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.