Nile Water Agreement, Arctic Sea Ice at Record Low, Foreign Shale Projects Plunge, IARC Labels Organophosphates (by Bob Percival)

While I was in the Middle East, several noteworthy developments occurred that are relevant to global environmental law. These and other developments are mentioned below.

On March 23, the leaders of Egypt, Ethiopia, and Sudan signed an agreement governing the sharing of water from the Nile River, which flows through each of the countries.  Egypt previously had voiced concern that Ethiopia’s construction of the Great Ethiopian Renaissance Project, a $4.8 billion hydroelectric dam project, would unfairly reduce the amount of water flowing to it from the Nile.  Some Egyptian legislators had even threatened military action if Ethiopia did not stop construction of the dam, which commenced in 2011.  The new agreement appears to resolve these concerns by ensuring that Ethiopia will only gradually fill the area behind the dam when it is completed in 2017 while enabling Egypt to purchase cheap electricity generated by the project.

The NASA-supported National Snow and Ice Date Center reported last week that Arctic sea ice hit a record low this year (http://nsidc.org/arcticseaicenews/).  At its peak on February 25 the area covered by sea ice was only 5.61 million square miles, 50,000 square miles less than the previous low established in 2011.

On March 19 President Obama signed an executive order directing federal entities to reduce their emissions of greenhouse gases (GHGs) by 40% below 2008 levels by 2025.  The executive order also establishes a goal that 30 percent of the energy used by the executive branch will be generated from renewable sources.  Obama unveiled the executive order at a forum for federal suppliers and where several private companies announced their own voluntary programs to reduce their emissions of GHGs. A fact sheet on the executive order and the private commitments secured by the administration is available online at: https://www.whitehouse.gov/the-press-office/2015/03/19/fact-sheet-reducing-greenhouse-gas-emissions-federal-government-and-acro. 

The plunge in oil prices and environmental opposition has brought a halt to projects to release oil and gas from shale formations outside of the U.S. Justin Scheck & Selina Williams, Shale Push Falters Outside U.S.,” Wall St. J. (Europe), March 20-22, 2015, at 15.  Royal Dutch Shell, Exxon Mobil and Chevron have stopped nearly all of their fracking projects in Europe, Russia, and China. France banned fracking in 2011 and revoked licenses that had been awarded to Total and GDF Suez.  Germany has imposed a moratorium on fracking.  Conoco Phillips is still working on fracking projects in Poland where Chevron, Exxon and Total pulled out after achieving poor results. Chevron is drilling in Argentina and seven wells have been drilled in shale formations in the United Kingdom, one of which used frackinG.

On March 27 the government of Mexico announced that the country plans to reduce its emissions of GHGs by 22% by the year 2030.  Under the terms of the commitment, Mexico’s emissions will peak by 2026 and be 22% below “business as usual” levels in 2030.  Mexico currently is the 10th largest emitter of GHGs.

On March 20 The Lancet published the results of an assessment by 17 experts from 11 countries convened by the International Agency for Research on Cancer (IARC) of the carcinogenicity of five organophosphate pesticides.  Kathryn Z. Guyton, et al., “Carcinogenicity of tetrachlorvinphos, parathion, malathion, diazinon, and glyphosate,” The Lancet, March 20, 2015 (http://www.thelancet.com/journals/lanonc/article/PIIS1470-2045(15)70134-8/abstract). The experts labeled two of the chemicals (tetrachlorvinphos and parathion) as “possible carcinogens” (class 2B) and three of the chemicals (glyphosate, malathion and diazinon) as “probable carcinogens” (class 2A). Because glyphosate is used in herbicides with annual sales of $6 billion, includoing Monsanto’s popular “Roundup” weed-killer, IARC’s classification decision has drawn fury from Monsanto, which notes that it conflicts with the conclusion of a four-year evaluation for the EU that concluded that glyphosate was “unlikely to pose a carcinogenic risk to humans.”

March 25 Oral Argument in U.S. Supreme Court on EPA Mecury & Air Toxics Standards (by Bob Percival)

I returned from the Middle East on Monday.  Daily student blog posts from our environmental field trip to study water issues are available at my parallel blog (www.globalenvironmentallaw.com).

