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.