10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, June 28, 2015

China Trip, Dutch Court Orders GHG Emissions Cut, TSCA Reauthorization Legislation (by Bob Percival)

I am now back in the U.S. after a two-week trip to China.  I spent last week in Shanghai.  On Wednesday evening I attending a farewell dinner for Florin Tacu, the Counsul General of Romania, at the Shanghai Jiaotong Faculty Club.  He is returning to Romania to become a judge after serving as the dean of the Shanghai diplomatic corps.  On Thursday June 25 I visited the East China University of Politics and Law in Shanghai.  The university is located on a lovely, historic campus adjoining Zhongshan Park.  I presented a wide-ranging, 90-minute lecture entitled “From History to Reality: The Development of Environmental Law in the United States and the Institutional Reality.”  Following the lecture students and faculty from the university engaged in a lively dialogue with me.  School officials then hosted me for a wonderful Chinese banquet lunch.

I was supposed to fly back to Beijing on Friday, but heavy rains led to the cancellation of most flights at Hongqiao Airport, including mine.  Trains to Beijing were all full on Friday, but Professor Zhao saved me by booking me the first available space on a train Saturday morning.  After a very comfortable, 5-1/2 hours on a high-speed train going 180 mph, I arrived in Beijing just in time to make it to the airport for my return flight to the U.S. on Saturday afternoon.

Last week a court in the Netherlands ordered the Dutch government to make further cuts in greenhouse gas (GHG) emissions, citing the urgency of climate change.   The Hague District Court found that the Dutch government’s pledge to reduce its GHG emissions by 17% below 1990 levels by 2020 was insufficient.  Ruling on a lawsuit brought by the Urgenda Foundation, the court ordered the Dutch government to reduce the Netherlands’ GHG emissions by 25% below 1990 levels by 2020.  The court found that the Dutch government had a “duty of care to take mitigation measures” that was not affected by the fact the country’s current contribution to global emissions is “small.” The court based its decision on Article 21 of the Dutch Constitution, which makes the government responsible “to protect and improve the environment,” and other principles of EU and international law, including the precautionary principle.  The court determined that the 25% reduction represented the Netherlands’s fair contribution to meeting the UN goal of keeping global temperature increases to two degrees Celsius or less.  This is believed to be the first time any court in the world has required GHG reductions based on non-statutory grounds. Similar lawsuits have been filed in Norway and Belgium.  In its lawsuit the Urgenda Foundation (name stands for “urgent” and “agenda”) represented “current and future generations of Dutch nationals.”

In its annuaL statistical review of global energy released last week, BP Plc reported that primary energy consumption increased by only 0.9% in 2014, its slowest growth rate since the late 1990s.  World coal production declined by 0.7% with the largest decline occurring in China where it decreased by 2.6% even as energy production in China rose by 0.2%.  Growth in China’s energy consumption slowed to 2.6% in 2014, much lower than its average of 6.6% during the past 10 years and the lowest rate since 1998.

Defying the confident predictions of pundits, last week the U.S. Supreme Court did not release its decision in Michigan v. EPA, the case challenging EPA’s regulations to control emissions of mercury and other toxic air pollutants (see March 27, 2015 blog post describing the oral argument).  Instead the Court released blockbuster decisions upholding ObamaCare and declaring a constitutional right for gays to marry.  Because tomorrow is the last day the Court will be releasing decisions this Term, the decision is virtually certain to be issued then.  I plan to be in the Court when the decision is announced at 10AM tomorrow morning.


On Wednesday the U.S. House of Representatives passed the TSCA Modernization Act (H.R. 2576) by a vote of 398-1.  The bill includes a comprehensive overhaul of the Toxic Substances Control Act (TSCA).  It is supported by the chemical industry, but the environmental community is split of the proposed legislation.  The Environmental Defense Fund, which previously endorsed a TSCA reform bill crafted by Republican Senator David Vitter and the late Democratic Senator Frank Lautenberg, supports the legislation, but other environmental groups do not believe it is a substantial enough improvement over current law to warrant their support.   The bill would require more testing of chemicals and replace the requirement in Section 6 of TSCA that regulation employ the “least burdensome” regulatory option, while requiring EPA to “determine whether technically and economically feasible alternatives that [are more beneficial to] health or the environment . . . will be available as a substitute.”  Similar legislation is likely to be taken up by the U.S. Senate where S. 697 is being co-sponsored by a bipartisan coalition of 40 Senators.  Environmentalists also are very concerned that preemption provisions in the bills could derail some important state initiatives to phase out dangerous chemicals.

