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.
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