Pope to Issue Environmental Encyclical, China Trip, Final Student Blog Posts (by Bob Percival)

Today top Vatican officials are holding a summit to promote a new campaign by Pope Francis urging world leaders to reach a new agreement to control emissions of greenhouse gases when they meet in Paris in December.  The New York Times reports that Pope Francis is preparing to issue an encyclical on environmental degradation and the effect of climate change on the poor.  The substance of the encyclical, which is likely to be issued this summer, should not come as a surprise in light of the fact that the Pope frequently has spoken about the importance of protecting the environment ever since his first homily in 2013. In a Twitter post this month the Pope stated: “We need to care for the earth so that it may continue, as God willed, to be a source of life for the entire human family.”  The issuance of the encyclical will kick off a 12-week campaign by the Vatican to raise environmental awareness capped by the Pope’s address in September to a joint session of Congress.  Climate change deniers and their organizations have expressed outrage at the Vatican’s plans.  Coral Davenport & Laurie Goodstein, Pope Francis Steps up Campaign on Climate Change to Conservatives’ Alarm, N.Y. Times, April 27, 2015 (http://www.nytimes.com/2015/04/28/world/europe/pope-francis-steps-up-campaign-on-climate-change-to-conservatives-alarm.html).

Yesterday the law school closed at 2pm due to the unrest in Baltimore following the burial of Freddie Gray who died of a severed spine suffered while in police custody.  Students who were taking 1:30pm exams were sent home, but our information technology office was able quickly to arrange for them to retake the exams online during the next 48 hours.

I am leaving for China on Thursday where I will be serving the first installment of my time in 2015 as a high level visiting foreign expert at Shanghai Jiaotong University KoGuan School of Law.  I will be returning to the U.S. from China on May 7, but making additional trips there in July and August.

Today the final four blog posts by students in my Global Environmental Law seminar appear in the “Students” section of my parallel website at: http://www.globalenvironmentallaw.com. Brieanah Schwartz, who was a member of our greywater recycling project for use in communities off the grid in the Middle East, reports on water recycling in Australia and the Middle East.  Jeff Wettengel addresses the question whether environmental regulation hinders economic growth.  Christine Kim examines the effects on environmental enforcement of recent amendments to China’s basic environmental law.  Robert Feehley discusses global efforts to protect peatlands.

TransCanada Applies for Another Pipeline, Republicans Warn Against Paris Climate Deal, Four More Student Blog Posts (by Bob Percival)

TransCanada Corporation, the Canadian company seeking approval to build the Keystone XL pipeline, has applied to the U.S. State Department for permission to build another pipeline, the Upland Pipeline Project.  This 200-mile pipeline woud transport up to 300,000 barrels a day of crude oil from North Dakota to Saskatchewan.  Some of this oil would travel through the company’s proposed Energy East pipeline to refineries on Canada’s east coast.  If the State Department grants its approval, the pipeline is expected to go into service in the year 2020. Amy Harder, TransCanada Seeks U.S. Approval of Another Pipeline, Wall St. J., April 27, 2015, at B7.

The Wall Street Journal reports that the Republican leadership in Congress is considering sending a letter to other nations urging them not to join any global climate agreement negotiated by the Obama Administration.  The letter reportedly would be modeled on the letter by Senator Tom Cotton of Arkansas to Iranian leaders, signed by 47 Republican Senators, warning that Congress could override any nuclear agreement between the U.S. and Iran.  Colleen McCain Nelson, GOP Plots Resistance to Talks on Climate, Wall St. J., April 27, 2015, at A4.  Representatives of the world are expected to negotiate a new global climate agreement to replace the Kyoto Protocol when they meet in Paris in December. President Obama maintains that the U.S. pledge to cut emissions of greenhouse gases by nearly 30% by 2025 can be accomplished under existing law without seeking any new legislation from Congress.

Today four new student blog posts appear in the “Students” section of my parallel website at http://www.globalenvironmentallaw.com.  Dong Hee Hong compares policies to promote renewable energy in various countries.  Andrew Kiphart examines the U.S. Bureau of Land Management’s regulations for hydraulic fracturing operations on federal land.  Lila Meadows focuses on the problem of climate refugees and Jon Saltzman discusses how electronic waste disposal is regulated in various countries.

