, super-efficient appliances, and the formation of a new Clean Energy Finance Forum to promote investment and trade in clean energy projects.“ They agreed to work together toward reducing production and consumption of hydrofluorocarbons (HFCs), which are potent greenhouse gases, under the Montreal Protocol on Substances that Deplete the Ozone Layer. The leaders also expressed their commitment to concluding a successful new global agreement on climate change at the Conference of the Parties to the UN Framework Convention in Paris in December 2015.

In its 2014 Living Planet Report released on September 30, the World Wildlife Fund estimated that the total population of vertebrates on the planet has declined by 52 percent between 1970 and 2010.  Two years ago WWF reported a 28 percent decline in the numbers of these animals had occurred between 1970 and 2008.  The new numbers in the report, which is available online at http://wwf.panda.org/about_our_earth/all_publications/living_planet_report/, are based in part on a recalculation of the previous data.  The WWF report also estimates that current resource consumption by humans exceeds the carrying capacity of the planet by approximately 50 percent so that it would take one and one-half earth’s to make current human consumption patterns sustainable.

On October 1 I was a panelist on a “Supreme Court Review and Preview” program at the Environmental Law Institute in Washington.  The other panelist was former EPA general counsel E. Donald Elliott, a private practitioner who teaches environmental law at Yale Law School.  We reviewed the three major environmental decisions by the Supreme Court last term - EME Homer City (upholding EPA’s transport rule for controlling interstate air pollution), Utility Air Regulatory Group v. EPA (upholding a major part of EPA’s program to regulate greenhouse gas emissions), and CTS v. Waldburger (holding that §309 of CERCLA’s preemption of state statutes of limitations does not preempt state statutes of repose).  We then discussed the upcoming Supreme Court Term, which officially opened today.  As I predicted during the program, the Court announced today that it will not hear a challenge to EPA’s national ambient air quality standard for ozone.  The Court has not yet agreed to hear any major environmental cases during its OT 2014 Term.  Don and I agreed that the most likely candidate for such a case is a challenge to EPA’s mercury and air toxics (MATS) regulation.

A tape of the program can be downloaded by ELI Associates at: http://www.eli.org/events/supreme-court-review-preview

On October 2 I gave a presentation on “China and Climate Change” as part of a new campus-wide "Be Informed" series on the University of Maryland’s Baltimore campus where our law school is located.  I discussed China’s statement at the recent UN Climate Summit that it would agree to an eventual cap on its greenhouse gas emissions and the country’s efforts to expand its pilot cap-and-trade programs for carbon to a national scale.

China Tells U.N. Climate Summit it Will Cap GHG Emissions ASAP, U.S. GHG Emissions Rise, Rockefeller Family to Divest Fossil Fuel Investments, India Supreme Court Revokes Coal Leases (by Bob Percival)

At the UN Climate Summit on September 23, Chinese Vice Prime Minister Zhang Gaoli announced that China would try to stop the rise of its carbon emissions “as early as possible.” Minister Zhang stated that “as a responsible major developing country, China will make an even greater effort to address climate change and take on international responsibilities that are commensurate with our national conditions.” Zhang spoke after President Obama, who had declared that the U.S. and China bear a “special responsibility to lead,” Mr. Obama said, “That’s what big nations have to do.”  According to the Global Carbon Atlas, China is now the world’s leading emitter of greenhouse gases (GHGs) accounting for 27.6% of global emissions.  The U.S. is the second largest emitter.  However, the U.S.still  emits considerably more GHGs per person, 16 tons per persons compared to China’s 7.2.

President Obama declared that “the United States has reduced our total carbon pollution by more than any other nation on earth, but we have more to do.”  The latter portion of his statement was emphasized on September 26 when the U.S. Energy Information Administration (EIA) reported that U.S. carbon emissions from energy use rose in each of the last two years, largely due to the rebounding economy. The EIA report did note that emissions from the transportation sector were flat because Americans were buying more fuel efficient vehicles, that wind and solar energy sources increased seven percent last year, now accounting for 12 percent of U.S. energy generation.

Last week the heirs of oil baron John D. Rockefeller announced that they would divest their $860 million Rockefeller Brother Fund (RBF) of investments in fossil fuels in light of their contribution to global warming and climate change.  The RBF has long been a major supporter of environmental causes, contributing to many of the projects I worked on at the Environmental Defense Fund during the early 1980s.  But last week’s announcement drew great attention because the fund is the product of a fortune initially made in the oil industry.  The RBF indicated that it would take some time to sell its investments in companies in the fossil fuel industry and subsequent reports suggested that the fund may keep its natural gas investments for a longer period of time.  

