Judge Holds Vale Liable for Brazilian Spill, Record Air Pollution Spurs Vehicle Restrictions in Italy, Court Approves Restart of Two Japanese Reactors, Obama Vetoes EPA Disapproval Resolutions (by Bob Percival

A Brazilian judge has ruled that the Brazilian multinational mining company Vale SA shares liability for the catastrophic tailings spill from a collapsed storage dam operated by Samarco Mineracao SA, a joint venture between Vale and BHP Billiton Ltd.  Judge Marcelo Aguiar Machado found that Vale’s contract to dump tailings into the storage impoundment “is sufficient to lay the foundation for the claim that Vale should be considered a direct polluter and, in this quality, responsible for the environmental damage.  The November 5th collapse unleashed “an avalanche of mud that killed 19 people, destroyed several villages, polluted hundreds of miles of rivers and left a reddish plume in the Atlantic Ocean so vast it was visible from space more than a month later.” Paul Kiernan, Miner Vale Shares Liability in Dam Break, Judge Rules, Wall Street Journal, Dec. 21, 2015. The judge ordered Vale to pay $500 million within 30 days to fund initial cleanup or pay daily fines.

Major cities in Italy - Milan and Rome - have imposed restrictions on vehicle use because of record levels of air pollution.  Unusually mild and dry weather and the absence of wind has contributed to a buildup of high levels of particulates and nitrogen dioxide.  Motor vehicles and home heating systems that are largely unregulated  are two of the primary sources of the pollution. Gaia Pianigiani, Italy, Dirty Air at Record Levels, Is Putting Limits on Traffic, N.Y. Times, Dec. 24, 2015.  The reactors are expected to return to service in late January.

On December 24 a Japanese court approved the restart of two more nuclear reactors that had been shut down in the wake of the 2011 Fukushima Daiichi disaster.  The reactors, which are owned by Kansai Electric Power, are located in the western city of Takahama. The Fukui District Court lifted an injunction after determining that the plant operators had complied with new regulations by Japan’s Nuclear Regulation Authority. The first of the reactors is expected to return to operation in late January 2016.

On December 23 the editors of the Wall Street Journal published an editorial praising Congress for cutting the EPA budget.  “Brushing Back a Lawless EPA,” Wall St. J., Dec. 23, 2015.  The editors noted that the omnibus budget bill funded EPA at a level of $8.1 billion, $451 million less than President Obama had requested.  It noted that EPA now has only 15,000 employees, down from 17,000 at the start of the Obama administration and the lowest level since 1989.  It decried the lack of policy riders to block EPA action, save for one barring EPA from regulating livestock emissions of greenhouse gases (GHGs).  EPA opponents in Congress did try to use the Congressional Review Act (CRA) to veto EPA regulations to limit GHG emissions from power plants.  The CRA creates a special fast-track procedure permitting an up-or-down vote in each house of Congress.  On Nov. 17, 2015, the U.S. Senate passed a joint resolution of disapproval of EPA’s new source performance standard by a vote of 52-46 with only three Democrats supporting the resolution and three Republicans voting against it. The disapproval resolution was adopted by the House by a vote of 235-188 on Dec. 1, 2015, even as the Paris climate negotiations were taking place.  Only four Democrats supported the resolution, while 10 Republicans voted against it.  A resolution disapproving EPA’s GHG regulations for existing power plants passed the Senate on Nov. 17, 2015 by a vote of 52-46.  The resolution passed the House by a vote of 242-180 on Dec. 1, 2015.  This all turned out to be political theater because, as promised, President Obama vetoed both joint resolutions of disapproval on Dec. 18, 2015. As a result, the regulations remain in effect.

Mercury Rule Intact, Last British Coal Mine Closes, Tehran & Delhi Air Pollution, Brazil's Toxic Sludge (by Bob Percival)

A week after the Paris Agreement on climate change was adopted, environmentalists are still enjoying the afterglow that comes from having the entire world now participating in efforts to respond to climate change.  On Monday the New Republic published my article “Can Obama’s Climate Pledges Survive Republican Opposition?” as the lead story on their website at: https://newrepublic.com/article/125735/can-obamas-climate-pledges-survive-republican-opposition.  As noted last week, it is widely agreed that a major factor in reaching the agreement was diplomacy between the U.S. and China that in November 2014 had produced China’s first pledge to cap and reduce its greenhouse gas (GHG) emissions.  Those who participated in the negotiations also had nothing but high praise for the role France played in bringing the parties together.

On December 17 a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed that EPA can keep its regulations controlling mercury emissions from power plants intact while it complies with the Supreme Court’s Michigan v. EPA decision.  Last June the Supreme Court in Michigan v. EPA held that EPA should have considered costs when it initially decided to regulate mercury emissions from power plants.  The mercury rule had not been stayed, however, and virtually all power plants that were not planning to shut down had complied with it.  This confirms what I said in my blog post of July 5, 2015 where I wrote: “While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision.  EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported.  Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated.”

On December 18 the Kellingley Colliery, the last deep coal mine in Britain, closed. In 1981 Britain produced more than 125 million tons of coal each year, but coal production has been steadily declining since then. In the early days of the 20th century more than 1 million people worked in the UK coal industry, but by the 1970s only 250,000 people were employed there.  Some surface coal mines still remain in Britain, but a fall in global demand for coal led to a precipitous decline in the coal industry’s fortunes there.

Government authorities in Iran’s capital of Tehran closed schools for two days beginning on Sunday December 20 because of extraordinarily high levels of air pollution.  (Sundays are a working day in Iran with Friday being the only official weekend day). Schools also were closed in the Iranian cities of Isfahan and Arak. On December 16 the Supreme Court of India responded to high levels of air pollution by banning registration of large (over 2000 cc) diesel vehicles in Delhi until March 31.  The Court also prohibited vehicles transporting goods whose final destination is not Delhi from transiting through the city.  The Court’s order partially reverses an order by the National Green Tribunal banning registration of all diesel vehicles until January 6.  The Court explained that it wanted the wealthier classes who typically own the larger diesel vehicles to bear the brunt of its orders.

An article published last week in the New York Times questions whether the companies responsible for the November toxic sludge spill at an iron ore mine in Brazil will ultimately be held to account for all the damage they have caused. Vanessa Barbera, Brazil’s Toxic Sludge, N.Y. Times, Dec. 17, 2015, at A35.  The article notes that Brazil collects only 3% of the fines it imposes in environmental cases. “According to government statistics, environmental lawbreakers in Brazil paid less than 3 percent of fines levied against them over the past five years. Many people suspect that Vale and BHP will go unpunished and that safety regulations for the mining industry won’t be updated in light of the disaster.”

Historic Climate Agreement in Paris, Paris Trip, "Airpocalypses" in New Delhi and Beijing, Jiangsu High People's Court Delegation (by Bob Percival)

On December 12, 2015, 195 nations unanimously endorsed a new global climate agreement in Paris at the conclusion of the 21st Conference of the Parties to the UN Framework Convention on Climate Change (COP21).  An English version of the Paris Agreement can be accessed online at: http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.  Although the agreement had been widely anticipated for some time, it is a historic achievement because it commits virtually every country in the world for the first time to take action to control emissions of greenhouse gases (GHGs).  While it is well recognized that the intended nationally determined contributions (INDCs) each country made will not, taken together, be sufficient to meet the global target of keeping the rise in global temperatures well below 2 degrees Celsius, countries intend to strengthen their commitments every five years and a robust system of transparency and monitoring will be established to measure progress.  