Chevron/Ecuador Oral Argument in 2nd Circuit, Four More Student Blog Posts (by Bob Percival)

On April 20 a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard an appeal of a RICO judgment obtained by Chevron to prevent villagers in the Oriente region of Ecuador from enforcing a $9 billion judgment by an Ecuadoran court against Chevron.  The three judges hearing the case were Amalya L. Kearse, Barrington D. Parker, and Richard C. Wesley. Judge Richard Wesley stunned both sides by asking at oral argument whether the Second Circuit had the power to order the entire dispute retried from scratch in federal district court. Counsel for the plaintiffs in the Ecuadoran lawsuit responded that the court could make such an order, while Ted Olson, arguing for Chevron, stated that he “couldn’t agree” to such a proposal.  Judge Wesley also questioned why Chevron was simultaneously pursuing an arbitration action against the state of Ecuador and the RICO action and asked what would happen if they reached contradictory conclusions.  

Judge Parker noted that the Ecuadoran plaintiffs had failed to argue that the findings made by district judge Kaplan in support of his RICO judgment were “clearly erroneous,” the legal standard for overturning them on appeal.  Judge Kearse’s only question was what impact the RICO judgment would have on the villagers in Ecuador who were plaintiffs there and defendants in the New York RICO suit.  Judge Wesley responded with anger when Chevron’s counsel argued that the corporation should not be bound by a prior commitment to accept the judgment of the Ecuadoran courts in return for the case initially being dismissed from New York courts.  “I’m not terribly interested in legalistic arguments” about the terms of Chevron’s merger with Texaco, Judge Wesley exclaimed. Chevron made a commitment in federal court, he stated, and should be bound by it. Roger Parloff, Judge Asks Puzzling Questions at Chevron v. Donziger Appeal, Fortune, April 20, 2015 (http://fortune.com/2015/04/20/judge-asks-puzzling-questions-at-chevron-v-donziger-appeal/).

Today four additional blog posts from students in my Global Environmental Law seminar have been posted on my parallel blog at: http://www.globalenvironmentallaw.com. Just click on the "Students" tab on the top of the opening page.  Jonah Nelson writes about India’s new environmental tribunals.  Ashley Wetzel discusses how effective environmental courts have been and whether they would work in the U.S.  Pejmon Pashai reviews environmental law in Iran and Aminah Zaghab argues for recognizing environmental accountablity as a new human right.

ARCTIC COUNCIL MEETS AS U.S. ASSUMES CHAIRMANSHIP, STUDENT BLOG POSTS ON FOSSIL FUELS

On April 24 representatives of countries who are members or observers of the Arctic Council gathered on Canada’s Baffin Island for the Council’s biennial meeting.  Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States are members of the Arctic Council.  Created in 1996, the Arctic Council is an international organization designed to foster cooperation among the countries with claims to the Arctic.  This year the U.S. assumed the Council’s chairmanship, which rotates among its members every two years.  Canada previously chaired the Council, whose decisions are made by consensus, and shepherded an agreement among Council members to cooperate in responding to oil spills in the Arctic.  U.S. Secretary of State John Kerry, who led the U.S. delegation, emphasized the threat of climate change to the Arctic and noted that the Council’s member states and observers account for 60 percent of global greenhouse gas emissions.

Today we have two new student blog posts on my parallel blog at: http:www.globalenvironmentallaw.com.  To view them click on the “Students” tab at the top of the opening webpage.  The theme of the student blog posts today is fossil fuels. David Maher discusses New Jersey Governor Chris Christie’s recent settlement with ExxonMobil for the cleanup of oil contamination from its refinery operations in Bayonne, New Jersey. Trey Hilberg discusses the problem of phasing out fossil fuel subsidies in various countries.

Environmental Federalism Book Launch Conference, Student Blog Posts on an Environmental Amendment to the Maryland Constitution (by Bob Percival)

Today a book launch conference was held at George Washington University Law School for “The Law and Policy of Environmental Federalism,” which will be published this fall by Edward Elgar Publishing.  The book is edited by Professor Kalyani Robbins of Florida International University.  I moderated a panel on “Climate Change and Environmental Federalism” where Professors Bill Buzbee of Georgetown and Alice Kaswan of the University of San Francisco (who is currently visiting at UC-Berkeley) spoke.  Bill spoke about the importance of preserving state regulatory authority in any federal program to regulate emissions of greenhouse gases.  Alice examined how federal authorities can assist state and local governments in adapting to climate change.

