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.

August 18th Blog Post: Return from China Environmental Field Trip

I am back from China where I led an environmental field trip with Professor Zhao Huiyu of Shanghai Jiatong University School of Law from August 3-15.  It was a terrific trip with lots of in-depth meetings with people who are playing important roles in shaping Chinese environmental policy.  We arrived in Beijing on the afternoon of August 4, visited “snack street,” and had a Beijing duck dinner that night.  On the morning of August 5 we visited the Beijing offices of the Environmental Defense Fund where Qin Hu gave us a great presentation.  After visiting the Lama (Yonghe) Temple, we spent the afternoon at the offices of the Natural Resources Defense Council. We discussed some of the exciting changes in Chinese environmental law with their office director Qian Jingjing and Qi Yu, director of their environmental governance project.  After visiting the Forbidden City in the morning, we spent the afternoon of August 6 at the Center for Legal Assistance for Pollution Victims (CLAPV).  Wang Canfa, CLAPV director, was in England where he has been serving as a visiting professor, but we had a great discussion with Dai Renhui and Liu Xiang.  

On Thursday August 7 we visited the Great Wall at Mutianyu.  We took a tram to the top of the wall and then hiked along it before taking “tobaggans” down to the base.  On the way back from the Great Wall our driver dropped us at the Beijing Airport to catch a flight to Shanghai.  Professor Zhao Huiyu was waiting for us at Hongqiao Airport in Shanghai.   At 6:30AM the next morning we headed to Chongming Island where we visited the incredible Dongtan wetland area, about two hours north of Shanghai.  Geng Zhizhong, director of the protected area, gave us a tour of the wetland, which is an important stop for migratory birds traveling from Australia and New Zealand to SIberia and Alaska. Following the tour we had a meeting with lawyers discussing draft legislation to improve protection of the area.  Geng Zhizhong showing us the video monitoring room where volunteers help protect the wetland area against poachers by watching cameras that can detect trespassers.  We visited the Yinzhou Ancient Town on Chongming Island before returning to Shanghai.  

On Monday August 11 we spent the morning meeting with officials from the Minghang Environmental Protection Board in the western part of Shanghai.  We had a very candid discussion with them concerning the difficulties confronting efforts to enforce China’s environmental laws given the highly decentralized nature of China’s legal system.  On the afternoon of August 11 we took a high-speed train to Nanjing.  On August 12 we spent the morning visiting the law firm of Mr. Liu, the first public interest lawyer in Jiangsu Province who is now the chair of the environmental and natural resources section of the Jiangsu Bar.  From his law firm, Mr. Liu took us to a museum honoring John Rabe, the German who saved many Chinese during the Nanjing Massacre, and then hosted a luncheon banquet for us.  In the afternoon we visited Green Stone, a small NGO founded by university students Wu Yunli and Li Chunhua that seeks to involve young people in environmental protection efforts.  After a night of karaoke in Nanjing, we returned to Shanghai on August 13.

Selected photos of the trip have been placed in the “Photo Albums” section of my parallel blog at: http://www.globalenvironmentallaw.com.  On that blog just click on “Photo Albums” at the top of the page and then “VLS China 2014”.

Checking In from a summer blog hiatus: my summer in Brazil, Spain, Vermont and China (by Bob Percival)

It has been nearly seven weeks since my last blog post on June 16.  This is the first time in the seven years I have been blogging that I have skipped more than a single week.  But after more than 350 posts, this is the first time when I either found myself in a location where I could not conveniently post blog entries or simply juggling too many activities at once to carve out time to blog.  Here is a quick summary of what I have been doing during the last seven weeks.  

June 19-28: Trip to Brazil for the World Cup

From June 19 untl June 28 I was in Brazil with my son to attend two opening round matches of the World Cup futbol tournament.  We initially flew to Manaus where on June 22 we attended the U.S/Portugal match.  Prior to the match we toured Manaus and visiting the incredible 19th century opera house. Despite having our faces painted with U.S. flags, we were the most underdressed U.S. fans because of our absence of U.S. futbol gear.  I am confident that I was the only person among the 40,000 present at the match who was wearing a Washington Nationals hat. After falling behind 1-0, the U.S. team rallied to take a 2-1 lead in the second half.  A victory would have clinched the U.S. a berth in the Round of 16, but Portugal tied the match 2-2 in the closing seconds.  The U.S. fans in the stadium felt like a balloon had burst as their euphoria rapidly dissipated. Arena Amazonia, where the match was held, was gorgeous.

On June 23 we took a charter flight from Manaus to Recife.  After landing at the Recife Airport we took a bus to a small fishing village about an hour south of Recife where we stayed at a beach resort.  On June 24 we toured Recife visiting an old part of town and a historic jail that has been turned into a shopping mall.  Torrential rains hit on June 26, the day of the U.S./Germany match in Recife.  The rains caused such substantial flash floods that many did not make it to the match.  Due to the flooding, what should have been a one-hour trip to the stadium for us took 3 hours and 40 minutes.  My son and I arrived at the match just two minutes before it started.  Although Germany defeated the U.S. by a score of 1-0, the margin was narrow enough to get the U.S. through to the Round of 16.  My son and I flew home on June 27, arriving in the wee hours of June 28.  I have posted a small album of photos for the World Cup in the Photo Albums portion of my parallel website at: www.globalenvironmentallaw.com.

