China Amends its Basic Environmental Law, Lecture in UAE, Supreme Court Upholds EPA Transboundary Pollution Rule (by Bob Percival)

Last week China’s National People’s Congress (NPC) adopted far-reaching amendments to China’s basic Environmental Law.  The amendments incorporate many of the recommendations I made when testifying before the Standing Committee of the NPC on March 19 (see March 25, 2014 blog post).  A prominent Chinese environmentalists emailed me that “we are all so incredibly excited, over the moon, really” about the new provisions, which are the product of years of advocacy by Chinese environmentalists.  Here are some of the specifics of the new amendments, as described by NRDC’s Beijing office: 

(1) Daily penalties. The new law has established a "blacklist" system, which records environmental law violation information in a new record system and a list of violators will be released to the public. More importantly, the new law has adopted daily penalties, providing that from the next date when a competent administrative agency ordered a violator to correct its illegal behavior but the violator fails to, the agency may order continuous penalties on a daily basis, according to the original amount of penalty. The new law also provides local governments with more discretion to increase the types of activities may incur daily penalties.

(2) Environmental public interest litigation. The law establishes the environmental public litigation provision and grants the standing of plaintiffs in environmental public interest litigation to social organizations which have registered with the governmental civil affair departments above city level, have specialized in environmental public interest activities for more than 5 years, and do not have any law-breaking record. To tackle difficulties in having cases accepted by courts, the new law also clearly provides that courts must accept cases filed by qualified social organizations in accordance with the law. This breakthrough is a strong supplement to the public interest litigation clause in the Civil Procedure Law.

(3) Basic concept of the Environmental Protection Law. The new EPL elevates the importance of environmental protection; "the work of environmental protection must be coordinated with economic construction and social development" has been changed to "the work of economic and social development must be coordinated with environmental protection."

(4) Environmental information disclosure and public participation. The new EPL dedicates an entire chapter to provisions for environmental information disclosure and public participation. It makes specific provisions for the disclosure of environmental supervision information, monitoring information, corporate environmental information, and also for citizens' access to environmental information and participation and supervision of environmental protection.

(5) Permitting  system. The new law establishes the pollutant discharge permit system and clearly stipulates that enterprises, institutions, and other production operators under the pollution discharge permit management system must discharge pollutants within the stated range of emissions on their permits. Without obtaining emission permits, an operator is not allowed to emit any pollutant.

(6) Ecological red lines. The new law provides that the nation sets ecological bottom lines ("red lines" as referred to in the law) and implements strict protection for key ecological function zones and ecologically sensitive or vulnerable zones. Also, according to the law, governments above provincial level are obliged to organize investigation and evaluation of environmental conditions, and to establish early warning mechanisms to detect environmental problems. The new law requires that environmental protection departments must suspend approval of construction projects' EIA documents in areas where pollutants exceed national total emission control targets for major pollutants or in areas that fail to accomplish national environmental quality objectives.

(7) Strengthened enforcement authority. The new EPL clearly strengthens the authority of environmental protection departments to strengthen the deterrent effect of environmental law:

*   It clarifies the administrative enforcement measures environmental protection departments can take. For the illegal discharge of pollutants causing or likely to cause severe pollution, environmental protection departments above the county level and other departments responsible for environmental supervision or management can close down or seize facilities and equipment causing the pollution.

*   it clarifies the legal status of environmental monitoring institutions entrusted by the competent departments of environmental protection administration, empowering them to make on-site inspections of enterprises and other producers that discharge pollutants.

*  it provides for four types of serious cases of environmental violations where responsible persons could face administrative detention, including: if their company didn't undertake an EIA and refused to suspend production after being issued a ban, discharged pollutants without a pollutant discharge permit, falsified monitoring data, or continued to use pesticides banned by the state after being ordered to make corrections.”