Four new blog posts from students in my Global Environmental Law seminar have been posted on my parallel blog at: http://www,globalenvironmentallaw.com.  To access the posts go to the blog and click on "Students" at the top of the page.  The posts are from the four students who participated in a group project to consider whether the state of Maryland should add an environmental provision to its state constitution.  The project was inspired by rabbi Nina Beth Cardin who is part of a coalition of religious leaders on the Ecumenical Council of Maryland.  The Council has identified environmental protection as an important priority for them.  The students divided the research into four areas: (1) analysis of the environmental provisions that are in the constitutions of 22 other states (by Hannah Ernstberger), (2) analysis of the environmental provisions in the constitutions of other nations (by Robin Cleland), (3) a comparison of the different approaches to environmental provisions embodied in constitutional amendments and how courts have interpreted them (by Bryan Smith), and (4) analysis of the process for adopting a constitutional amendment in Maryland (by Mellissa Sager).  I am using the students’ research to prepare a report for the Ecumenical Council.

In Memoriam: Joel Fedder, Additional Student Blog Posts (by Bob Percival)

On Saturday April 18, Joel Fedder lost his long battle with pancreatic cancer.  Joel was an amazing man who spent his later years promoting global environmental protection efforts.  I met him several years ago after he had visited the Arctic National Wildlife Refuge (ANWR) on a Sierra Club trip led by my then-neighbor Melinda Pierce.  Because I use ANWR as a case study in my Environmental Law class, I asked Joel to come to class to show the slides of his trip and to discuss his impressions of ANWR.  I soon discovered that Joel had immersed himself in climate science and had become a passionate advocate for measures to control greenhouse gas emissions.  Joel and his wife Ellen joined Maryland’s Environmental Law Program on our 2010 environmental field trip to China.  I have so many fond memories of him from that trip, including him scaling the Great Wall with us the day after a blizzard had covered it with ice.  

Joel became a significant benefactor for our Environmental Law Program.  He provided us with funding to host an annual environmental lecture as well as the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012.  Following the tremendous success of that Colloquium, Joel created the Fedder Scholars Fund that creates an endowment to fund students to present papers each year at the Academy’s colloquia.  Just last week four new Fedder Scholars were selected to present their papers at the Academy’s colloquium in Jakarta, Indonesia next September.  

Dean Tobin, Heather Culp, Trishana Bowden and I attended Joel’s funeral yesterday.  It was a wonderful celebration of his life where his children, Amy and Michael, his sister Sue and one of his grandchildren gave moving recollections of Joel.  He will be greatly missed, but his passion for the environment will live on in the students who have been and will become Fedder Scholars.

Posted today on my parallel blog at: www.globalenvironmentallaw.com we have student blog posts from Josh Dhyani and Emily Gallin.  Josh is a third year law student who will serve as a law clerk for Maryland Court of Appeals Judge Lynn Battaglia following his graduation next month.  Josh’s blog post explores the implications of climate change for the insurance industry.  Josh was selected to be a Fedder Scholar.  Due to his clerkship, he will not be able to present his paper in person at the 13th Colloquium of the IUCN Academy of Environmental Law in Jakarta, Indonesia, in September.  However, his paper will be submitted for consideration for inclusion in the conference proceedings volume.  Emily Gallin is a first year law student whose blog post discusses efforts to combat deforestation in Indonesia. Their blog posts can be accessed by going to my parallel blog at http://www.globalenvironmentallaw.com and clicking on "Students" at the top of the blog page.

Student Blog Posts, Golden Tree Awards, Japan Reactor Restart Blocked, Clean Power Argument, UMD Summit (by Bob Percival)

On Wednesday April 15 my Global Environmental Law seminar had its final class of the year.  Students in the seminar have prepared blog posts summarizing the results of their research.  For the next nine days I will be posting three of their blog posts every day in the “Students” section of my parallel website.  To access the student blog posts, go to my parallel blog at: www.globalenvironmentallaw.com and simply click on “Students” at the top of the page. The first three posts are by Maryann Hong, Renee Lani, and Taylor Kasky, who have been selected to received Fedder Scholar travel grants to present their papers at the 13th Colloquium of the IUCN Academy of Environmental Law in September in Jakarta, Indonesia.  Their blog posts focus on global tobacco control, the Lacey Act, and global food security.