Last May Stanford University, where I went to law school, announced that it will no longer include companies who mine coal for electricity generation in the investment portfolio of its endowment.  The university Board of Trustees acted on the recommendation of its Advisory Panel on Investment Responsibility and Licensing.  Harvard University has expressly refused requests that it divest its endowment of companies in the fossil fuel industry, citing concerns that such a move might hurt the fund’s returns and the fact that the university uses fossil fuels to heat and light its buildings.

On September 24 the Supreme Court of India upheld a previous decision to revoke 214 coal leases that the Indian government had awarded between 1993 and 2009.  The Court found that the leases had been granted to steel, cement and power companies at prices billions of dollars below market rates.  The Court not only fined the companies $4.85 per metric ton of coal they had mined under the leases, but it also barred them from receiving future leases. The companies were given six months to wind down their coal operations before turning them back over to a government entity.  While some observers expressed fear that the decision could exacerbate energy shortages in India, the Court noted that the leases account for only 7 percent of the country’s coal production and that they may be reallocated in the future.  Neha Thirani Bagri, India’s Top Court Revokes Coal Leases, N.Y. Times, Sept. 25, 2014.

Demonstrations Precede UN Climate Summit, Great Barrier Reef Plan, China Bans Dirty Coal, Wind and Solar Now Compete with Gas, Exxon Gets More Time to Stop Russian Arctic Drilling (by Bob Percival)

People around the world today staged massive demonstrations to demand action from world leaders who will gather at the United Nations on Tuesday September 23 to discuss climate change. The largest demonstration occurred in New York City where it covered a two-mile route south from Columbus Circle.  The New York Times reported that so many demonstrators turned out that protesters still were waiting to be able to move two hours after the front of the group commenced the march. New York Mayor Bill de Blasio announced “a sweeping plan to overhaul energy efficiency standards in all state-owned buildings.” Lisa W. Foderaro, At Climate March in New York, A Clarion Call to Action, N.Y. Times, Sept. 21, 2014.

Last week the Australian and Queensland governments announced a 35-year plan for management of the Great Barrier Reef.  The Reef 2050 Long-Term Sustainability Plan was widely reported to be an effort to forestall the UNESCO from classifying this World Heritage site as “in danger” due to climate change and coastal development.  The reef has lost approximately half of its coral. The plan, which is open to public comment until October 27, 2014, is available online at: http://www.environment.gov.au/marine/great-barrier-reef/long-term-sustainability-plan.  Environmentalists had hoped that it would ban the disposal of dredge spoil on the reef, but it does not.  However, the Queensland government has announced a new plan to dispose of 3 million cubic feet of dredged spoil from the Abbot Point port expansion on land, instead of in reef waters, as previously had been planned.

Last week China’s powerful National Development and Reform Commission (NDRC) banned the burning of low quality coal near populated areas that are fighting severe air pollution.  The NDRC prohibited the use of coal with an ash content greater than 16 percent or a sulphur content of greater than one percent.  The ban will take effect in 2015.  The NDRC also has banned all mining or importation of particularly dirty coal with an ash content greater than 40 percent or a sulphur content greater than 3 percent.  Lucy Hornby & Jamie Smyth, China Ban on Low-Grade Coal Set to Hit Global Miners, Financial Times, Sept. 15, 2014.

Last week Lazard Ltd. relesed its annual comparative analysis of the cost of various fuel sources. The report “Lazard’s Levelized Cost of Energy Analysis - Version 8.0,” which is available online at: http://www.lazard.com/PDF/Levelized%20Cost%20of%20Energy%20-%20Version%208.0.pdf, found that the cost of solar and wind energy projects has continued to decline rapidly. In the last five years the cost of wind energy has declined 58 percent while solar photovoltaics have declined 78 percent in cost.  This has occurred because of significant declines in the prices of materials used in these projects along with dramatic improvements in the efficiency with which these projects generate energy. In many parts of the U.S. large wind farms and solar projects now may be cheaper than gas-fired power even without subsidies.

The U.S. Treasury granted ExxonMobil a short-term extension of its previous September 26 deadline to halt its drilling operations in the Kara Sea in the Russian Arctic.  The extension was granted to enable Exxon to safely wind down its drilling operations.  Exxon’s joint venture with Russia’s Rosnoft must be halted because of U.S. sanctions that were tightened due to Russia’s invasion of Ukraine. Previous sanctions imposed in July only prohibited the export of U.S. of U.S. technology.  These sanctions were broadened earlier this month to prohibit U.S. companies from providing services or technology. Ed Crooks, Russia Arctic Drilling on Hold at Exxon, Financial Times, Sept. 20, 2014, at 12.