On Saturday April 26 I flew from Washington to Dubai to give a lecture on “Environmental Law in an Era of Globalization” at the American University of Sharjah in the United Arab Emirates (UAE). Professors Mohamed Abouleish and Gary Gold, who served as my hosts, are co-teaching what is believed to be the only environmental law course offered in the UAE.   As I pointed out in my lecture, which was given on April 28, the UAE has the second highest per capita emissions of greenhouse gases in the world, second only to Qatar.  The country uses oil to provide for virtually all of its energy needs and its water is provided by energy-intensive desalination plants.  An experiment with solar power apparently was abandoned after it was determined that desert dust storms made it too expensive to clean the panels frequently.  Fortunately I was in the UAE for what the locals called a “cool spell.”  The temperatures, which can range from 120 to 130 degrees Fahrenheit in summer months, were only approximately 100 degrees.   The sheik who rules Sharjah has placed a particular emphasis on education and the American University of Sharjah is one of seven schools located in a beautiful “University City” complex.  I arrived back in the U.S. on the morning of April 29.  Photos that I took while in the UAE have been posted in the “Photo Albums” portion of my parallel website at: http://www.globalenvironmentallaw.com. This was my first visit to the UAE, the 83rd country I have visited.

On April 29 the U.S. Supreme Court delivered an important victory to the U.S. Environmental Protection Agency by reversing the D.C. Circuit’s decision that had struck down the EPA’s interstate air pollution rule.  (See the December 16, 2013 blog post concerning the oral argument before the Supreme Court). The D.C. Circuit’s decision had represented a new height of judicial activism by the D.C. Circuit, which imposed such demanding requirements on EPA that it would have been extremely difficult for the agency to implement the interstate air pollution provisions of the Clean Air Act (CAA).  The Supreme Court reversed the D.C. Circuit, reinstating EPA’s rule, in a 6-2 decision with Justice Alito recusing himself.  What seems particulary significant is that both Chief Justice Roberts and Justice Kennedy joined Justices Breyer, Sotomayor and Kagan in embracing in full Justice Ginsburg’s majority opinion.  Justice Ginsburg has been the Justice who in the past has been the most sympathetic toward environmental concerns.  The case turned in large part over whether EPA had violated the CAA by basing states’ obligations to control transboundary pollution on what measures can be undertaken most cost-effectively.  EPA’s rule thus avoided penalizing states that already have done the most to control interstate air pollution.

Justice Scalia dissented, in an opinion joined by Justice Thomas.  He even read his dissent from the bench to emphasize how strongly he rejected EPA’s arguments.  However, Justice Scalia made a major blunder in his slip opinion.  He accused EPA of having previously tried to incorporate costs into the Clean Air Act, citing the 2001 American Trucking decision.  However, it was industry groups and not EPA who had made this argument in American Trucking, a decision authored by Justice Scalia.  Apparently Scalia was sufficiently embarrassed by his mistake to change this portion of his dissent because a new sentence and subheading were substituted on the Court’s website this morning.  Not since 1983 when Justice Rehnquist’s slip opinion in Ruckelshaus v. Sierra Club inadvertently disclosed that the Justices originally had voted the other way (see my article “Environmental Law in the Supreme Court: Highlights from the Marshall Papers,” 23 ELR 10606, 10621 (1993)) has such an embarrassing mistake been made by a Justice in an environmental case.  

Tens of thousands of protesters have succeeded in temporarily halting the construction of two nuclear reactors at a site outside of Taipei.  Protesters overwhelmed police and took over control of an eight-lane highway.  Taiwanese President Ma Ying-jeou has pledged to call a referendum to determine whether to complete construction of the plants whose proximity to earthquake faults has raised public concern.

CERCLA Case in Supreme Court, Southern Working with Chinese on Carbon Capture, IUCN Essential Readings, Scalia/GInsburg Opera (by Bob Percival)

During the last week and a half I have been blogging for the SCOTUS Blog, which covers the U.S. Supreme Court.  I am covering a case before the Court involving the federal Superfund statute, also known as CERCLA. The case, CTS v. Waldburger, involves the question whether § 309 of CERCLA trumps a North Carolina statute that otherwise would bar homeowners from suing over contaminated groundwater because more than ten years have passed since the defendant ceased operations.  On Tuesday my case preview, which describes in detail the issues raised in the case and the arguments made in the briefs before the Court, was posted on the SCOTUSBlog at: http://www.scotusblog.com/2014/04/argument-preview-law-school-clinic-seeks-to-preserve-day-in-court-for-victims-of-polluted-well-water/ My analysis of yesterday’s oral argument was published today at: http://www.scotusblog.com/2014/04/argument-analysis-was-congress-more-legally-sophisticated-than-the-justices-when-it-overrode-state-limitations-on-lawsuits-for-toxic-exposure/  

On Monday the U.S. Supreme Court denied a cert petition from ExxonMobil Corporation, which asked the Court to review a decision by the Second Circuit upholding a judgment obtained by the city of New York against the corporation for environmental contamination from methyl tertiary-butyl ether (MTBE).  Exxon argued that the judgment should not be predicated on predicted future injuries from MTBE and that the Clean Air Act, which required companies to use oxygenated fuels, should preempt state tort liability.  Now that the Court has denied review, the judgment will stand.