Yesterday I attended the Michigan v. EPA oral argument in the U.S. Supreme Court with a group of my students (who got in line before 6AM in order to get seats). The case involves a challenge to EPA's historic regulations to limit mercury emissions from power plants.  The specific question the Court is considering is whether EPA is required to consider costs when it decides to regulate emissions of hazardous air pollutants from powerplants.  The statute requires EPA to regulate these pollutants if it determines regulation to be “necessary and appropriate.”  Representatives of old, coal-fired powerplants argue that “appropriate” requires EPA to base its regulatory determination on cost-benefit analysis.   As usual, Justice Kennedy will be the key to the outcome.  His opening line that “’appropriate’ is a capacious term” and his pointed question to the industry petitioners asking whether cost-benefit analysis is required whenever the word “appropriate” appears in the statute, suggest he is persuadable by the government.

Both Kennedy and Chief Justice Roberts seemed concerned about the cost of the regulations.   The Chief seemed dismissive of EPA’s conclusion that the regulation would have overwhelming net benefits because most of them were “co-benefits” derived from reductions in other pollutants. He suggested this could represent an illegitimate “end run” by EPA around other restrictions in the Act. 

Paul Smith, who clerked at the Court the same Term I did, was terrific.  He was particularly effective in responding to Justice Kennedy’s question about cost, and indicated that most of the costs already had been incurred by utilities who plan to comply with the rule.  It was so refreshing to see someone representing industry groups defending a n EPA regulation in order to keep a level playing field.  While this is useful for EPA in this case, it may add a bit of force to the industry argument in the Murray Energy case (being argued in the D.C. Circuit on April 16) that given long lead times for capital projects courts should intervene even before regulations (the Clean Power Plan regs) are issued.  The panel that has been assigned to hear that case (Judges Henderson, Griffith and Kavanaugh) portends a potentially surprising (even if temporary) defeat for EPA in what should be an easy case because there is no final agency action yet.

Justices Scalia and Alito clearly have bought into the Tea Party rant that EPA can do no right (no surprise). At several points in the argument yesterday Justices Kagan and Sotomayor were directly (and effectively) debating them.  Justice Scalia tried to characterize an argument Justice Breyer made as an effort to rescue EPA by concocting an entirely new argument (which it was not).  The editors of the Wall Street Journal seized on Scalia’s claim in an editorial today (“Surprise at the Supreme Court: Justice Breyer Pulls a Fast One to Rescue EPA’s Mercury Rule”), which is online at: http://www.wsj.com/articles/surprise-at-the-supreme-court-1427325513?mod=wsj_review_&_outlook).  The Journal yet again uses its editorial page to file its own post-argument brief, here trying to convince Kennedy’s chambers that EPA is so clearly wrong legally that Justice Breyer had to try to rescue them.

After rejecting other creative assaults on the Clean Air Act in American Trucking and EME Homer City, the Supreme Court would be venturing into new territory if it rules against EPA.  As a practical matter, however, it would not raise a significant legal bar to EPA reissuing the regulations.  But it would delay them for several years and reward the industry laggards who wish to keep the aging, big dirties operating as long as possible.

Global CO2 Emissions Stop Rising in 2014, Surge in Chinese Environmental Cases, Fourth Anniversary of Fukushima Disaster, Middle East Trip (by Bob Percival)

Global emissions of carbon dioxide (CO2) stopped increasing last year, according to the International Energy Agency (IEA).  This was the first time in 40 years that a halt in the growth of CO2 emissions occurred in the absence of a global economic decline.  CO2 emissions remained at a level of 32.3 gigatonnes, the same as in 2013, despite a 3% increase in global economic growth.  The IEA described the development as “a real surprise” that shows that efforts to control greenhouse gas (GHG) emissions may have been more successful than anticipated.  Growing efficiency in the use of energy in developed countries and China’s slower economic growth contributed to the halt in rising CO2 emissions.  Pilita Clark, Climate Boost as CO2 Emissions Growth Grinds to a Halt, Financial Times, March 13, 2015, at 1. Last year China’s consumption of coal declined by 2.9%, according to government statistics. This development may improve the prospects for a new climate accord being reached in December when representatives of the nations of the world meet in Paris for the next climate Conference of the Parties.