Tomorrow the global blog “The Conversation” will feature a short article I was asked to write, which is entitled “Promises, Promises: How Legally Durable Are the Pledges the U.S. Made at the Paris Climate Conference?” (http://theconversation.com/promises-promises-how-legally-durable-are-obamas-climate-pledges-51786).  The article reviews why the U.S. emissions reduction pledge made in Paris is on solid legal ground. It notes that unless a president opposed to climate action is elected in 2016, it will be difficult, if not impossible, to reverse the U.S. commitment.  For decades the principal argument that opponents of U.S. action have used is that the U.S. should not act to control its GHG emissions because other countries like China are not required to do so.  Now that virtually every country in the world finally has agreed to control its emissions, it would be the height of folly for the U.S. to step back on its pledge.

I was among the estimated 40,000 people who were in Paris last week for the COP-21 negotiations.  Security had been tightened in the wake of the November 13th terrorist attacks there, but not to ridiculous levels.  On December 4 I participated in the inaugural Climate Law and Governance Day at La Sorbonne Law School.  Mary Robinson, former premier of Ireland, gave a wonderful opening keynote.   The conference was held near the Place du Pantheon where eight, 11-ton pieces of glacial ice had been placed to make a statement on climate change.  The ice came from Greenland and was arranged by artists in the shape of a clock.  On the left bank of the Seine Greenpeace, to protest Japan’s continued whaling, had erected a life size, 110-foot replica of the enormous whale Bluebelle that had been captured in the South Atlantic a century ago.  

In honor of COP-21 the “Scintillance” display of lights along the Champs-Élysées was powered by renewable energy from a solar display, a wind turbine, and electricity generated by humans riding stationary bicycles, walking on treadmills or swinging on swings along the avenue.  On December 7 I attended a conference on “Women on the Front Lines of Climate Change,” sponsored by the Women’s Earth & Climate Action Network International.  Speakers gave their perspectives on how climate change was affecting women throughout the world.  When one speaker decried the fact that the climate negotiations were dominated by “old white men in business suits,” I looked around the room and discovered that I probably was the only old white man in a business suit among the 150 people present.  Another speaker stated that the group’s purpose was “not to put down men, but to elevate women.”  I hope to have a folder of photos from my Paris trip available on this website by the time I make my next blog post.

One of the most important factors in the success of the Paris negotiations was the climate agreement between China and the U.S. announced in November 2014.  Both countries, who are the two largest emitters of GHGs, coordinated their negotiating stances, and when they differed a phone call last week from President Obama to Xi Jinping helped smooth things out.  Last March when I had the privilege of delivering the annual Wallace Stegner Lecture at the University of Utah I entitled it “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Cooperation.” The thrust of my argument was that China so admires U.S. technology and its success in controlling air pollution, which remains an incredibly serious problem there, that it set the stage for the two countries cooperating on environmental issues which could help produce a breakthrough in Paris.  The University of Utah Press is in the final stages of editing my lecture for publication and its basic argument holds up well in light of the Paris Agreement.

Even as the nations of the world were negotiating a historic climate agreement, unbelievably bad air pollution blotted out the skies in New Dehli and Beijing.  Both countries imposed red alert, emergency measures in response to the pollution.  These included shutting down schools and businesses, urging people to stay indoors, and banning half the vehicle fleet from driving on alternate days.  These “airpocalypses” have occurred before, but because residents of Beijing thought progress was being made in reducing air pollution it particularly undermined public confidence there.

After returning to D.C. from Paris, I presented a day-long environmental workshop on Thursday December 10 to a group of 20 judges from the High People’s Court of Jiangsu Province.  The workshop, which was sponsored by the University of Maryland College Park’s Office of China Affairs, was held in College Park.  In the morning I provided a basic introduction to environmental law and in the afternoon I focused on who can sue to protect the environment and issues of environmental standing.  Jiangsu is the province where a court last year convicted 14 people of criminal offenses and fined six companies $26 million for discharging 25,000 tones of chemical waste into two rivers.   This was believed at the time to be the largest fine ever levied in China for environmental violations.

COP21 to Start in Paris, Japan to Resume Antarctic Whaling, Alberta Carbon Tax, Brazil to Seek $5 Billion for Tailings Dam Collapse (by Bob Percival)

World leaders are gathering in Paris tomorrow for the formal opening of the long-awaited 21st Conference of the Parties (COP21) to the UN Framework Convention on Climate Change.  It is widely anticipated that before the conference closes on December 11 a new global agreement will be adopted incorporating national plans to control emissions of greenhouse gases (GHGs).  The terrorist attacks in Paris on November 13 will deflect part of the leaders’ attention as some will be conferring to further coordinate the global response to terrorism.  Today Angola became the 184th country to submit its climate action plan ahead of the formal opening of the conference. In an effort to undermine President Obama’s negotiating position, Senate Majority Leader Mitch McConnell published a harshly critical oped. Mitch McConnell, Obama Takes His Reckless Energy Plan to the United Nations, Washington Post, Nov. 29, 2015 (https://www.washingtonpost.com/opinions/the-president-doesnt-have-the-power-to-sign-onto-international-environment-commitments/2015/11/27/924a45e8-92ee-11e5-a2d6-f57908580b1f_story.html).  McConnell argues that the President’s Clean Energy Plan is likely illegal (again citing Professor Laurence Tribe’s bogus arguments against it), opposed by a majority in Congress and likely to be revoked by a new Republican president.  

Japan sparked international outrage last week when it announced that it would resume whaling in Antarctic waters despite a March 2014 ruling by the International Court of Justice (ICJ) that its previous whaling activities had violated the global moratorium on commercial whaling.  International Court of Justice, Whaling in the Antarctic, Judgment of 31 March 31 2014 (http://www.icj-cij.org/docket/files/148/18136.pdf). Japan had argued that its whaling was legal because it was for “research” purposes, but the ICJ ruled that it was not essential to kill the whales to conduct research.  Japan’s whaling fleet plans to take an average of 333 minke whales per year for the next 12 years, one-third the level of the Japanese fleet’s catch prior to the ICJ ruling.  The governments of Australia and New Zealand, which brought the legal challenge in the ICJ, were joined by Britain in condemning Japan’s announcement.

On November 22, Rachel Notley, Premier of Canada’s province of Alberta, announced a “climate leadership plan” that includes a province-wide carbon tax.  Notley was joined at the announcement by the leaders of the largest companies that extract oil from Alberta’s tar sands, including Suncor Energy and Shell Canada.  Notley was elected premier of Alberta in a surprise electoral result that ended 40 years of conservative rule in the oil-rich province.  Shortly after taking office Notley appointed a five-member panel of experts to develop the climate plan. Although Alberta already has a small carbon tax on industrial users, the new plan will expand the tax to cover end users of energy as well.  The tax will be set at $20/ton of carbon in 2017,  increasing to $30/ton in 2018, and rising annually at a rate of inflation plus 2%.

Brazil’s environmental minister Izabella Teixera announced that the Brazilian government will file a lawsuit seeking more than $5 billion from the mining companies whose tailings dam collapsed in the state of Minas Gerais on November 5.  The collapse flattened the village of Bento Rodrigues, killing at least 13 people (11 are still missing) and engulfed the River Doce in an avalanche of 62 million cubic meters of mud and potentially toxic tailings.  Teixera called the collapse “the country’s biggest environmental catastrophe.” The collapse occurred at an iron ore mine owned by Samarco, a joint venture between global mining giants Vale and BHP Billiton. 