Last week the U.S. power company Southern Company, which is building the first U.S. coal power plant to employ carbon capture technology, announced that it had signed a deal to work with a Chinese energy company on development of the technology. Southern Company subsidiary Mississippi Power is employing the technology at its $5 billion coal plant in Kemper County, Mississippi.  Southern will work with China’s Shenhua corporation on development of the carbon capture technology.  It has agreed to share with ratepayers some of the licensing revenue it receives from marketing the technology, whose development has been funded by them.

The IUCN Academy of Environmental Law has released the first of its “Essential Readings” project.  The Academy asked prominent environmental law scholars from around the world to name the best works in the field, which could be considered to be “Essential Readings.” I made two contributions to the project that focus on essential readings in the history of environmental law.  The description of the essential readings can be viewed online at: http://www.iucnael.org/essentials-readings-in-environmental-law-topics.

Today I attended a reception for the Board of Directors of the National Constitution Center.  It was held at the offices of the Pew Charitable Trust in Washington, D.C.  Jeffrey Rosen, president and CEO of the Center, emphasized its non-partisan nature and noted that former Florida Governor Jeb Bush, one of the members of the board, was present.  The highlight of the reception and the reason I was invited was because my former student Derrick Wang had composed an opera entitled “Scalia/Ginsburg,” which was previewed at the reception.  Derrick came to me with the idea for the opera while in my first year Constitutional Law class.  I put him in touch with Maryland environmental adjunct professor Mike Walker, an EPA attorney who is a member of the Washington Opera Company and the rest is history.  Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer were in the audience and they spoke to the audience from the stage after the performance, which was terrific.  The opera is immensely entertaining.

On Saturday I am flying to Dubai in order to deliver a lecture on “The Globalization of Environmental Law” at American University of Sharjah on Monday April 28.

Constitutionalism Conference, IPCC Report, Japan Nuclear Restart, WHO to Regulate E-Cigarettes, New Maryland Dean (by Bob Percival)

On Friday April 11 I spoke at a conference on “Global Environmental Constitutionalism” at Widener University School of Law.  The conference included a terrific group of global scholars, including presentations made over Skype by professors in South Africa and the Galapagos.  I spoke on “Executive Power to Respond to Climate Change in an Era of Globalization and Divided Government.” I compared President Obama’s efforts to respond to climate change in the face of congressional gridlock with initiatives by the Chinese government and efforts by Australian Prime Minister Tony Abbott to roll back measures to control greenhouse gas (GHG) emissions.  The conference highlighted the work of Widener professors Jim May  and Erin Daly who are publishing a book on Global Environmental Constitutionalism with Cambridge University Press in September.

Last week in Berlin the Intergovernmental Panel on Climate Change (IPCC) released the report of its Third Workgroup on Mitigation of Climate Change as part of the Fifth Assessment process that will produce a new Synthesis Report in October 2014. The report found that GHG emissions increased faster during the decade of 2000-2010 than in any of the previous three decades.  While finding that it is still possible to keep global temperatures from rising more than two degrees Celsius above pre-industrial levels, the panel concluded that this would require a 40-70% reduction in GHG emissions by 2050 and a reduction to near zero by 2100.  The report notes that improvements in energy efficient technologies are making it cheaper to reduce GHG emissions.

On April 11 Japanese Prime Minister Shinzo Abe’s cabinet approved the restart of nuclear power plants shut down in the wake of the March 2011 Fukushima Daiichi disaster.  Prior to the disaster nuclear power accounted for nearly a third of Japan’s electrical generating capacity.  Many believe that no more than 40% of the reactors shut down in the wake of the accident will ever be restarted, but the nuclear restart should help reduce the country’s increasing reliance on imported fossil fuels, which eliminated the country’s current account surplus.  