The Supreme People’s Court of China reported a surge in environmental cases filed in the country’s courts in 2014.  In its annual report released on March 12, the Court said that 16,000 cases involving environmental violations were filed last year, an 850% increase over 2013.  A total of 3,331 cases seeking civil damages for pollution were filed in 2014, an increase of more than 50% from 2013.  Te-Ping Chen, China Sees More Cases Against Polluters, Wall St. J., March 13, 2015, at A11.  In a news conference held today at the end of the annual meeting of the National People’s Congress, Premier Li Kequiang conceded that the progress that the Chinese government has made in environmental protection “still falls far short of the expectation of the people.” Noting that he had stated last year that “the Chinese government would declare war against environmental pollution,” Li stated that the government remains “determined to carry forward our efforts until we achieve our goal.” He avoided any mention of the film “Under the Dome,” which the Chinese government ordered removed from the internet.  On March 7 Chinese environment minister Chen Jijing, who had praised the film, made no mention of it at what reporters described as a “carefully scripted news conference.”  Edward Wong & Chris Buckley, Chinese Premier Vows Tougher Regulation on Air Pollution, N.Y. Times, March 15, 2015.  At his March 15th news conference, Premier Li stated: “All acts of illegal production and emissions will be brought to justice and held accountable.  We need to make businesses that illicitly emit and dump pay a price too heavy to bear.  We must ensure that the enforcement of the environmental protection law is not a stick of cotton candy but a powerful mace.”

Wednesday March 11 marked the fourth anniversary of the Fukushima Daiichi nuclear disaster in Japan.  Approximately 79,000 people who lived in the hundreds of square miles that remain off-limits to habitation remain displaced.  However, efforts are being made to decontaminate the area, unlike the area around Chernobyl which remains an exclusion zone nearly 29 years after that deadly accident.  Approximately $13.5 billion has been spent on efforts to decontaminate the area around the reactor.  More than 5.5 bags of contaminated material have accumulated though it is unclear where it ultimately will be stored.  Julie Makinen, After 4 Years, Fukushima Cleanup Remains Daunting, The Jerusalem Post, March 15, 2015, at 17. Due to the Fukushima disaster, Japan’s 48 nuclear reactors remain offline, which has spurred Japanese utilities to build new coal-fired powerplants.  On March 12 plans to build a 1.3 gigawatt coal-fired powerplant in Akita prefecture were announced by Kansai Electric Power Company and the Marubeni Corporation. This increases the number of new coal-fired powerplants in Japan announced in 2015 to seven.  More are expected to be announced by other utilities. Mari Iwata, In Japan, Coal Makes Comeback at Utilities, Wall St. J., March 13-15, 2015, at 22. 

China’s National Development and Reform Commission (NDRC) has approved the construction of two new nuclear powerplants in Liaoning.  These are the first new nuclear plants approved since China lifted a post-Fukushima moratorium on nuclear construction in 2012.  China currently has 22 nuclear powerplants in operation and a similar number under construction.  Last week the European Commission (EC) upheld a decision by Euratom, the EU’s nuclear watchdog, to veto a plan by Hungary to allow Russia’s state-owned nuclear construction company Rosatom to build two 1,200MW nuclear reactors in Paks, 75 miles south of Budapest.  Citing the importance of avoiding increased reliance on Russia for energy supplies, the EC refused to approve the plan’s requirement that nuclear fuel be imported exclusively from Russia. Andrew Byrne & Christian Oliver, Brussels Veto of Hungarian Nuclear Deal Set to Inflame Tensions with Russia, Financial Times, March 13, 2015, at A1.

On March 11 Professor Suzan Gokalp Alica from Gazi University in Ankara, Turkey gave a lecture on Turkish environmental law to my seminar on Global Environmental Law. She noted that many pieces of environmental legislation have been enacted in response to EU directives.  Although Turkey is not yet a member of the EU, it hopes eventually to join the Union.  Three lawyers from Turkey also came to class.  Prior to class the group and I watched the finals of the Myerowitz Moot Court competition.  They were surprised that the competition was judged by real like judges, including judges from federal district court and the U.S. Court of Appeals for the Fourth Circuit.  Judges rarely, if ever, visit law schools in Turkey, they noted.

I am now in Tel Aviv.  In a few hours I will be meeting Maryland students and Julie Weisman from the Water Resources Action Project at Ben Gurion Airport.  We will be spending the next week visiting water recycling projects in Israel, Jordan, and the Palestinian Territories.  The students are from Maryland’s Carey School of Law, the Smith School of Business, and Maryland’s nursing and dental schools.  They will be researching greywater recycling.