Obama Rejects Keystone XL, Montreal Protocol Focuses on HFCs, Finland Nuclear Waste Repository, Volkswagen Encourages Whistleblowers, U.S. Cuba Marine Agreement, Peabody Settlement (by Bob Percival)

On Friday November 6 President Obama announced that he had accepted Secretary of State John Kerry’s recommendation to reject TransCanada’s application to build the Keystone XL pipeline.  The decision ends a seven-year process during which the pipeline became a top political controversy with strong support from Republicans and opposition from every Democratic presidential candidate.  Announcing his decision, President Obama stated that "America is now a global leader when it comes to taking serious action to fight climate change, and frankly, approving this project would have undercut that leadership."  The President astutely noted that “for years, the Keystone Pipeline has occupied . . . an overinflated role in our political discourse.  It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter.  And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others.”

Meeting in Dubai, the parties to the Montreal Protocol on Substances That Deplete the Ozone Layer agreed to use the Protocol to phase down use of hydrofluorocarbons (HFCs).  In addition to being ozone-depleting substances, HFCs are powerful greenhouse gases.  The “Dubai Path” agreed to by all 197 UN member countries (who also are parties to the Montreal Protocol) will result in a formal amendment in 2016 to formalize the phasedown.   When President Obama first met Chinese President Xi Jinping in California in June 2013, the two countries agreed to pursue an HFC phasedown.  It is estimated that HFC phasedown will avoid the equivalent of emissions of100 billion tons of carbon dioxide.  Once again the Montreal Protocol will prove to be an even more potent mechanism for combatting climate change than the Kyoto Protocol was.

Last week the government of Finland issued a license for the construction of a high-level nuclear waste repository on Olkiluoto Island.  The Posiva repository, which will be the first of its kind in the world, is designed to hold the waste for 100,000 years.  The radioactive waste will be buried inside iron-and-copper capsules 400 meters underground. The capsules will be surrounded by clay barriers and capped with rubble and cement.   The Posiva repository is designed to hold up to 6,500 metric tons of waste, less than a tenth of the 70,000 tons of high-level radioactive waste currently at nuclear power plants in the U.S., which produce another 2,200 tons of waste each year. 

In an unusual move, the management of Volkswagen sent a memo to its employees offering them amnesty if they tell what they know about the emissions testing scandal that has engulfed the company.  The company promised that employees who provide information would not be fired or hit with claims for damages if they come forward by the end of the month.  Jack Ewing & Julie Creswell, Seeking Information, VW Offers Amnesty to Employees, N.Y. Times, Nov. 13, 2015, at B1. The company conceded that it could not provide amnesty from criminal prosecutions, but it noted that cooperation “speaks in the employees favor,” based on past experience.

On November 8 President Ollanta Humala of Peru approved the creation of a 3.3 million acre national park.  The Sierra Del Divisor National Park, which is larger than Yosemite and Yellowstone combined, is the final link in the 67 million acre Andes-Amazon Conservation Corridor.  The creation of contiguous protected areas in different countries will enhance protection for wildlife and other species in the corridor. 

On November 18 the U.S and Cuba signed an agreement pledging cooperation on marine research and protection issues.  Under the agreement, scientists with the U.S. National Oceanic and Atmospheric Administration (NOAA) who are responsible for marine sanctuaries in the Florida Keys and the Texas Flower Garden Banks national sanctuary will work with scientists from Cuba’s Guanahacabibes National Park and Banco de San Antonio in the westernmost part of Cuba.  This agreement has been hailed as opening the door to more extensive environmental cooperation between the two countries in the future.

On November 9 New York Attorney General Eric T. Schneiderman announced that he had settled charges against Peabody Energy for failing to disclose to investors and securities regulators what the company knew about the risks of climate change.  Peabody will not pay any financial penalty, but it agreed to make more detailed disclosures about the impact of climate change risks on the coal company’s future financial prospects.  The action was brought pursuant to New York’s Martin Act that forbids companies from making false representations to investors or securities regulators.  I was quoted in the press as saying that security disclosure requirements can be used as “truth serum” for corporations. David Hasemyer, Peabody Settlement Shows Muscle of Law Now Aimed at Exxon, Inside Climate News, Nov. 10, 2015 (http://insideclimatenews.org/news/10112015/peabody-coal-climate-change-settlement-new-york-ag-exxon-subpoena-investigation).

SEER Conference, Justice Asked to Investigate Exxon on Climate, TransCanada Seeks Suspension of Keystone XL Decision, China Coal Use Underestimated, Senate Tries to Veto WOTUS Rule (by Bob Percival)

On Friday October 30, I spoke on a panel at the 23rd Annual Fall Conference of the ABA Section on Environment, Energy and Resources (SEER) Law, which was held in Chicago.  The panel addressed “Key Developments in Global Environmental Law that U.S. Lawyers Need to Know.”  It apparently was the first time the ABA held a panel on the topic of global environmental law.  Joining me on the panel were Charles DiLeva, Chief Counsel for Environmental and International Law at the World Bank, and Professor Erin Daly from Widener University Delaware School of Law.  I discussed the evolution of the concept of global environmental law and how globalization is blurring traditional distinctions between public and private law and domestic and international law.  Charles discussed issues confronting the World Bank and the ongoing climate negotiations, while Erin focused on environmental provisions in the constitutions of various countries.

Last week more than 40 NGOs signed a letter to Attorney General Loretta Lynch calling for the Justice Department to investigate whether ExxonMobil tried to mislead the public over the threat of global warming and climate change.  Democratic Presidential candidates and members of Congress also called for such an investigation, comparing ExxonMobil’s funding of climate change deniers to historic efforts by the tobacco companies to conceal the risks of smoking.  ExxonMobil denies the charges, claiming that it has long participated in serious scientific efforts and now believes that “there is a definite risk from climate change.”

On November 2, TransCanada asked the U.S. government to suspend any decision on its application to build the Keystone XL Pipeline.  Some observers believe that this is a strategic move taken in anticipation that President Obama will decide against approving the pipeline.  TransCanada apparently believes that a more favorable decision may be reached if it is delayed until after a new President takes office in 2017.  However, word from the White House is that President Obama will decide on Keystone XL before leaving office, despite TransCanada’s request to suspend a decision.

New data show that China has been using 17% more coal than previously reported.  The revised data indicate that China has been emitting much higher levels of greenhouse gases (GHG) than previously thought. The discrepancy is more than one year’s emissions from the country of Germany.  The revised data were published by China’s statistical agency without fanfare.  The International Energy Agency stated that the new data will require it to revise upward its estimates of China’s coal use and GHG emissions. Chris Buckley, China Burns Much More Coal Than Reported, Complicating Climate Talks, N.Y. Times, Nov. 4, 2015.

On Tuesday November 3 I presented a day-long workshop on environmental law to 23 Chinese government officials from Sichuan Province.  The workshop was organized by the Maryland China Initiative and held at the University of Maryland-College Park.  The officials were particularly interested in how U.S. environmental law deals with heavy metal pollution.