A leak of crude oil from a pipeline in Lanzhou, capital of China’s Gansu province, contaminated the water supply for 2.4 million people.  The pipeline was owned by a local unit of China National Petroleum Corporation.  Benzene levels in the water supply were measured at 200 micrograms per liter, twenty times the national limit.  Brian Spegele, China Water Supply Tainted, Wall St. J., April 14, 2014, at A12.

The World Health Organization (WHO) is preparing to treat electronic cigarettes as tobacco products under the Framework Convention on Tobacco Control (FCTC). At a meeting preparing the agenda for the annual meeting of the parties to the FCTC the WHO took the position that e-cigarette use “renormalises” tobacco use and “could result in a new wave of the tobacco epidemic.” The agency took the position that if the products contain nicotine derived from tobacco leaves they should face the same restrictions on advertising and public use, and large excise duties applicable to other tobacco products.  The U.S. is one of the few developed countries that has failed to ratify the FCTC.  Duncan Robinson & Shannon Bond, E-Cigarettes Face Same Rules as Tobacco Under WHO Proposals, Financial Times, April 14, 2014, at 1.

Today President Jay Perman of the University of Maryland Baltimore announced that Professor Donald Tobin from Ohio State University’s Moritz School of Law has been appointed the new dean of the University of Maryland Carey School of Law.  In his statement accepting the appointment, dean-designate Tobin cited Maryland’ environmental law program as one of the strengths of the school.  His appointment was truly a consensus decision that has united the entire Maryland community.

Students in my Global Environmental Law seminar have completed blog posts concerning the research they have been conducting.  Starting tomorrow I will be posting them daily in the “Students” section of my parallel blog at: http://www.globalenvironmentallaw.com.

ESA Testimony, Anadarko $5 Billion Settlement, European Commission Agrees to Delay Renewable Subsidy Phasedown (by Bob Percival)

Today I testified as a minority witness before the House Committee on Natural Resources which was considering four bills to amend the Endangered Species Act (ESA). The bills would require the Department of Interior to publish more data about species listings on the internet, designate data submitted by state and local governments as the best available scientific evidence, require detailed accounting of attorneys fee awards and cap hourly fees recoverable under the ESA’s citizen suit provisions.  I testified in opposition to each of the bills.  I argued that one reason why Interior and the National Marine Fisheries Service have been subjected to so much litigation is because they have not been adequately funded to promptly carry out their statutory duties.  Imposing additional unfunded mandates on them would only exacerbate this problem.  I also noted that the attorneys fee shifting provisions of the ESA mirror those of the other major federal environmental statutes and that there is no reason to change them. A copy of my testimony and the testimony offered by other witnesses is available online at: http://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=374401. Michael Bean, my former colleague at the Environmental Defense Fund who is now counselor to the assistant secretary for Fish and Wildlife and Parks at the Department of Interior, skillfully defended the agency’s implementation of the ESA.

Last week Anadarko Petroleum agreed with the federal government to a $5.15 billion settlement of environmental cleanup claims at more than 2,700 sites.  The settlement is a result of Anadarko’s in 2006 purchase of Kerr-McGee, which tried to spin off most of its massive environmental liabilities into a titanium dioxide subsidiary called Tronox.  Burdened with these liabilities, Tronox not surprisingly went bankrupt in 2009.  Following the bankruptcy, EPA sued Anadarko for fradulently attempting to avoid the environmental liabilities that were spun off with Tronox.  After a lengthy trial, EPA’s claim was upheld in federal bankruptcy court in New York with the judge holding in December 2013 that Anadarko was liable for between $5 and $14.2 billion in environmental claims.  The $5.15 billion settlement is at the low end of this range, which sent Anadarko stock up 15 percent in one day.  Lynn Cook & Daniel Gilbert, Anadarko Settlement Follows Years of Contamination, Wall St. J., April 7, 2014, at B3.

In response to pressure from Germany, the European Commission has agreed to relaxed planned restrictions on future subsidies to renewable energy.  The change will enable Germany to enact a new renewaAlex Barker & Jeevan Vasagar, Financial Times, April 7, 2014, at 2.