Stegner Lecture & Symposium, Internet Video Rocks China, Keystone XL Veto Upheld, Occidental/Achuar Settlement, Maryland/Pace Alliance (by Bob Percival)

On Wednesday March 4 I delivered the annual Wallace Stegner Lecture at the University of Utah’s S.J. Quinney School of Law’s Stegner Center in Slat Lake City.  The topic of my lecture was “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Cooperation.”  I reviewed the history of efforts to control air pollution in the United States and why their success has become the envy of environmentalists in China and India.  Concluding that “clean air has become a global imperative,” I argued that the U.S./China Climate Agreement announced in November 2014 increases the chances for a new global climate treaty being signed in Paris next December.  The lecture, which will be published by the University of Utah Press, was webcast.  A video of the lecture is now available online at: https://www.youtube.com/watch?v=ECELQAf3evA#t=4501

On Thursday and Friday I participated in the University of Utah’s annual Stegner Symposium.  I spoke on the opening panel on Thursday on “Getting the Lead Out: An Unusual Global Environmental Success Story.” My talk reviewed the incredible political twists and turns that led to the prohibition of lead additives in gasoline in the U.S., which now has been adopted in all but six countries of the world. This has dramatically reduced levels of lead in children’s blood, producing an estimated $2.4 trillion in net benefits according to the United Nations Environment Programme.

The topic of this year’s Stegner Symposium was “Air Quality: Health, Energy & Economics.”  This was an appropriate topic because Salt Lake City is afflicted by severe air pollution, particularly in winter months when inversions trap pollutants in the valley.  Several scientists and doctors who spoke at the symposium explained the severe health consequences of exposure to air pollutants.  They noted a just-released study demonstrating how reductions in air pollution in the Los Angeles Basin have significantly improved lung functions in children.  See Erica E. Phillips, “Kids Lungs Improve as LA Smog Falls,” Wall Street Journal, March 5, 2015, at A2.  One physician noted that these improvements in lung function could translate into five years longer life expectancy for children. Wood smoke contains particularly dangerous air pollutants and Utah authorities have proposed bans on wood burning during winter months, which has generated considerable opposition.

One speaker cited Mexico City’s “Hoy No Circula” program, which banned the use of certain automobiles on Saturdays, as a politically costly effort to reduce air pollution.  He explained that pollution levels already were lower on weekends when many poor people like to drive to visit relatives.

Jeff Holmstead, who was the EPA Assistant Administrator for Air and Radiation during the Bush Administration, argued that 95% of the benefits produced by air pollution controls have been the product of reductions in small particulates (PM 2.5).  He argued that it would be better simply to focus on controlling PM 2.5 rather than tightening controls on emissions of other pollutants such as mercury.   

Last week China was rocked by a new video posted online by Chai Jing, a former CCTV presenter.  Called “Under the Dome,” the video highlights China’s severe air pollution problems and Ms. Chai’s concern for the health effects of pollution on her unborn child.  In 48 hours the film was viewed more than 100 million times. The film, which reportedly cost Ms. Chai 1 million RMB ($160,000) to produce, emulates the style of “An Inconvenient Truth” with Chai appearing before an audience and projecting horrendous scenes of air pollution on a screen behind her.  Chen Jining, China’s new Minister of Environmental Protection, reportedly contacted Ms. Chai to congratulate her on the film, noting that it could be “China’s Silent Spring.”  Authorities from China’s central government, who have encouraged some citizen efforts to put pressure on companies and local authorities to reduce pollution, did not immediately try to censor the film.  After it had generated more than 260 million comments on Chinese social media, Party censors instructed the media not to continue reporting on the film and they later removed it from the internet on China.  However, the film remains available on foreign websites and it has been translated into English.  The film, which lasts an hour and 44 minutes, is now available on You Tube with English language subtitles at: https://www.youtube.com/watch?v=T6X2uwlQGQM.

On March 4 the U.S. Senate fell four votes short in an attempt to override President Obama’s veto of legislation passed by the Republican-controlled Congress that would approve the Keystone XL pipeline. This was not unexpected as the Republicans knew when the legislation was passed that they did not have the votes to override the veto, which requires a two-thirds vote in each house of Congress.

On March 5 it was revealed that Occidental Petroleum had agreed to pay compensation to five Achuar communities in Peru’s northern Amazon region.  The coil company was sued by the indigenous groups and Amazon Watch, who were represented by Earth Rights International, for oil contamination that occurred over a three decade period ending in 2001.  The case initially was dismissed by a federal district court on forum non cenveniens grounds, a decision that was reversed by the U.S. Court of Appeals for the Ninth Circuit.  I would like to thank Michelle Salomon, one of my former students who worked on the case for EarthRights International, for bringing this to my attention.

On March 2 the University of Maryland and Pace University announced a new alliance between their environmental law programs that will allow students at each school to participate in courses and activities of both schools.  Pace students will be able to participate in Maryland’s Washington D.C. externship program and Maryland students will be able to participate in Pace’s United Nations practicum.  Pace students will be able to join Maryland’s environmental field trip to China next year and Maryland students will be able to participate in Pace’s Brazil program.  Based on the positive reactions we have received from environmental faculty around the country, this alliance may well prove to be a model for future cooperation between many schools.

