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.