June 21 Blog Post: China Trip, Pope's Environmental Encyclical, Japan to Resume Antarctic Whaling (by Bob Percival)

Below is the blog post I made on June 21, but was unable to post while in China where Blogspot is blocked:

Last week I toured the Xinjiang Uyghur Autonomous Region in far western China.  It has been the site of considerable unrest leading to a heavy police and army presence and the absence of foreign tourists.  On Monday morning I flew from Beijing to Ürümqi, a four-hour flight.  Because China maintains a single time zone for the entire country, the sun comes up a couple of hours later in Xinjiang than it does in Beijing.  On Monday afternoon I visited Heavenly Lake in the mountains southeast of Urumqi where I took a nice hike.  On Tuesday  I visited the ancient city of Turpan, 100 miles southeast of Urumqi.  On the way to Turpan I passed through two massive wind farms, one extending for 12 miles and another for 22 miles.  They are located on two plains separated by the Tianshan Mountains where strong, sustained winds blow.   The strength of the winds was illustrated by the sight of a crane trying to right a motor home that had been blown off the road.  The wind farms had turbines almost as far as the eye could see and they provide enough electricity to power Ürümqi, a town of 3 million people. 

Turpan is located in the desert along the Turpan Depression, the fourth lowest spot on earth more than 500 feet below sea level.  It is one of the hottest and driest places on the planet.  The day before I arrived the temperature had reached 108 degrees.  I had the good fortune of being there during a rare rainstorm, which my guide explained would probably be one of only two days all year in which sustained rain fell.  I toured the remarkable ancient Karez (Uyghur word for well) irrigation system that brings water from melting mountain glaciers to Turpan through a series of underground canals that date from the Han Dynasty.  Tourists are allowed to climb underground to view the canals, which have allowed Turpan to become a grape-growing oasis. As the glaciers in the mountains recede due to climate change, parts of the 3,000-mile network of canals have begun drying up.  While in Turpan I also visited the amazing ruins of the ancient Yar City (Jiaohe) and the Mutuo Valley, a gorge in the Flaming Mountains.

On Wednesday I returned to Ürümqi where I visited the Xinjiang International Grand Bazaar, one of the world’s largest.  I got a great view of the city from the top of the tower located in the center of the bazaar.  Following a wonderful kebab lunch I visited the Xinjiang Regional Museum.  On display there is the famous Loulan Beauty, a 3,800-year old mummified corpse.  The Loulan Beauty is believed to have died while in her early 40s, probably due to lung disease caused by sand in the air and pollution from open fires.  On Thursday I flew back to Beijing where I encountered a massive traffic jam that made the trip from the airport to downtown take more than two hours.  For a total of eighteen minutes all traffic on Chang’an Avenue, downtown Beijing’s main thoroughfare, came to a complete stop as far as the eye could see.  After about ten minutes of terminal gridlock people started getting out of their vehicles and taking photos or lighting up cigarettes.  On Friday I flew to Shanghai where I will be all next week.  I will post photos of my trip in the Photo Albums section of this website.

On Thursday June 18 the Vatican officially released Pope Francis’s long-anticipated encyclical on the environment.  Entitled Laudato Si (Praise Be to You) On Care for Our Common Home, the encyclical was published in eight languages.  A copy in English is available online at: http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html.  When he was selected Pope two years ago, Argentine archbishop Jorge Mario Bergoglio chose the name Francis to honor St. Francis of Assisi, “the patron saint of all who study and work in the area of ecology.” The encyclical reviews the history of the Catholic Church’s concern for the environment, noting Pope John XXIII’s concern over the testing of nuclear weapons in 1963, Pope Paul IV’s condemnation of environmental degradation in 1971, and statements of environmental concern by their successors.  Declaring that God has entrusted the world to humans, Pope Francis states that nature is misused when it is viewed as property we use for ourselves alone.  He notes that many religious traditions properly view activity that harms the environment as a sin.  The Pope urgently appeals “for a new dialogue about how we are shaping the future of our planet.”