September 17 was the 227th anniversary of the signing of the Constitution.  The University of Maryland Carey School of Law celebrated Constitution Day with a wonderful program on “The Supreme Court Justice as Constitutional Scholar.”  Three former Supreme Court law clerks whose Justices have written books about theories of constitutional interpretation spoke at the law school event. Decades before they clerked, I clerked for Justice Byron White who eschewed such theories and declared that the job of the Supreme Court Justice is “to decide cases”.  I took the clerks to lunch and enjoyed exchanging stories about the life of a law clerk.  

Yesterday I spoke about the Environmental Law Program’s activities and future plans at a meeting of the Maryland Carey Law Board of Visitors who celebrated my Senior Education Award from the IUCN Academy of Environmental Law.

Chile Carbon Tax Enacted (Updated), Peruvian Environmentalist Murdered, U.S. Sanctions Target Exxon Drilling in Russian Arctic, Chinese Incinerator Protests (by Bob Percival)

Last week Chile apparently became the first country in South America to adopt a carbon tax when the Chilean Congress gave final approval to President Michelle Bachelet’s comprehensive tax reform program.  The tax, which is to take effect in 2017, will apply to thermal power generation stations that generate more than 50MW of electricity.  The tax package also applies hefty fees to imports of polluting diesel vehicles.  Some media reported that last May, Michael A. Hammer, the U.S. Ambassador to Chile, had criticized the proposed carbon tax as a measure that would discourage foreign investment in Chile.  See http://www.globalpost.com/dispatch/news/regions/americas/chile/140513/chile-carbon-tax. and “Carbon Tax Bill Gains in Chile to Business’s Dismay,” EcoAmerica, August 2014, at 9.   His remarks came only two months after U.S. Secretary of State John Kerry personally had directed all U.S. heads of mission to elevate climate change issues to a major priority.  See http://blogs.state.gov/stories/2014/03/07/we-need-elevate-environment-everything-we-do. 

While it would be difficult to understand why the chief representative of the U.S. in Chile would try to undermine the adoption of one of the most progressive environmental measures in the world, the embassy maintains that the ambassador did not in fact criticize the carbon tax.  Gabrielle Guimond, press attache at the U.S. Embassy in Santiago sent me the following email on September 16: “Ambassador Hammer has not made any public comments on the carbon tax, nor has he criticized the Chilean government on the carbon tax. The carbon tax question, as well as the larger tax reform is an internal issue for the Government of Chile and the Chilean people to decide.”  

It is most gratifying to see the U.S. take this position. In a followup email on September 17, the press attache states: “It seems the authors of the globalpost.com article are referring to a speech the Ambassador gave to the U.S.-Chilean Chamber of Commerce in Santiago on May 6, 2014. To add clarity, the full quote from the Ambassador’s speech is as follows, ‘As you know well, the new Administration is considering several changes. In order to continue contributing to the economy and providing value to society, U.S. businesses have the same requirements as any other business – political and economic stability, and clear rules.  When there are changes it is important to inquire with all stakeholders and, at the same time, make timely decisions in order for businesses to plan and adapt properly. At the Embassy we seek to promote the development of U.S. businesses in Chile, ensuring equal treatment as all other businesses, foreign and Chilean.’ The Ambassador did not, as has been incorrectly asserted, make any comments relating to the carbon tax."

Last week it was revealed that Peruvian environmental activist Edwin Chota, who had campaigned against illegal logging, has been murdered, along with three other men, including Chota’s deputy Jorge Rios.  Illegal loggers are suspected of the murders, which occurred in a remote region of Peru near the Brazilian border.  For years Chota had campaigned for members of indigenous communities to receive title to the lands where they lived and worked.  Chota long had received death threats from illegal loggers who he regularly confronted with nothing more than a machete even though they had firearms.  Some environmentalists are arguing that this horrendous tragedy could have been prevented if the Peruvian government had responded to Chota’s pleas to crack down on the nefarious activities of the loggers.