June 29-July 5: 12th IUCN Academy of Environmental Law Colloquium in Tarragona

In the afternoon of June 28 I flew to Europe for the 12th Colloquium of the IUCN Academy of Environmental Law.  The colloquium was held at the Universitat Roviro i Virgili in Tarragona, Spain.  Approximately 340 people from 44 countries participated in the Colloquium.  The IUCN Academy continues to grow.  It now has 157 institutional members from 57 countries.  Six Maryland law students presented papers at the colloquium.  I spoke on energy policy at a plenary session and I chaired a sesson on human rights and the environment.  A book launch ceremony was held for the book I co-edited with Jolene Lin of the University of Hong Kong and Bill Piermattei of Maryland.  The book, Global Environmental Law at a Crossroads, consists of edited papers presented at the IUCN Colloquium we hosted at Maryland in 2012.

A few of the many notable presentations I saw were Eva Duer’s discussion of the international legal resources UNEP is putting online, Laode Syarif’s discussion of the difficulty of enforcing environmental laws in Indonesia, and presentations by Antonio Cardesa-Salzmann and Pia Moscoso on whether international law requires courts to exercise extraterritorial jurisdiction.  The Colloquium also featured a terrific gourmet field trip to a demonstration kitchen and a visit to the university’s winery near Reus where an awesome winetasting was held.  At the closing dinner on July 4 I was surprised and honored to receive the Academy’s Senior Educator Award for my contributions to global environmental education. An album of photos from the 12th Colloquium has been placed in the Photo Album section of my parallel website at www.globalenvironmentallaw.com

July 6-17: Vacation in Madrid and Barcelona

Following the Colloquium I spent a wonderful weekend in Madrid where I ate well and visited the Prado and the Reina Sofia Museum.  My wife then joined me in Barcelona for a week’s vacation.  We did a tapas tour and took a cooking class where you first accompany the chef to the market to buy the ingredients for a paella feast.  We visited the Picasso Museum, the Sagrada Familia (which is much more developed than it was when we were there 20 years ago).  Among the top highlights of our week was a tour in an off-road vehicle to Garraf National Park in the mountains above Sitges that included a private tour of the Can Rafouls winery and the performance of “Carmina Burana” at the extraordinary Palace of Music. 

July 20-July 31: Teaching Comparative U.S./China Environmental Law in Vermont

For the past two weeks I have been in Vermont teaching a summer course on Comparative U.S./China Environmental Law at Vermont Law School.  This is the third year I have taught the course and this year Professor Zhao Huiyu from Shanghai Jiaotong University accepted my invitation to co-teach the course.  We had an most enthusiastic group of students all but one of whom will be coming to China with us on a field trip that starts today.

On July 24, Professor Zhao and I gave a talk to the Vermont Law School community as part of the school’s “Hot Topics” series.  We spoke on “The Struggle to Protect China’s Environment.” On July 27 Professor Zhao and I visited Oran Young and Gail Osherenko, professors from the Bren School of the Environment at UC-Santa Barbara in their wonderful summer home in Wolcott, Vermont.  We went kayaking with them, a first for Professor Zhao.  On July 30 Vermont’s China Partnership took Professor Zhao and I to a minor league baseball game in Montpelier, which was a real treat.

While this blog was on hiatus, there have been some important developments in environmental law around the world.  President Bachelet of Chile fulfilled her campaign pledge to kill the Aysen hydroelectric project.  The ancient Inca Road received World Heritage protection.  France agreed to cap its use of nuclear power.  The U.S. Supreme Court decided that the provision in CERCLA that preempts state statutes of limitations does not preempt state statutes of repose (for an analysis of the decision see my SCOTUS Blog coverage of it at: http://www.scotusblog.com/2014/06/opinion-analysis-courts-narrow-reading-of-superfunds-preemption-provision-leaves-victims-of-toxic-exposure-without-legal-recourse/).  Surprisingly, the North Carolina legislature responded by immediately passing a law intended to reverse the application of the decision to the parties in the case before the Court.  See http://www.ncga.state.nc.us/EnactedLegislation/SessionLaws/HTML/2013-2014/SL2014-17.html. (I was interviewed about this development by a North Carolina news reporter via Skype while in Recife for the World Cup).  

The U.S. Supreme Court also decided the challenge to EPA’s regulation of greenhouse gases under the Clean Air Act. On June 23 the Court decided the case by a 5-4 vote.  In an opinion by Justice Scalia the Court affirmed in part and reversed in part the D.C. Circuit’s decision that had upheld the regulations. The Court majority held “that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions.” In an opinion by Justice Scalia the Court held that EPA “may not treat greenhouse gases as a pollutant for purposes of defining a ‘major emitting facility’ (or a ‘modification’ thereof) in the PSD context or a ‘major source’ in the Title V context.” However the Court concluded that EPA may “continue to treat greenhouse gases as a ‘pollutant subject to regulation under this chapter’ for purposes of requiring BACT for ‘anyway’ sources.”  Justices Ginsburg, Breyer, Sotomayor and Kagan dissented.  In a concurring opinion Justices Alito and Thomas stated that they continued to believe that greenhouse gases cannot be regulated under the Clean Air Act, the position they articulated in Massachusetts v. EPA. While the decision will slightly narrow the scope of EPA’s regulatory program, most of the sources EPA sought to regulate will still be subject to EPA regulation.

I am off to China tomorrow with my Vermont students.  Since Blogspot usually is blocked in China I may not be posting again until after I return on August 15.