The encyclical presents a solid discussion of the causes and consequences of climate change and it stresses the importance of shifting away from highly polluting fossil fuel energy sources to renewable energy, something that has caused great distress to the fossil fuel industry and the climate deniers it promotes. It stresses that access to safe drinking water should be considered a fundamental human right and it strongly emphasizes the importance of protecting wetlands and preserving biodiversity.  Importantly, the encyclical declares that the biblical reference in the book of Genesis to man having “dominion” over the earth has been incorrectly interpreted to permit unbridled development (“the Bible has no place for a tyrannical anthropocentrism unconcerned for other creatures”).  Rather, it argues that “our ‘dominion’ over the universe should be understood more properly in the sense of responsible stewardship” and that the right to private property is “not inviolable,” but rather subject to a “social mortgage.”

The gist of Laudato Si is that mankind has a strong moral obligation to protect the environment that has not been honored despite repeated global environmental summits.  As a result we face an “ecological crisis” that particularly harms the poorest and most vulnerable.  We must pursue intergenerational equity and hear “both the cry of the earth and the cry of the poor” (emphasis in original).  The encyclical emphasizes “how everything is interconnected” and that various factors such as loss of freedom, violence and corruption can undermine the effectiveness of legal institutions (“Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective?”). Laudato Si praises the Montreal Protocol, the Basel Convention, and the Convention on International Trade in Endangered Species (CITES).  It endorses the precautionary principle and applauds the1992 Rio Declaration, but decries the scant development of global environmental norms since then.  

Significantly, Pope Francis stresses the importance of developing effective national environmental laws and regulations (“Society, through non-governmental organizations and intermediate groups, must put pressure on governments to develop more rigorous regulations, procedures and controls. Unless citizens control political power – national, regional and municipal – it will not be possible to control damage to the environment.”). He also notes the importance of continuity (“policies related to climate change and environmental protection cannot be altered with every change of government. Results take time and demand immediate outlays which may not produce tangible effects within any one government’s term. That is why, in the absence of pressure from the public and from civic institutions, political authorities will always be reluctant to intervene, all the more when urgent needs must be met. To take up these responsibilities and the costs they entail, politicians will inevitably clash with the mindset of short-term gain and results which dominates present-day economics and politics.”).  Pope Francis argues that laws, even when enforceable, will not alone bring about the necessary changes without ecological education that motivates individuals to change their behavior.

While Pope Francis has received high praise for Laudato Si, some parts of it have caused controversy even within the environmental community.  He criticizes carbon trading as a possible “ploy which permits maintaining the excessive consumption of some countries”. This led one prominent environmental economist to denounce Pope Francis as a representative of the views of “a small set of socialist Latin American countries that are opposed to the world economic order [and] fearful of free markets.”  The Pope does argue that market forces cannot adequately protect the environment and he identifies “the increasing use and power of air-conditioning” as an example of “harmful consumption.” He criticizes those who blame environmental degradation on population growth in developing countries and asserts that an “ecological debt” is owed by the “global north” to the “global south.” He argues for “redefining our notion of progress,” noting that “technological and economic development which does not leave in its wake a better world and an integrally higher quality of life cannot be considered progress.”  Pope Francis astutely observes that the term “sustainable growth” often is used as “a way of distracting attention and offering excuses” reducing “the social and environmental responsibility of businesses . . . to a series of marketing and image-enhancing measures.” 

Pope Francis will be visiting the U.S. in September.  His trip will include a visit to the United Nations and an address before a joint session of the U.S. Congress.  Given the encyclical’s urgent message concerning the importance of a strong, new global climate treaty, opponents of measures to control greenhouse gas (GHG) emissions are struggling to come up with responses to it.  Particularly amusing have been suggestions that religion should be kept out of politics or observations that the Pope is not a scientist by the very political figures who in the past have used religion for political aims and who refuse to accept the scientific consensus on climate change.  While the full impact of the Pope’s environmental crusade is not known yet, it seems to have improved the chances that a good, new global agreement on measures to combat climate change will be adopted at the Paris COP in December.

Last week the Japanese government announced that it plans to resume whaling in Antarctica later this year.  Japan suspended whaling after the International Court of Justice (ICJ) rejected its claim that Japan’s whaling fit within the research exception to the International Whaling Commission’s ban on commercial whaling.  An IWC expert panel said it was unable to endorse Japan’s revised plan to kill 333 minke whales each year between 2015 and 2027, approximately one-third of its previous catch.