ICJ Whaling Decision, WHO Air Pollution Report, 25th Anniversary of ExxonValdez Spill, Golden Trees (by Bob Percival)

On March 31 the International Court of Justice (ICJ) released its long-awaited (see July 7, 2013 blog post) ruling in the challenge by Australia and New Zealand to Japan’s whaling in Antarctica.  A copy is available here: ICJ Whaling.pdf.  By a vote of 12-4 the ICJ ruled against Japan, finding that its whaling in Antarctica is not for the research purposes permitted by the International Convention for the Regulation of Whaling.  The ICJ unanimously rejected Japan’s claim that it did not have jurisdiction over the dispute.  Australia initiated the proceedings in 2010 when it had a government much more sympathetic to environmental concerns than the current government of Premier Tony Abbott.  Unlike prior ICJ decisions that have waffled on environmental concerns, perhaps reflecting the ICJ’s lack of enforcement clout, this one clearly rejects Japan’s argument that its whaling is for authorized research purposes.  The ICJ orders Japan to revoke certain permits it has issued for whaling and preliminary indications are that Japan will abide by the decision.

On March 25 the World Health Organization released a report estimating that air pollution caused 7 million premature deaths worldwide in 2012, twice as high as previous estimates.  See http://www.who.int/phe/health_topics/outdoorair/databases/en/  This means that one out of every eight deaths worldwide was caused by air pollution, making it the world’s greatest environmental risk to health.  More than one-third of these deaths occur in developing nations in Asia.  Indoor air pollution posed the greatest threat, contributing to 4.3 million deaths.  Dr. Carlos Dora, coordinator of public health and the environment at WHO emphasized that the agency now has “a better understanding of how large a role air pollution plays in strokes and coronary heart attacks.” Andrew Jacobs & Ian Johnson, Citing High Risks, Report Finds Pollution Killed 7 Million Worldwide in 2012, N.Y. Times, March 26, 2014, at A6.

On March 25 the U.S EPA issued a proposed rule to clarify which waters can be regulated under the Clean Air Act.  This issue that has been fraught with confusion since the U.S. Supreme Court’s Rapanos decision in 2006. Alicia Mundy, EPA Takes Wetland Step, Wall St. J., March 26, 2014, at A2.

March 24 was the 25th anniversary of the Exxon Valdez oil spill in Alaska’s Prince William Sound.  The anniversary occurred while the Houston Ship Channel was closed for three days due to a major fuel oil spill caused by a barge colliding with another vessel.   Lynn Cook, Channel Open Again After Fuel-Oil Spill, Wall St. J., March 26, 2014.

On Sunday I returned from a quick trip to California to attend the annual Macworld conference.  The highlight of the trip was the tour I was given of Google’s headquarters campus in Mountain View on March 27 by Google employee Elliott Seltzer who is married to my former student Brooke Seltzer.  Brooke is a former professional soccer star who led the Carolina Courage to the women’s professional soccer championship during the first year of the former Women’s United Soccer Association (WUSA). While in San Francisco I had a wonderful dinner at Mandalay, the city’s oldest Burmese restaurant, with my friend Holly Munoz.  Holly is about to release her first record album and from the advance clips that I’ve heard it will be spectacular.  Also at the dinner was Tony Seba, a lecturer in entrepreneurship and clean energy at Stanford.  We helped Tony review the cover art for his new book on how green energy will disrupt existing energy markets.

The blog posts made by the students on our recent spring break environmental field trip to China have now been posted in the “Students” section of my parallel blog at: www.globalenvironmentallaw.com. Photos of the trip will be posted in the “Photo Albums” section of this website in the near future.

On March 26 the University of Maryland Environmental Law Program hosted its annual Environmental Law Film Awards ceremony.  The award for Best Picture went to “The Conowingo Controversy,” a film highlighting the lack of action to address silt buildup behind the Conowingo Dam.  The film, which was made by Hilary Jacobs, Allie Santacreu, Renee Connor and David Barry, also won awards for Best Acting and Best Sound.  The Golden Tree for Most Educational Film went to “Baltimore Brownfields Rennaisance” by Michael Brown and Kay Fallon.  The film also won awards for Best Interviews and Best Screenplay.  Best Cinematography was won by the film “Maryland’s Community Energy Future” by Katrina Rowe and Nick McDaniels.  The award for Best Use of Humor went to “Rain Tax” by Liz Rinehart, Kaitlyn Smith and Anthony May.  The film examined the controversy over a Maryland stormwater discharge fee that its opponents have cleverly dubbed a “rain tax”.  The film also won awards for Best Narration and a Special Judges Award for “Cutest Kids.”  The award for Best Animation/Special Effects went to “Shark Finning,” a film by Rachel Burch and Tara Messing.