On Wednesday November 4, the U.S. Senate voted 53-44 to use the Congressional Review Act in an attempt to veto EPA’s rule clarifying the reach of federal jurisdiction under the Clean Water Act.  EPA adopted what is known as the “waters of the U.S.” (WOTUS) rule in an attempt to clarify the mess left when the Supreme Court split 4-1-4 on the issue in its 2006 Rapanos decision.  Three Democrats joined all but one Republican Senator (Susan Collins of Maine) in voting to veto the rule.  The vote is largely symbolic because President Obama has promised to veto the resolution if it passes Congress.  The Congressional Review Act has only once been used successfully to veto an agency regulation, OSHA’s ergonomics rule issued in the final days of the Clinton Administration in 2001.  The OSHA rule was vetoed by Congress, a veto approved by new President George W. Bush.  Because agencies rarely adopt rules that are opposed by the President, the Congressional Review Act (CRA) is likely to work to veto rules only when there is a change of administration from one political party to another.  One pernicious feature of the CRA is that if a congressional veto is successful the agency is barred from issuing a similar regulation without advance approval from Congress.  That might mean that EPA would be precluded from adopting any other rules to clarify the jurisdictional confusion that has persisted for nearly a decade thanks to the Supreme Court’s inability to agree.  

Pollution from Fires in Indonesia, Clean Power Plan Published, FERC Supreme Court Argument, Interior Cancels Arctic Leasing, ACOEL Annual Meeting (by Bob Percival)

Air pollution from fires set for landclearing in Indonesia has now become so bad that the country’s military is assisting in fighting the fires and evacuating people from the most affected regions.  A spokesperson for Indonesia’s Meteorology, Climatology and Geophysics Agency described the fires as “a crime against humanity of extraordinary proportions.”  It is estimated that the fires have cost the Indonesian economy more than $30 billion while causing more than 500,000 cases of respiratory infections. Kate Lamb, “Indonesian Fires Labelled a ‘Crime Against Humanity’ as 500,000 Suffer,” The Guardian, Oct. 26, 2015.  The fires caused Indonesian President Joko Widodo to cut short a state visit to the U.S. on October 26.   Satellites operated by NASA have detected more than 115,000 fires in Indonesia, which on 26 days have released more greenhouse gases than the entire U.S. economy.

On Friday October 23, EPA’s Clean Power Plan was published in the Federal Register.  At least 17 separate lawsuits challenging the rule were filed in the D.C. Circuit on the same day the rule was published.  The state of West Virginia, joined by 23 other states, was the lead plaintiff in the first lawsuit filed. Industry trade associations, unions, and the states of Oklahoma and North Dakota also filed suits.  Several of these states and groups prematurely filed law suits last year before the rule, which regulates emissions of greenhouse gases from existing powerplants, even was adopted in final form.  These cases were dismissed as premature, but the new round of litigation is timely filed. The initial battle will be over whether the court should stay the rules pending the outcome of the litigation, which ultimately is likely to reach the U.S. Supreme Court.

On October 14, more than twenty students from three Maryland environmental law classes attended an oral argument at the U.S. Supreme Court in an important case involving efforts to encourage more efficient use of energy.  The case, Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association, involves review of a FERC order encouraging utilities to implement demand-response programs to reduce consumption of electricity at peak hours.  The students came from my Environmental Law class at the University of Maryland Carey School of Law, my Special Topics in Environmental Law course for undergraduates at the University of Maryland College Park, and Professor Joanna Goger’s Environmental Law course in the university’s Environmental Science and Policy Program. Following the oral argument, the students gathered for lunch at my home on Capital Hill, a short walk from the Court.  Because Justice Samuel Alito has recused himself from the case it is possible that the Justices will split evenly 4-4, affirming the decision below that invalidated FERC’s order.

On October 16 the U.S. Department of Interior announced that it was cancelling auctions that had been scheduled for the next two years for oil drilling rights in the Chukchi and Beaufort Seas off the northern coast of Alaska.  Interior Secretary Sally Jewell cited market conditions and Shell’s abandonment of its Arctic drilling program.  The government also denied requests for lease suspensions from Shell and Statoil, which means that their existing 10-year leases will expire in 2017 and 2020. 

From October 15-17 I participated in the annual meeting of the American College of Environmental Lawyers (ACOEL) in New York City.  The meeting featured a field trip to the World Trade Center where we were hosted for lunch by Silverstein Properties, developer of the site.  Columbia Law Professor Mike Gerrard, who has served as environmental counsel for Silverstein, organized a wonderful seminar on the environmental features of the buildings being built on the site of the 9/11 terrorist attack.  Harvard Law Professor Jody Freeman gave a terrific keynote presentation on EPA’s Clean Power Plan and upcoming legal challenges to it.  At the closing of the conference on October 17 Assistant Attorney General John Cruden and I presented our joint review of the top environmental law cases of the year and our preview of cases that will be heard in the upcoming year. 

On October 22, students from my Global Environmental Law Seminar presented the results of their study of whether Maryland should join the 22 states that have an environmental provision in their state constitution.  The study was presented to a multi-denominational group of religious leaders who had gathered for a conference “Awake and Arise: Congregations Restoring Creation” sponsored by the Ecumenical Leaders Group and the Central Maryland Ecumenical Council.  The conference was held at St. Mary’s Seminary in Baltimore. The students found that there are two major types of environmental provisions in constitutions: policy directives, which often are designed to protect natural resources, and environmental rights provisions.  While many constitutional provisions have been deemed primarily symbolic and not self-executing, others have had a significant aspect on environmental protection.  Although the students’ report does not make a formal recommendation, it lays out several options that should be considered in starting a conversation over a possible Maryland amendment.

VW Scandal Deepens, India's Climate Plan, Shell Stops Arctic Drilling, EPA Lowers Ozone Standard, SE Asia Haze, TPP Agreement (by Bob Percival)

The scandal involving deliberate cheating on U.S. air pollution emissions tests by Volkswagen (VW) for its diesel vehicles continued to generate amazing revelations.  After interviewing former engineers for VW, a reporter for the New York Times revealed that the cheating started in 2008 after VW discovered that its new EA 189 line of diesel engines would not meet U.S. emissions standards.  Rather than stopping production of the new engines, VW decided to install software that would cheat on the emissions tests. Jack Ewing, Volkswagen Engine-Rigging Scheme Said to Have Begun in 2008, N.Y. Times, Oct. 4, 2015.

Even more amazing, the New York Times reports that VW later became so enamored with the success of its deceptive “green diesel” campaign that it demanded that EPA award it special fuel economy credits for its “green diesel” engines.  After EPA refused, VW protested by become the only major auto manufacturer to refuse to support the increase in U.S. fuel economy standards that President Obama announced in July 2011.  Aaron M. Kessler, Volkswagen Sought a Green Seal for its Diesel Cars, N.Y. Times, Oct. 6, 2015.  The widening VW scandal has led some observers to question whether other companies may be cheating on green energy tests.  Five years ago LG was caught with an energy-saving program in its refrigerators that operated only when the appliances were undergoing energy efficiency testing.  This has resulted in increased vigilance in testing procedures.  Jad Mouawad, Cat-and-Mouse Games with Regulators Not Confined to Cars, N.Y. Times, Oct. 10, 2015, at B1.

Although a strong consensus is building for severe punishment of VW, some question whether significant criminal penalties can be imposed.  Title II of the Clean Air Act, which governs mobile sources, has a specific provision for civil penalties, but not for criminal ones.  Former Congressman John Dingell, a long-time defender of the auto industry from Detroit, noted that civil penalties are “easier, speedier, quicker” and that “the cost to Volkswagen is going to be unbelievable.”  Dingell believes that the risk is “very real” that VW may go out of business. Amy Harder and Aruna Viswanatha, Volkswagen May Not Face Criminal Charges, Wall St. J., Sept. 29, 2015.  At a hearing before a House subcommittee on October 8, Michael Horn, president of VW’s American subsidiary, stated that he did not find out about the emissions cheating software until September 2015, though he had been aware since early in the year that VW was having problems with EPA.