Last week the U.S. Environmental Protection Agency (EPA) proposed to require that heavy trucks improve their fuel economy on average by 40 percent by the year 2027.  The proposal is part of the Obama administration’s plans to reduce U.S. GHG emissions.  While it is estimated that compliance with the rules could increase the cost of trucks by $12,000-14,000 per vehicle, the added expense is expected to be recouped quickly in fuel savings.  Truck manufacturer Cummins actually expressed support for the new regulations, though trucking companies were more skeptical.


Today I met with a Chinese lawyers who is involved in the new wave of public interest litigation brought in response to recent changes in China’s environmental laws.  While the jury is still out, there is considerable excitement in the legal community here in anticipation that Chinese courts will become more receptive to environmental cases.

Sunday, June 7, 2015

Oil Companies Ask for Carbon Tax, China to Ban Ivory Trade, Exxon Lobbies Vatican (by Bob Percival),

On June 1 top officials from six major multinational oil companies that have headquarters in Europe endorsed the adoption of a carbon tax to combat global warming and climate change.  The companies and the countries in which they have their headquarters are: BG Group plc (UK), BP plc (UK), Eni S.p.A. (Italy), Royal Dutch Shell plc (Netherlands), Statoil (Norway) and Total S.A. (France).  In a joint letter released at an international gas conference, the executives touted the role natural gas can play in reducing carbon emissions, while arguing that a carbon tax would help level the playing field.  The officials argued that any new global climate agreement adopted at a conference in December in Paris should promote national carbon taxes.  “We owe it to future generations to seek realistic, workable solutions to the challenge of providing more energy while tackling climate change. We urge governments to create the incentives that will encourage all contributors to a more sustainable future.” 

Wildlife groups are hailing a promise by a Chinese official to phase out trading of ivory in China.  Zhao Shucong, minister in charge of the State Forestry Administration, announced that China would “strictly control the ivory trade and processing, until eventually halting commercial processing and the sale of ivory and its products.”  Because China is one of the largest sources of demand for ivory, a ban on the ivory trade would greatly reduce incentives for elephant poaching. The African elephant population has fallen from more than one million in 1989 to less than 500,000 in 2014. It is estimated that 20,000 elephants were killed for the ivory in their tusks in both 2013 and 2014. It is unclear how fast China will act to shut down its ivory trade.

At its annual meeting on Mary 27, ExxonMobil chief executive officer Rex Tillerson dismissed concerns about climate change, claiming that technology can counter its effects.  He defended the company’s failure to invest in renewable energy projects by stating “we choose not to lose money on purpose.”  However, the company apparently is concerned about Pope Francis’s promotion of of a new global climate agreement and his upcoming encyclical on the environment.  It was revealed that ExxonMobil sent a representative to the Vatican to lobby it on climate change.

An updated profile of environmental law in Turkey has now been posted in the “Country Profiles” section of my parallel website at www.globalenvironmentallaw.com.  The profile was prepared by Turkish environmental law professor Süheyla Suzan Alıca.  I am deeply grateful to her for her work updating the profile.

At the end of last month EPA issued a final rule clarifying its interpretation of the meaning of “waters of the United States,” the jurisdictional trigger for federal regulation under the Clean Water Act.  The rule is a response to the Supreme Court’s sharply divided (4-1-4) ruling in Rapanos v. U.S. in 2006.  The rule is based in large part on a report released in September 2013 by EPA’s Science Advisory Board (“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”).  The report, which was based on review of more than 1,000 scientific studies, is available online at: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345. EPA proposed the rule in April 2014.  A pre-publication copy of the final rule is available online at: http://www2.epa.gov/sites/production/files/2015-05/documents/rule_preamble_web_version.pdf. EPA’s press release describing the final rule is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/62295CDDD6C6B45685257E52004FAC97


On Friday I will return to China for a trip that will take me to the far reaches of Xinjiang Province in China’s far west.  Two days after arriving in Beijing on June 13, I will fly to Urumqi, the provincial capital.  After touring northern Xinjiang and visiting Asia’s largest wind farm, on June 18 I will return to Beijing.  On June 19 I will fly to Shanghai where I will be until June 26. It is unlikely I will be able to post to this blog from China, but posts will appear on my parallel blog at www.globalenvironmentallaw.com