On April 1 the University of Maryland hosted its annual award ceremony for students in my fall semester Environmental Law class who made short documentary films.  The film “The Gas and the Furious: FERC Approves Natural Gas Line Extension Through Baltimore County” by Bethany Henneman, Chelsea Kadish, Taylor Kasky, Laura Lutkefedder, Kat O’Konski and Andrea Olson won the Golden Tree for Best Picture.  The film also won awards for Most Educational, Best Interviews, Best Use of Humor, and Best Sound.  The film “Maryland Solar Energy” by Julia Carbonetti, Erik Pramschuffer, and Richard Starr won the Golden Tree awards for Best Acting, Best Animation/Special Effects, and the Special Judge’s Award for Cutest Child Actor.  The film “Cove Point LNG” by Salomee Briggs, Sean Dobbs, Marina Ivanovskaya, and Jaime Jacobson won the awards for Best Cinematography and Best Music. 

On April 14 the Fukui district court in Japan surprised the government by prohibiting Kansai Electric Company from restarting two nuclear reactors at the Takahama nuclear power plant.  The Japanese government, which wants to restart all but five of the country’s 48 nuclear reactors, which were closed in the wake of the Fukushima Daiichi nuclear accident, argued that the reactors complied with new safety regulations.  But the court declared that the new regulations “are so loose that compliance . . . wouldn’t secure the safety” of the plants.

On Thursday April 16 I attended an oral argument in the U.S. Court of Appeals for the D.C. Circuit  where the court heard consolidated challenges to EPA’s Clean Power Plan to regulate greenhouse gas emissions from existing powerplants.  The argument, which lasted for more than two hours, was conducted before a panel consisting of Judges Henderson, Griffith & Kavanagh, probably the three judges most critical of EPA and environmental regulation. What was astonishing is that the argument was even being held because EPA has only proposed regulations and not promulgated them in final form.  It is a fundamental principle of administrative law that only final agency action is reviewable in court.  A similar challenge to EPA’s rulemaking was dismissed immediately as premature by a federal judge in Nebraska because EPA has not yet adopted the rule the petitioners seek to challenge.  

So many  people showed up to hear the argument that the courtroom filled up quickly.  I ended up listening to the argument in the lawyers lounge.  Many other people watched the argument in an overflow room.  Elbert Lin, the Solicitor General of West Virginia, represented several states that are challenging EPA’s rulemaking.  He did a much better job than Harvard Law Professor Laurence Tribe, who had been hired by intervenor Peabody Coal.  Tribe delivered a rambling attack on EPA that was long on rhetoric and short on legal analysis.  He failed even to reach his fanciful new constitutional argument before running out of time.  Amanda Berman was perhaps the best advocate of all in a stellar group of attorneys defending EPA’s position. The panel clearly wanted to rule against EPA, but they and the industry attorneys could not come up with any principle that would limit pre-promulgation challenges to agency action.  Thus, a ruling against EPA would open up the courts to challenges to any agency rulemaking even before the agency adopts regulations.  This likely is too much for even anti-EPA judges to swallow.  Ms. Berman wryly noted that the state of Texas challenges many EPA rules, but its lawyers were smart enough not to join this litigation because it had been brought prematurely.  These lawsuits seem to represent a kind of scorched earth litigation tactic to demonize EPA, but I predict the court will dimiss them as premature.  However, I would not be surprised to see some of the judges seize the opportunity to castigate EPA on the merits in an effort to influence the agency’s ultimate action.

On Friday April 17 the University of Maryland held its second annual Environmental Summit.  The event featured 55 professors from the University of Maryland System who work on environmental issues at most of the campuses in the system.  A highlight of the event was a “lighting round” session where dozens of professors spent 3-5 minutes describing their current research and activites.  This already has spawned some great collaborative discussions that I have had with faculty from severl parts of the university.