On October 1 India became the last major country to submit to the United Nations its plan for mitigating climate change.  While India still refuses to commit to cap its emissions of greenhouse gases, it pledges to reduce the carbon intensity of its economy by 35% by 2030.  India also pledges eventually to produce at least 40% of its electricity from non-fossil fuel sources.

Two weeks ago Royal Dutch Shell surprised the world by announcing that it would end its oil exploration off the north coast of Alaska because of “disappointing results” from the exploratory wells it drilled in the Chukchi Sea.  For nearly a decade, Shell has been seeking to drill in Arctic waters off of Alaska, even as other major oil companies canceled their plans to do so, deeming it too risky to drill in the harsh Arctic environment.  It had been estimated that it would cost more than $70/ barrel to produce oil from Arctic offshore areas, making drilling there of little economic sense when oil prices linger in the $40s/barrel.

On October 1 EPA announced that it was taking final action to lower permissible levels of ozone in the ambient air.  EPA lowered the national ambient air quality standard (NAAQS) for ozone from 75 to 70 parts per billion (ppb).   Four years ago the White House blocked an EPA effort to propose a lower NAAQS for ozone because of fear that it would cause political controversy prior to the 2012 election.  Environmentalists were disappointed that EPA did not lower the standard to 60 ppb, which was what they believe the science justifies.  EPA estimates that compliance with the 70 ppb standard will cost $1.4 billion/year in 2025, while producing annual benefits worth $2.9 to $5.9 billion. Nevertheless, industry groups, which had been running deceptive ads praising the existing NAAQS they once opposed, criticized EPA’s action.

On October 9 the U.S. Court of Appeals for the Sixth Circuit by a 2-1 vote issued a nationwide stay of EPA’s “waters of the U.S.” rule clarifying the reach of federal jurisdiction under the Clean Water Act.  Brent Kendall and Amy Harder, Court Puts New Water Rule on Hold, Wall St. J., Oct. 10-11, 2015, at A3.  Curiously, the court did so without even finding that it had subject matter jurisdiction over challenges to the rule.  The two judges in the majority argued that it would be helpful to put everything on hold so that regulated entities would not have to incur costs complying with the rule, though such costs would only be incurred if someone wanted to discharge material into a water body over which federal jurisdiction is uncertain.  The court majority did say the following in its order: “the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.” 

Fires from illegal slash-and-burn operations in Indonesia have again cloaked southeast Asia in a choking haze.  Thousands of schools have been closed, flights have been grounded, and levels of air pollution have soared.  It is estimated that more than 25,000 security forces are fighting the fires, particularly on the islands of Sumatra, Borneo, and Sulawesi. The haze is estimated to have caused billions of dollars of damage in Indonesia, Singapore, Malaysia, Thailand, and Vietnam. Ben Otto, Smoky Haze Costing Southeast Asia Billions of Dollars, Wall St. J., Oct. 9, 2015.

On October 5, U.S. negotiators announced that they had reached agreement on the largest regional trade agreement in history, the Trans-Pacific Partnership (TPP).  The 12 Pacific Rim countries that agreed to the accord account for nearly 40% of the global economy.  Environmentalists praised the provisions of the TPP that make it easier to crack down on trade in illegally harvested timber and endangered wildlife, but they are skeptical of the TPP’s dispute resolution procedures that may make it easier for businesses to challenge environmental regulations.  In the final days of the negotiations, the parties agreed specifically to bar the tobacco industry from using the dispute resolution mechanisms to challenge tobacco regulations.  While the World Wildlife Fund has praised the agreement, other environmental groups argue that it will make it more difficult for countries to regulate emissions of greenhouse gas emissions.

IUCN Colloquium, Volkswagen Emissions Scandal, Pope Francis & Xi Jinping Visit U.S., Global Air Pollution Toll, Lahore Climate Decision (by Bob Percival)

It has been two weeks since I returned from Jakarta where I joined three of my former students in making presentations at the IUCN Academy of Environmental Law’s 13th annual colloquium at Atma Jaya University.  The theme of this year colloquium was “Forest and Marine Biodiversity.” In my presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law,” I explored the impact of Marsh’s 1864 book The Earth as Modified by Human Action, which helped launch a global movement to establish protected areas. Maryland 2L Renee Lani presented a paper on how the Lacey Act has been used to discourage importation of illegally harvested timber. Maryland 3L Maryann Hong discussed the impact of free trade agreements on global tobacco control efforts.  Taylor Kasky (Maryland Class of 2015) considered the impact of trade liberalization on global agriculture and food security in her presentation.

Rick Beckel, a 2015 graduate of my alma mater Macalester College, who served as a Global Environmental Justice Fellow at the law school this summer, made a presentation in which he analyzed how the concept of ecosystem services can be used to enhance efforts to preserve biodiversity. The Colloquium featured several notable speakers such as former International Court of Justice Judge Christopher Weeramantry, former Philippine Supreme Court Chief Justice Hilario Davide, Jr. and current Brazilian Supreme Court Justice Antonio Benjamin.

The most stunning news of the last two weeks has been the announcement by the U.S. Environmental Protection Agency (EPA) that Volkswagen installed software on its diesel vehicles that disabled their pollution control devices except when they were being tested.  After initially acknowledging that this software was installed on 482,000 vehicles Volkswagen sold in the U.S., the company later admitted that it was installed on 11 million vehicles worldwide.  This revelation led to the resignation of the company’s CEO and universal condemnation of the company.  Because the Clean Air Act provides for civil penalties of $37,500 per vehicle, the fine in the U.S. alone could be as high as $18 billion. But this is clearly a case where severe criminal penalties are warranted against the executives involved in this deception, which resulted in much higher levels of pollution from vehicles Volkswagen was touting as “green diesels”.  Title II of the Clean Air Act that governs mobile sources provides for civil penalties and it allows EPA to apply an administrative penalty of up to $200,000 that can be levied in a greater amount with the consent of the Attorney General.  The catch-all criminal penalty provisions of §113 do not specifically refer to violations by mobile sources, but they cover making false material statements, representations or certifications.

Last week Pope Francis and Chinese President Xi Jinping visited the U.S.  On September 24 Pope Francis addressed a joint session of Congress. Quoting from his encyclical Laudato Si he called “for a courageous and responsible effort to ‘redirect our steps’ and to avert the most serious effects of the environmental deterioration caused by human activity.”  He expressed the conviction “that we can make a difference and . . . that the United States – and this Congress – have an important role to play.”  President Obama hosted a state dinner for Xi Jinping on September 25.  The Chinese President announced that China would establish a nationwide cap-and-trade program for carbon emissions, based on the seven pilot emissions trading programs that the country has established in major Chinese cities.

In a study published in the Journal Nature on September 16, a group of epidemiologists estimates that outdoor air pollution, primarily PM2.5, causes 3.3 million premature deaths worldwide annually.  J. Lelieveld, J.S. Evans, M. Fnais, D. Giannadaki & A. Pozzer, The Contribution of Outdoor Air Pollution Surces to Premature Mortality on a Global Scale,525 Nature 367 (2015), published online at: http://www.nature.com/nature/journal/v525/n7569/full/nature15371.html. The scientists warn that if present trends continue 6.6 million people will die annually from air pollution by the year 2050.