On September 12 the United States and the European Union significantly strengthened sanctions against Russia in response to Russia’s continuing incursion into Ukraine.  Peter Baker & Andrew Higgins, New Round of Sanctions Targets Energy in Russia, New York Times, Sept. 13, 2014, at A4. The new sanctions are expected to put the brakes on ExxonMobil’s joint venture with Russian oil company Rossneft to develop offshore oil resources in the Kara Sea.  American officials anticipate that the American oil company’s lawyers may try to find creative ways to evade the sanctions, but they confirmed that the U.S. “government’s intention was to shut down the company’s operations in the Kara Sea.” Stanley Reed & Clifford Krauss, New Sanctions to Stall Exxon’s Arctic Oil Plans, New York Times, Sept. 13, 2014, at B1.  The Russian government has been seeking foreign help to develop to tap offshore oil resources in the Arctic as its onshore production declines.

Residents in Boluo County in China’s southern Guangdong Province took to the streets to protest government plans to build a garbage incinerator.  Dozens of demonstrators were arrested after they defied government efforts to dissuade them from protesting.  The government estimated that a thousand residents had joined the protests, while the protesters asserted that the number was an order of magnitude greater.  Chris Buckley, In Southern China, Residents Wary of the Government Protest a Plan to Burn Waste, N.Y. Times, Sept. 15, 2014, at A9. This is the latest in a series of incidents where the Chinese public has distrusted government assurances that locally undesirable land uses would not expose them to greater environmental risks.

BP Held "Grossly Negligent" for Deepwater Horizon Spill, Great Barrier Reef Dumping Plan Dropped, India "Coal Scam," 50th Anniversary of Wilderness Act (by Bob Percival)

In a 153-page ruling issued last week, federal district judge Carl Barbier ruled that “gross negligence” by BP PLC was a major contributing factor to the April 2010 Deepwater Horizon oil spill in the Gulf of Mexico. BP repeatedly cut corners to reduce costs, evincing “an extreme deviation from the standard of care and a conscious disregard of known risks.” The judge placed particular emphasis on BP’s decision to leave debris in the bottom of the well that clogged a critical valve and the failure of BP workers to believe that a negative pressure test showed gas seeping into the well. BP argues that the evidence does not support the judge's ruling, which it will appeal.

The decision was the product of the first part of a three-part civil trial that is being held in federal district court in New Orleans. Lawsuits brought by the U.S. government, five Gulf coast states, and private parties have been consolidated and are being tried together.  The finding of gross negligence means that civil penalties of $4,300/barrel of oil spilled, or up to approximately $18 billion, could be imposed on BP. Judge Barbier found that BP was responsible for 67% of the liability, Transocean Ltd (the owner of the oil rig) for 30% and Halliburton (which performed the cement work on the well) for 3%.  

Although the finding of gross negligence should not surprise anyone who has followed the case closely, BP’s stock price plunged nearly 6%, apparently because the company has set aside only $3.51 billion for Clean Water Act penalties, an amount that will have to be increased dramatically. Judge Barbier is expected to rule next on the amount of oil that was spilled.  BP claims that it is responsible for only 2.45 million barrels of oil spilled, while the government maintains that it is liable for 4.2 million barrels.  This was the focus of the second phase of the trial, which was concluded last fall.  The third phase of the trial, to set the actual penalty, will commence in January. Just days before Judge Barbier’s ruling, Halliburton agreed to pay the plaintiffs $1.1 billion to settle claims against it.

Last week a plan to dispose of 3 million cubic meters of dredged soil near Australia’s Great Barrier Reef was dropped in the face of intense public opposition.  Australian environment minister Greg Hunt instead invited the consortium planning to expand the Abbott Point port to increase coal exports to revise their plan to provide for onshore disposal of the dredged spoil.  Jamie Smyth, Dumping Plan for Barrier Reef Halter, Financial Times, Sept. 3, 2014, at 6.

The government of India has asked the country’s Supreme Court to modify its ruling declaring more than 200 coal mining licenses to be illegal.  The government argued that 40 license holders already producing coal and six that are close to beginning production should not have their licenses cancelled.  This is the latest in a long-running “coal scam” scandal involving coal rights dating back to 1993.

September 3rd marked the 50th anniversary of President Lyndon Johnson signing into law the Wilderness Act and the legislation creating the Land and Water Conservation Fund. In an editorial the New York Times criticized Congress for enacting only two pieces of wilderness legislation during President Obama’s terms (compared to 43 during President Reagan’s).  The editorial noted that only a third of the $900 million authorized annually for the Land and Water Conservation Fund is likely to appropriated, even though the fund is supposed to received dedicated royalties from offshore oil leasing.  “Still Time for a Conservation Legacy,” N.Y. TImes, Sept. 2, 2014.

