Happy 2014. Global environmental law continued to grow in 2013 in a manner that made it one of the most interesting fields of law. Below is a review of what I consider to be some of the top developments in the field during the past year.
January 2013 featured an “airpocalypse” in China, the first of several incidents of air pollution so severe that considerable economic activity had to be shut down. These incidents spurred renewed determination by China’s national government to tighten air pollution standards and to permit greater public debate concerning the country’s environmental problems. In March the Chinese Academy of Environmental Planning estimated that the cost of environmental damage in China in 2010 had risen to $230 billion, 3.5% of the country’s gross domestic product (GDP). In April the Global Burden of Disease study published in the Lancet estimated that 1.2 Chinese died prematurely in 2010 due to exposure to air pollution. Despite increased attention to air pollution in China, Shanghai was gripped with severe air pollution outbreaks in December.
From the standpoint of traditional international environmental law, the top development in 2013 was the successful conclusion in January of negotiations by representatives of more than 140 nations on the United Nation’s Minimata Convention on Mercury. In October 2013 nearly 100 nations gathered in Japan to sign the convention. While the convention will not end mercury use right away, it has set in motion a global process to phase out mercury use over the next 30 years. In November the U.S. became the first country to deposit articles of acceptance of the convention, a development made possible because U.S. law already authorizes the actions necessary for the U.S. to implement the convention.
In May it was discovered that concentrations of carbon dioxide in the atmosphere have passed 400 parts per million (ppm) for the first time since the Pliocene Epoch several millions of years ago. This discovery was made by scientists at Hawaii’s Mauna Loa observatory. The 400 ppm level is a dramatic increase from the level of 316 ppm measured at Mauna Loa in 1958. While little progress was made in global climate negotiations (COP-19) in Poland in November, President Obama made action to control U.S. emissions of greenhouse gases (GHGs) a major priority for his second term that began in January 2013. He began the year by emphasizing the importance of responding to climate change in both his inaugural and State of the Union addresses and in June he unveiled the President’s Climate Action Plan. The Plan details actions that the president and executive agencies will take to use existing law to regulate GHG emissions, including EPA’s issuance of regulations that will make it impossible to build new coal-fired power plants unless they use carbon capture technology. At a summit meeting held in California in June, President Obama and Chinese President Xi Jinping agreed to phase down production and consumption of hydrofluorocarbons (HFCs), a potent greenhouse gas, pursuant to the Montreal Protocol on Substances that Deplete the Ozone Layer.
Meanwhile China made further progress toward implementing a national cap-and-trade system by launching pilot cap-and-trade projects in several cities. The EU tweaked its existing carbon trading system to increase the value of allowances. Australia’s new premier Tony Abbott who won election in September lost little time in seeking to roll back the country’s carbon tax and other environmental measures.
After agreeing in 2012 to a generous settlement to compensate victims of its 2010 oil spill in the Gulf of Mexico, BP in 2013 fought the extent of its liability for civil penalties in a trial in federal court in New Orleans. It also sought to reinterpret the terms of its settlement to limit escalating settlement payments, launching a major ad campaign attacking how the settlement is being implemented. These developments unfortunately undermined what had appeared to be BP’s new model for a major oil company to respond to a catastrophic spill, which previous had stood in sharp contrast to Exxon’s aggressive, decades-long fight over its liability for the March 1989 ExxonValdez oil spill in Alaska. In December the first BP employee to be tried on criminal charges was convicted of obstruction of justice for destroying emails.
Transnational environmental liability litigation suffered another blow in April when the U.S. Supreme Court in its Kiobel decision narrowed the reach of the Alien Tort Statute (ATS). The Court’s 5-4 majority struggled to apply the presumption against extra-territorial application of domestic law to the ATS, an unusual law that was enacted before the presumption was created and that expressly was designed to facilitate transnational litigation. Ironically during the fall a federal district court in New York where plaintiffs had sought two decades ago to bring an ATS suit that Chevron had deflected to Ecuador, held a RICO trial where Chevron seeks to have the Ecuadoran court’s multi-billion dollar liability judgment declared the product of a corrupt conspiracy. In December the Ontario Court of Appeals stunned Chevron by allowing an action to proceed to enforce the Ecuadoran judgment against it.
For many people like me, 2013 was the year when green technology came into its own. I took delivery of my all-electric Tesla S Performance car in early May. I have now driven it more than 8,500 miles while paying virtually nothing for fuel (charging was free at the chargers I used except for a charging station in Charlottesville, Virginia). Last spring Tesla stunned Wall Street by revealing that it had sold more than 10,000 all-electric cars in 31 countries while making a profit. After jumping more than six-fold in a few months, Tesla’s stock price ended the year more than four-fold higher than at the end of 2012. Stung by the fact that Tesla’s success undermined the right’s narrative that green technology is a failure, the editors of the Wall Street Journal continued to condemn Tesla’s American business success story, even though the company repaid its federal loans with full interest nine years before they were due. In November the results of the Two Team Project of the Confederation of European Paper Industries revealed technological breakthroughs that could dramatically reduce the future environmental footprint of the paper industry.
Global energy markets continued to be roiled by the expansion of hydraulic fracturing that greatly increased oil and natural gas production, particularly in the U.S., and the aftermath of the Fukushima Daiichi nuclear accident that dimmed the prospects for an expansion of nuclear power. Coal use increased in China, but the Chinese government took steps that eventually will limit use of that fuel.
While there was a pause in efforts by oil companies to drill in the Alaskan Arctic, Greenpeace’s protest against Russian drilling in the Arctic resulted in the seizure of 30 protesters in September. After initially charging the Greenpeace 30 with piracy and holding them for months, Russian authorities released them in late December as a result of a pre-Sochi Olympics amnesty adopted by the Russian Parliament. Little noticed in the controversy was the fact that Russia defied an order from the International Tribunal for the Law of the Sea to release the Greenpeace protest vessel, the Arctic Sunrise.
I just returned from New York City where I attended the annual meeting of the American Association of Law Schools (AALS). On Saturday January 4 I co-hosted a side event at the Midtown Executive Club to promote the work of the IUCN Academy of Environmental Law. Professor Nick Robinson of Pace University Law School joined me in co-hosting the event, which attracted a full house of environmental law professors. I spoke about the history of the Academy and showed photos from the last ten of the Academy’s eleven colloquia. A highlight of my time in New York was a visit with Nick to the Century Club, which features extraordinary paintings by Albert Bierstadt, Frederic Edwin Church, John Frederick Kensett and other artists from the Hudson River School.