On September 14 Judge Syed Mansoor Ali Shah of Pakistan’s Lahore High Court’s Green Bench found that the Pakistan government was not doing enough to combat climate change, which he described as “the most serious threat” faced by the country.  He ordered all of Pakistan’s relevant ministries to appoint point persons to deal with the issue and he established a Climate Change Commission to ensure that the government implement its climate commitments.  The court ruled in a public interest litigation (PIL) case brought by a farmer, Ashgar Leghari.

Canadian Supreme Court Rules Against Chevron in Ecuador Case, Dutch Court Holds Drillers Liable for Earthquake Damage, Global Tree Census, IUCN AEL Colloquium (by Bob Percival)

On September 4 the Supreme Court of Canada rejected Chevron’s claim that its Canadian assets cannot be used to satisfy a $9.5 billion judgment against it for oil pollution in Ecuador.  By a vote of 7-0, the Court upheld a December 2013 decision by the Ontario Court of Appeals rejecting Chevron’s claim that its Canadian subsidiary was a distinct corporate entity whose assets could not be used to satisfy a judgment against the parent corporation (see Dec. 22, 2013 blog post).  In the decision below the Court of Appeals famously had said: “Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. ‘We’re going to fight this until hell freezes over.  And then we’ll fight it on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction.  At this juncture, Ontario is that jurisdiction.” It is estimated that Chevron has $15 billion in assets in Canada.  

This decision is very significant because it rejects the corporate shell game defense that Chevron so far has used successfully in Argentina and Brazil to resist enforcement of the judgement.  The case now returns to the Ontario trial court where Chevron likely will claim that the Ecuador court’s judgment was obtained through fraud.  A federal district court in New York has agreed with Chevron’s claim in a RICO suit brought by the oil conglomerate, but that decision currently is under review by the U.S. Court of Appeals for the Second Circuit.

On September 2 a Dutch court in Assen held liable a joint venture between Royal Dutch Shell and Exxon Mobil (known as NAM) for declining property values caused by earthquakes related to natural gas production at the Gronigen field.  Twice this year the Dutch government has ordered reductions in production at the field because of the earthquakes.  The Dutch Safety Board, an independent organization funded by the Dutch government, previously had determined that the companies and Dutch regulators had failed adequately to consider the danger of earthquakes from natural gas production in the field. It is believed that the damages due homeowners could run into the billions of euros.  Reuters, Dutch Court Finds Gas Venture Liable for Earthquake Claims, N.Y. Times, Sept. 3, 2015, at B2.

On September 3 Nature magazine published the first comprehensive census of the world’s population of trees. T.W. Crowther, et al., Mapping Tree Density at a Global Scale, 1038 Nature 14967 (2015), online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature14967.html#close.  Using both sophisticated satellite imaging and on the ground tree counting, the researchers estimated that the planet has approximately 3.04 trillion trees, far more than previous estimates. “Of these trees, approximately 1.39 trillion exist in tropical and subtropical forests, with 0.74 trillion in boreal regions and 0.61 trillion in temperate regions.”  The study estimates that more than 15 billion trees are cut down each year, and that the global number of trees has fallen by approximately 46% since the start of human civilization.

Last week climate negotiations concluded in Bonn, Germany in preparation for the all-important COP-21 meetings in Paris in December.  The tenth part of the second session of the Ad Hoc Working Group on the Durban Platform for Advanced Action (ADP) was held from August 31-September 4.  As usual, some progress was made, though several difficult issues remain to be worked out.  The World Resources Institute reported the following: “While progress was uneven at times, the Bonn negotiators identified the most essential issues and began crafting a coherent architecture for the agreement. It was as though they were in a garage attempting to build an engine (battery powered of course), with parts lying about. Their task was to distinguish the various pieces, put them into clear categories, and then figure out how they should be ordered to build the engine. It’s a work in progress. The pieces are coming together, though you can’t see exactly what the final product will look like at this point.”

I currently am in Jakarta, Indonesia to participate in the 13th Annual Colloquium of the IUCN Academy of Environmental Law.  The theme of this year’s colloquium, which is being hosted by the Atma Jaya Catholic University of Indonesia, is “Forest and Marine Biodiversity.”  I will be giving a presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law.”  Two Maryland law students and a recent Maryland grad also will be presenting papers at the Colloquium, which includes environmental law experts from nearly 50 countries.

Split Decisions over EPA Water Rule, Australian Premier Seeks to Limit Environmental Lawsuits, Shell Suspends Arctic Drilling Due to Weather (by Bob Percival)

Classes started last week at the University of Maryland Carey School of Law.  I have a wonderfully diverse group of students in my flagship Environmental Law survey course.  This year for the first time I also will be teaching a Special Topics course in Environmental Law for undergraduates on our College Park campus.  That course will start tomorrow.

In the last few weeks three federal district courts in the U.S. have weighed in on legal challenges to EPA’s new rule clarifying the reach of federal jurisdiction over “waters of the United States.”  EPA is attempting to clear up enormous confusion that has prevailed since the U.S. Supreme Court split 4-1-4 in the Rapanos v. U.S. cases in 2006.  In that decision Chief Justice Roberts expressly invited EPA to issue new rules clarifying the reach of its jurisdiction and indicated that they would be entitled to deference under the Court’s Chevron doctrine.  On August 26 Judge Irene Keeley of the Northern District of West Virginia dismissed a lawsuit challenging the new rule on the grounds that it should have been brought in the U.S. Court of Appeals. On August 27 Judge Lisa Wood of the Southern District of Georgia dismissed another lawsuit challenging the rules on the same rationale.  However, on August 27 Judge Ralph Erickson of the federal district court for North Dakota issued an injunction blocking the rules from taking effect in the 13 states who has sued in his court.   The Clean Water Act gives the courts of appeals jurisdiction to hear challenges to “any effluent limitation or other limitation”.  Judges Keeley and Wood declared that the EPA rules fall into the category of “other limitation,” but Judge Erickson disagreed because it “places no new burden or requirements on the States.” Why he went on to find that it would cause the states irreparable harm justifying an injunction is hard to understand.

As reported in this bog on August 8, on August 6 an Australian court reversed approval of the Carmichael Coal Mine and Rail Project that environmentalists argued will threaten the Great Barrier Reef.  The decision was based on the Environment Department’s failure to consider impacts on endangered reptiles in the vicinity of the project.  Angered by the decision, Prime Minister Tony Abbott is now pushing legislation to prevent judicial review of similar lawsuits by environmentalists.  He is arguing that otherwise Australia will be paralyzed by “lawfare,” a curious new term that he claims characterizes the U.S. legal system where environmentalists are able to use litigation to tie up the government in knots.

On August 19 I was interviewed live on the Australian Broadcasting Company’s nightly news program “The World.”  Anchor Beverley O’Connor interviewed me about the decision by the U.S. government to allow Royal Dutch Shell to drill for oil in the Chukchi Sea off the northern coast of Alaska.  The interviewed is online at: http://iview.abc.net.au/programs/world/NU1512H165S00#playing, but unfortunately the link apparently is only viewable from Australia.

Last week Shell suspended its drilling in the Arctic due to an impending storm that was predicted to bring high winds expected to produce very heavy seas. Next week President Obama will visit Alaska to emphasize the impact climate change is having on that state.