Singapore Transboundary Pollution Law, A Green Brazilian President? Shell Seeks Arctic Return, Australian Renewables Target, China Article (by Bob Percival)

For decades Southeast Asian nations have been plagued, particularly in summer months, by transboundary haze from slash-and-burn fires in Indonesia.  In June 1990 members of the Association of Southeast Asian Nations (ASEAN) pledged in the Kuala Lumpur Accord on Environment and Development to coordinate their efforts to prevent and abate transboundary pollution.  This led to adoption of the 1995 ASEAN Co-operation Plan on Transboundary Pollution, the 1997 Regional Haze Action Plan, and the 2002 ASEAN Agreement on Transboundary Pollution.  Despite increased regional cooperation, haze pollution in Singapore reached record levels in June 2013, spurring the Singapore government to further action.  In March of this year the government appointed an International Advisory Panel on Transboundary Pollution, including several prominent experts on international environmental law. Earlier this month the Singapore Parliament passed the 2014 Trans-boundary Haze Pollution Act. The Act subjects sources of transboundary pollution to civil and criminal penalties in Singapore courts. Last week the International Advisory Committee submitted its report and recommended options to the Singapore government, which reportedly does not plan to make the report public. Singapore’s National Environmental Agency maintains a website with daily monitoring data on haze and air quality conditions at http://www.haze.gov.sg.

Brazilian environmentalist Marina Silva, who just became a presidential candidate following the death of her running mate, is surging in the polls after a strong performance in the first candidates’ debate last week.  Joe Leahy & Samantha Pearson, Silva Shakes Up Barzilian Election with Strong Showing in Televised Debate, Financial Times, Aug. 28, 2014, at 3. Silva grew up in a remote indigenous community of rubber tappers and was a friend of Chico Mendes, the Brazilian environmentalist who was murdered by ranchers.  In 1996 Silva won the Goldman Environmental Prize for Central and South America.  She served as Brazilian Environment Minister from 2003-2008.  Running as a Green Party candidate for president in 2010, Silva won more than 19% of the vote.  Silva had been the vice presidential candidate of the Brazilian Socialist Party until the death of the party’s presidential candidate Eduardo Campos in a plane crash on August 13.

Royal Dutch Shell reapplied last week for permits to drill off the north shore of Alaska while also negotiating a sale of some of its assets in Nigeria.  Shell said that it had not made a decision to drill in the Arctic next year, but tht it was filing an exploration plan with the U.S. Bureau of Ocean Energy Management in order to keep its options open. Mishaps cut short Shell’s last effort to drill off Alaska in 2012 and a court ordered new environmental studies before Shell could return there. Shell reportedly will sell four oil fields and a pipeline in Nigeria to Nigerian firms as it seeks to reduce its exposure in a country that is moving to impose more stringent terms on foreign oil producers. Anji Raval and Javier Blas, Shell-led Consortium Close to Sale of Nigeria Oilfields to Local Buyers, Financial Times, Aug. 28, 2014, at 11.

Investors in wind and solar energy projects in Australia are concerned that the Abbott government may slash incentives for renewable energy.  Of particular concern is Australia’s renewable energy target (RET), which mandates that 20 percent of electricity be generated from renewable sources by 2020.  The RET previously has received bipartisan support and green energy now accounts for 15 percent of all electricity generated in Australia.  But Abbott has initiated a review of green energy subsidies and his industry supporters have sought to blame them for increases in electricity prices.

I have amended my August 18th blog post to flesh out details of my environmental field trip to China from August 3-15 (photos of the trip are on this website - click on “Photo Albums” above).  I continue to be absolutely fascinated by developments in environmental law there.  An article on “The Role of Civil Society in Environmental Government in the U.S. and China” that I co-authored with Professor Zhao Huiyu has now been published in a symposium issue of the Duke Environmental Law & Policy Forum.  It is available online at: http://scholarship.law.duke.edu/delpf/vol24/iss1/3/  On August 19 I participated in a meeting on the development of administrative law in China at the Administrative Conference of the U.S.  China is in the process of amending its Administrative Litigation Law.  This week the Standing Committee of the National People’s Congress posted the text of the second draft of the law online with a request for comments by September 20.

Maryland’s fall semester started last Monday.  On Tuesday we honored Environmental Law Clinic Attorney Andrew Keir, who is about to depart for his new job at the U.S. Department of Justice, by taking him to Camden Yards to see the Orioles beat Tampa Bay.  I am teaching Environmental Law and Administrative Law this semester, which makes for four days of classes per week, but I really love teaching both courses.  Now that my summer travels are over, this blog will return to its regular weekly schedule.