On Friday I leave for Israel where I will be co-leading a group of eight University of Maryland students on a spring break trip to the Middle East (Israel, Jordan and the West Bank) to work on water resources issues.  

Obama Vetoes Keystone XL Legislation, Panama Dam Halted, Brazil Fracking Delayed, Kansas Wins Water Dispute, Court Reverses Fisheries Conviction (by Bob Percival)

On February 24 President Obama fulfilled his promise to veto legislation that would have required approval of the Keystone XL pipeline to bring oil from the tar sands of Alberta, Canada to the U.S.  The veto was only the third President Obama has issued in the six years of his presidency.  Now that Republicans control both houses of Congress, it is likely that Obama will be vetoing many more bills in the last two years of his presidency.  Although nine Senate Democrats and 29 Democratic members of the House had voted in favor of the bill, this falls short of the two-thirds majorities that would be needed to override the president’s veto.  In a very brief veto message, Obama noted that the legislation “attempts to circumvent longstanding and proven processes for determining whether or not building and operating a cross-border pipeline serves the national interest.”

The February issue of EcoAmericas is now available.  It reports that Panama’s National Environmental Authority temporarily has halted the construction of the Barro Blanco Dam along the Tabasara River because of a series of environmental violations by Genisa, the Honduran company building the dam.  The dam was a major priority of the Martinelli government that left office last year.  The new administration of President Juan Carlos Varela has been much more sympathetic to environmental concerns.  President Varela recently signed legislation protecting more than 200,000 acres of wetlands on the west coast of Panama extending from Panama City to the Darien. EcoAmericas also reports that commencement of hydraulic fracturing in Brazil has been delayed because of environmental injunctions and a dispute over whether fracking will be licensed by state or national environmental authorities. 

On Monday and Tuesday I appeared before the U.S. Supreme Court to move the admission of seven of my former students to the Supreme Court Bar.  The seven are Catherine Faint ’93, Jomar Maldonado ’03, Karyn Marsh ’03, Jaclyn Ford ’04, Amber Widmayer ’07, Jeremy Scholtes ’08, and Rachel Shapiro ’10.  Lawyers may become members of the Supreme Court Bar after they have been admitted to practice before the highest court of a state for at least three years.  Their admission must be moved by an existing member of the Supreme Court Bar.  

No decisions were announced by the Court on Monday, but on Tuesday Justice Kagan announced the Court’s decision in Kansas v. Nebraska, a water dispute.  The Court approved the special master’s findings that Nebraska had “knowingly failed” to comply with its obligations under the Republican River Compact by taking more water from the river than it was entitled to take. The Court also approved the master’s recommendation that Nebraska be forced to disgorge some of its gains from the violations even though they exceeded actual losses suffered by Kansas.

On Wednesday the Court announced its decision in Yates v. U.S., reversing the conviction of a fishing boat captain for destroying evidence that he had taken undersized fish in violation of federal fisheries regulations.  By a 5-4 vote the Court held that the Sarbanes-Oxley Act’s provisions prohibiting destruction of a “tangible object” to obstruct an investigation did not cover the act of destroying undersized fish after they had been viewed by an enforcement official.  The decision featured an unusual lineup of the Justices with Justice Ginsburg writing the plurality opinion joined by the Chief Justice and Justices Breyer and Sotomayor with Justice Alito concurring in the judgment.  Justice Kagan wrote an excellent dissent joined by Justices Scalia, Kennedy and Thomas.

On Wednesday February 25 I gave another lecture on “Environmental Law in the ‘Last Place on Earth’” to the Maryland Environmental Law Society.  I was really pleased by the large turnout of for a lecture inspired by my trip to Antarctica in January.

Today Julie Weisman and I and the eight-student multidisciplinary team that we will be taking to the Middle East in two weeks met with Dr. Clive Lipchin, Director of the Center for Transboundary Water Management at the Arava Institute in Israel.  Clive is in town for the annual AIPAC meeting where Israeli Prime Minister Bejamin Netanyahu will speak tomorrow.  The students from the law, business, nursing, and dental schools will be researching greywater recycling projects in Israel, Jordan and the Palestinian Territories.

On Tuesday I will fly to Salt Lake City where I will be delivering the annual Wallace Stegner Lecture at the University of Utah’s S.J. Quinney School of Law.  My lecture is entitled “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Coopertion.”  It will review the amazing history of U.S. efforts to control air pollution and their influence on global environmental law.  See http://www.law.utah.edu/event/wallace-stegner-lecture-4/