On August 17, Norway’s sovereign wealth fund announced that it would exclude four companies from its investment portfolio because they were insufficiently green.  The fund barred investments in South Korea’s Posco and Daewoo International Corporation and Malaysia’s IJM Corporation Bhd. and Genting Bhd.  The fund explained that it made the decisions “due to an unacceptable risk that the companies are responsible for severe environmental damage as a result of conversion of tropical forest into oil palm plantations.” These companies join a list of more than 60 other companies who have been placed off limits for investments by the fund for reasons including that their activities cause environmental damage or that they produce land mines, tobacco, nuclear weapons, or violate human rights.

On Thursday I leave for Jakarta, Indonesia, where I will be participating in the 13th annual Colloquium of the IUCN Academy of Environmental Law from September 7-12.  Two Maryland law students, a recent grad, and my summer global environmental justice fellow will be presenting papers along with me at the conference.  We also are bringing Maryland law filmmaker John Brosnan to produce a film of the conference.

China Chemical Conference, Tianjin Disaster, Japan Restarts Reactor, Former BP Head Criticizes Shell Arctic Drilling (by Bob Percival)

I am now back in the U.S. after my latest trip to China.  On Monday August 10 I was a speaker at a conference on “Chemical Regulation in China and the U.S. “ at Shanghai Jiaotong University’s KoGuan School of Law.  I made an hour-long presentation about the history of chemical regulation in the U.S. and the progress of legislation to update the Toxic Substances Control Act.  Wu Jian, who is responsible for chemical regulation for Shanghai’s Environmental Protection Board, then discussed the state of chemical regulation in China.  Participants in the conference included regulatory affairs managers from 22 chemical companies, including multinational companies such as Dow, Corning, BASF, Fuji and Syngenta.  Following our presentations, there was a frank and lively discussion session that focused on enforcement problems in China (e.g., a typical complaint was that MEP was enforcing the regulations - one company official asked Mr. Wu what a company should do when it becomes convinced that a competitor is using a chemical that has been imported illegally).

After the Q & A at the conference brought home how poorly Chinese chemical control regulations were enforced in practice, I was not surprised on Thursday morning to learn of the explosions caused by illegally stored chemicals that killed more than 100 people in Tianjin.  All the regulations requiring listing and reporting of chemicals proved ineffective because the companies storing extremely toxic chemicals did not comply with them.  Chinese friends suspect that corruption is the main explanation for the disaster.  Ironically, the disaster occurred the day after China’s Ministry of Environmental Protection had proudly reported that the number of environmental emergencies in China had fallen from 63 in the first six months of 2014 to 48 in the first six months of 2015.

In yet another depressing indication that China’s upgrade of its environmental laws has not had its intended effects, the Chinese government has ordered restrictions on vehicle use and factory shutdowns beginning on August 20 to reduce pollutants that will be in the air on September 3 when Chinese President Xi Jinping presides over a parade to celebrate the 70th anniversary of the end of World War II.   One would hope that as environmental law matures in China, the expedient of temporary closings polluting factors would no longer serve as a major pollution control strategy.

Despite strong local opposition, Japan last week restarted the first nuclear powerplant in the country since the meltdown at Fukushima Daiichi in March 2011.  The Kyushu Electric Power Company restarted one reactor at its Sendai nuclear powerplant in southwestern Japan.  For the last two years all of  Japan’s nuclear powerplants have been shut down as the government trieda to absorb lessons from the Fukushima Daiichi disaster. Among the protesters at the Sendai site was Naoto Kan, prime minister at the time of the disaster, who now has become an anti-nuclear activist.

Last week Australia announced its pledge to reduce greenhouse gas emissions in the runup to COP-21 in Paris in December.  The government promised to reduce emissions by between 26 and 28% from 2005 level by the year 2030.   The government announced thtat it plans to meet this goal without reinstating the carbon tax that it repealed.

Last week Lord Browne, former CEO of BP, harshly criticized Shell Oil for its risky Arctic oil drilling activities. In an interview with the BBC, he argued that drilling in the Arctic was too risky and too costly and would damage Shell’s long-term reputation.  Lord Browne noted that the Arctic environment is “much more fragile than other environments.” As the price of oil plunged to just above $40/barrel last week, Shell’s Arctic drilling looks increasingly foolish. 

Last week a coalition of red states filed suit against EPA’s Clean Power Plan, even though it had not yet appeared in the Federal Register, rendering their lawsuits once again premature.  The petitioners asked the panel of the D.C. Circuit that dismissed their initial lawsuits as premature to issue an order staying the EPA regulations.  If such an order were granted, it would create a huge incentive for filing frivolous, premature lawsuits in an effort to forum shop for a sympathetic panel of judges.  olous, premature lawsuits in an effort to forum shop for a sympathetic panel of judges. 

Russia Makes Vast Arctic Claim, Aussie Coal Project Delayed, China Steps up Enforcement, Shanghai Children's Lead Levels Plunge, China Trip (by Bob Percival)

In a new submission to the United Nations Commission on the Limits of the Continental Shelf, the Russian government on August 3 claimed sovereignty over more than 460,000 miles of the Arctic.   A similar bid by Russia in 2001 was rejected for insufficient evidence.  Russia’s claim, which is based on its contention that its continental shelf extends beyond the North Pole, is rejected by the other countries with territory bordering on the Arctic.  In 2007 a Russian submarine planted a flag on the seabed under the North Pole.

As reported last week, EPA announced its final rules for controlling greenhouse gas (GHG) emissions from existing powerplants on August 3.  Known as the Clean Power Plan, the regulations are designed to reduce GHG emissions from this sector by 32% over 2005 levels by 2030.  I gave five press interviews on the regulations and wrote an online oped supporting them.

On August 6 an Australian court reversed approval of the Carmichael Coal Mine and Rail Project that environmentalist argue will threaten the Great Barrier Reef.  The decision reportedly was based on the Environment Department’s failure to consider impacts on endangered reptiles in the vicinity of the project.  The decision is expected to delay, but not necessarily kill, the $12.1 billion project by the Indian firm Adani. 

The Chinese Ministry of Environmental Protection (MEP) reported last week on environmental enforcement during the first six month of 2015. MEP reported that it had shut down 9,300 companies and suspended work at another 15,000 during this six-month period.  Nearly 300 companies were fined a total of 236 million RMB ($38 million).  Managers of companies were prosecuted in 740 cases and 57 government officials were punished for enforcement failures.   Beginning on January 1 new amendments to China’s basic environmental law took effect that were designed to improve enforcement.  The amendments authorize public interest lawsuits and provide for daily penalties for violators.  The Qingdao Maritime Court recently agreed to hear a public interest lawsuit against ConocoPhillips and China National Offshore Oil for an oil spill in Bohai Bay that occurred in 2011.  The lawsuit was brought by the China Biodiversity Conservation and Green Development Foundation.  Previously the court had refused to accept a lawsuit by the All China Environment Federation on behalf of fisherman harmed by the spill. 

Because enforcement in China is largely left to local officials, China’s small Ministry of Environmental Protection (MEP) summoned the leaders of ten cities to encourage them to step up enforcement.   Some companies have pushed back against enforcement.  Claiming that local enforcers failed to follow proper procedures, the Shaanxi Coal Chemical Energy Company in Xianyang has refused to pay 15.8 million RMB ($2.5 million) in fines,  Zheng Jinran, Companies, Officials Punished for Failure to Control Pollution, China Daily, Aug. 6, 2015, at 1. 

The Supreme People’s Procurate (SPP) last week announced that, as part of an effort to step up criminal enforcement of food safety laws, it will target corrupt officials who take bribes to protect violators.  The SPP reported a 136% increase in arrests of food safety violators in the last year.

A two-year study of 2,144 chlidren in the greater Shanghai area found a 75% drop in lead levels in the children's blood during the last 20 years.  The study, conducted by researchers from China’s Ministry of Education and the Shanghai Key Laboratory of Children’s Environmental Health at Shanghai Xinhua Hospital, credited the phaseout of gasoline additives in 1997 with the dramatic reduction.  Average blood lead levels plunged from 83 micrograms per liter to 20 microgram per liter.  However, these levels are still above the 10 micrograms per liter average found in children in the U.S.  Cai Wenjun, Lead Levels in Kids Drop 75% in 20 Years, Shanghai Daily, Aug. 6, 2015, at 5.  In the last two weeks levels of ozone have replaced PM2.5 as the major air pollution concern in Shanghai.  At one point they reached a level of 246 micrograms per cubic meter of air at one point, far above the World Health Organization’s recommended limit of 100 micrograms per cubic meter.

I am currently in Hong Kong, which experienced its hottest day in history yesterday when temperatures hit 97 degrees Fahrenheit.  Air pollution levels were unusually high, which authorities attributed to unusual air circulation caused by Typhoon Soudelor.  Today I visited the June 4 Museum in Kowloon which documents the Tiananmen Square Massacre on June 3-4, 1989.  The Hong Kong press reports that when Taylor Swift’s new album 1989 goes on sale on the mainland the authorities may require her to delete “1989 T.S.” from the label for fear that it will be a reminder of those tragic events.

EPA Finalizing Clean Power Plan, Chesapeake Sea Grasses Rebound, Price Plunge Slashes Oil Company Earnings, Antarctica Talk & China Trip (by Bob Percival)

The U.S. Environmental Protection Agency’s long-awaited Clean Power Plan to control emissions of greenhouse gases (GHGs) from existing power plants will be issued in final form on Monday August 3.  Since EPA proposed the regulations in June 2014 it has received more comments on them that it has ever received on any proposed regulations in the agency’s 45-year history.  The final regulations include some significant changes from the agency’s initial proposal, indicating that EPA listened carefully to the avalanche of comments it received.  The regulations are being issued pursuant to §111(d) of the Clean Air Act, which allows the agency to require states to regulate a pollutant for which it has established a new source performance standard if it is not already regulated as a criteria air pollutant with a national ambient air quality standard (NAAQS) or as a hazardous air pollutant subject to a national emissions standard for hazardous air pollutants (NESHAP). EPA is setting emissions targets for states that in the aggregate will reduce GHG emissions by 32 percent from 2005 levels by 2030.  

The agency has removed from the target-setting process the fourth of its four proposed “building blocks” - demand-side energy efficiency improvements.  This should eliminate some of the most vociferous legal objections to the regulations that contended that the agency had no authority to include this in the regulations.  EPA also increased the flexibility afforded states, placing more emphasis on regional, rather than individual state, calculations of emissions rates.  It also has delayed for two years from 2020 to 2022 the initial start date for compliance by power plants, which will make it more difficult for companies to argue that they face irreparable harm if the regulations are not stayed.  Initial state plans will be due in September 2016, but states that provided a reasonable explanation for needing more time can obtain extensions to September 2018.  At the same time EPA is keeping incentives for early action by states to reduce emissions by investing in renewable energy sources.  Although Senate majority leader Mitch McConnell has been urging states to “just say no” to EPA, the Washington Post reports that most states, including McConnell’s home state of Kentucky, are planning to comply with the regulations.  Joby Warrick, Outrage Over EPA Emissions Regulations Fades as States Find Fixes, Washington Post, July 23, 2015.  EPA’s regulations include a Federal Implementation Plan (FIP) for states that refuse to submit their own plans, but it is eschewing use of the sanctions provided under the Clean Air Act for states that fail to comply, such as the withholding of federal transportation funds.  Thus, it will be very hard for opponents to argue that the regulations trample federalism concerns.

There will be fierce rhetoric attacking EPA’s regulations, as now routinely occurs whenever the agency adopts national regulations.  Republican presidential candidate Marco Rubio, who two years ago said that EPA was “carpet bombing” the economy, was already on TV today arguing that the rules would be “catastrophic” for single moms.  But, revealingly, he revisited the former talking point that China is doing nothing to control its emissions, which now could not be more false.  There also will be a multiplicity of legal challenges to the rules.  Industry groups were so eager to challenge them that they sued EPA last year before the rules were even issued.  The industry lawsuits were tossed out of court last year as being premature.  With the changes EPA made between its proposed and final rule, the agency is on even firmer legal footing, despite what its critics will say.

On July 30 officials from Maryland and Virginia announced that for the second year in a row Chesapeake Bay sea grasses rebounded significantly.  A survey conducted by the Virginia Institute of Marine Sciences found that Chesapeake sea grasses covered 27% more of the Bay bottom in 2014 than in  2013. The survey found that underwater grasses covered 75,835 acres of the Bay, an increase from 59,711 acres in 2013.  The Bay-wide restoration goal is 185,000 acres. 

Major multinational oil companies reported last week that their earnings had fallen to the lowest levels in a decade, due to the low price of crude oil.  Several companies also announced layoffs and sharp cuts to their capital spending, reflecting a conclusion that lower oil prices are here to stay for an extended period. ExxonMobil reported a 49% decline in profit, which sent its stock tumbling.  Chevron’s stock also plunged after the company reported that its profit dropped 89%.  Crude oil prices are hovering just above $50/barrel, less than half the level that prevailed last year.  This makes it all the more puzzling why Royal Dutch Shell is continuing to pursue drilling in the Arctic where it will not be profitable without oil prices above $75/barrel.  

On Tuesday July 28 I gave a “Hot Topics” lecture at Vermont Law School on “Environmental Law in the ‘Last Place on Earth’.”  The lecture compared the unique legal regime that protects the environment in Antarctica with the situation in the Arctic, where a rush is on to development.  I noted the New York Times story that appeared last week (Ian Urbina, A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes, N.Y. Times, July 28, 2015) that reported how the private group Sea Shepherd hunted a vessel caught illegally fishing in Antarctica for 110 days before it was scuttled by the Spanish criminal syndicate that owned it. This represents another example of emerging action by NGOs to assist with the enforcement of environmental law, a significant element in the growth of global environmental law. 

On July 30 Professor Zhao Huiyu of Shanghai Jiatong University’s KoGuan School of Law gave a “Hot Topics” lecture at Vermont Law School on China’s new public interest litigation law.  She presented some fascinating new data on how the law is operating as Chinese courts accept public interest cases that they previously would have refused.  Professor Zhao and I left Vermont to drive to Boston after the final class of our Comparative U.S./China Environmental Law course on Thursday afternoon.  Even though her flight from Boston back to Shanghai was not until very early Friday morning, it left before mine.  I had a flight back to D.C. on the 9pm Thursday U.S. Air shuttle.  The flight left more than 3 hours late after midnight, flew half way to D.C., and then was ordered to return to Boston because Reagan National Airport had closed.  I spent the night on a bench at Logan Airport because the hotels were all full and then returned to D.C. on the 8AM shuttle on Friday morning. On Tuesday I will fly to Shanghai to complete my service for the year as a high level visiting foreign expert.