New World Temperature Record, UAE Ends Oil Subsidies, China Protests Myanmar Illegal Logging Convictions, Filipinos Respond to Pope's Climate Message (by Bob Percival)

Evidence that global warming is having real, immediate impacts mounted this week.  Heat waves around the world caused firetrucks to spray water on train tracks in eastern Europe to keep them from warping.  Iraq declared two days of national holidays to keep people indoors as temperatures soared about 50 degrees Celsius (122 degrees Fahrenheit).  The National OceanIc and Atmospheric Administration’s National Centers for Environmental Information announced last week that June 2015 was the hottest June on record.  The period from July 2014 to June 2015 was the hottest 12-month period since temperature recordkeeping began in 1880.  NOAA, Global Analysis-June 2015, online at: https://www.ncdc.noaa.gov/sotc/global/201506

Last week the government of the United Arab Emirates announced that it will end the $7 billion in annual subsidies it provides for petroleum products consumed in the country.  Oil now will be priced at market prices, which will encourage greater use of public transport and more fuel-efficient vehicles. India, Indonesia, Mexico and Egypt also have moved to reduce fuel subsidies, though an effort to do so in Kuwait generated so much public backlash that it was abandoned.  The move to end oil subsidies also will help the UAE government deal with budget problems caused by the plunging price of oil. Simeon Kerr & Pilita Clark, UAE Drops Fuel Subsidies to Bolster Finances, Financial Times, July 23, 2015, at 4.

China has filed a diplomatic protest with the government of Myanmar after 153 Chinese nationals were sentenced to life imprisonment for illegal logging by a court in the city of Myitkyina in northern Myanmar.  The defendants were not sentenced for violating environmental laws, but rather for stealing public property.  They were caught after a raid that netted 400 vehicles and 1,600 logs.  Deputy environmental minister Aye Myint Maung reported that 10,000 tons of illegally harvested timber has been seized by the Myanmar government in the first six months of 2015.  Aung Hla Tun, Myanmar Sentences Chinese Nationals to Life for Illegal Logging, Reuters, July 23, 2015 (http://uk.reuters.com/article/2015/07/23/uk-myanmar-china-idUKKCN0PX03F20150723). 

Filipino Catholics have pledged to gather 10 million of the 20 million signatures sought by the Global Catholic Climate Movement (GCCM) for a petition urging action on a new global climate treaty by delegates to COP-21 in Paris in December.  Lou Arsenio, ecology ministry coordinator for the Archdiocese of Manila, noted that Filipinos are well aware of the dangers of climate change in light of the devastation caused by Typhoon Haiyan, which killed nearly 6,000 people in 2013.

On July 23 Royal Dutch Shell received two permits from the federal government to begin exploratory oil drilling in the waters of the Chukchi Sea off the northwestern coast of Alaska.  Shell announced that it will begin drilling as soon as the area is clear of sea ice.  The U.S. Department of Interior announced that Shell only will be allowed to drill the top portion of exploratory wells until emergency capping equipment is in place.  The equipment has been diverted to Portland, Oregon for repairs after an accident while en route to the drilling site.  While other major oil companies have stopped plans for drilling in the Arctic because they deem it too risky, Shell seems anxious to recoup at least a portion of the billions of dollars it has sunk into the project over the past decade.

I just finished the first week of my two-week summer course in Comparative U.S./China Environmental Law at Vermont Law School.  On Tuesday July 28 I will be giving a “Hot Topics” talk to the VLS community on the unique regime of environmental law applicable to the continent of Antarctica.  Professor Zhao Huiyu, who is co-teaching the Comparative U.S./China course with me, will discuss China’s new public interest litigation law in a “Hot Topics” lecture on July 30.

Arctic Nations Agree to Commercial Fishing Moratorium, ATS Suit Goes Forward, Washington Times Oped, Scalia/Ginsburg World Premier (by Bob Percival)

On July 16 five Arctic nations - the U.S., Russia, Canada, Norway and Denmark - agreed to a moratorium on commercial fishing in the Arctic.  While commercial fishing does not currently occur in the Arctic, the nations emphasized the importance of taking a precautionary approach as global warming makes Arctic waters more accessible.  Greenpeace argued that high seas in the Arctic should be declared a marine sanctuary where oil extraction, commercial fishing, and other commercial activities should be banned.  They also advocated that other countries with large global fishing fleets should endorse the agreement.  Announcement of the agreement, which was largely completed last year, was delayed by controversy over Russia’s intrusion into Ukraine.

Last week a federal district court in Washington unsealed an opinion by Judge Royce Lamberth allowing a lawsuit to go forward against ExxonMobil charging human rights abuses in connection with the development of natural gas facilities in Aceh Province Indonesia in 2000 and 2001.  The plaintiffs allege that Exxon was complicit in the murder of villagers opposed to the project by Indonesian security forces. Judge Lamberth distinguished the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), which dismissed a lawsuit alleging similar abuses by Shell Oil in Nigeria, because Shell is a foreign company while ExxonMobil is headquartered in the United States. Doe v. Exxon Mobil Corp., Civil No. 01-1357 (D.D.C. July 6, 2015). The lawsuit initially was filed in 2001alleging claims arising under the Alien Tort Statute (ATS).  Plaintiffs allege that Exxon violated five norms of international law: norms against torture, extrajudicial killing, cruel inhuman and degrading treatment, arbitrary detention, and disappearance.  The court concluded that jurisdiction is available under the ATS for “claims that sufficiently touch and concern the United States to displace the presumption against extraterritoriality.” The court noted that plaintiffs allege that Exxon executives in the U.S. received regular reports about human rights abuses by their security forces and planned and authorized their actions.

On Tuesday July 14 an oped I wrote was published in the Washington Times.  The oped is entitled “National Standards Are Essential to the Success of U.S. Environmental Law.”  It is available online at: http://www.washingtontimes.com/news/2015/jul/14/celebrate-liberty-month-national-standards-are-ess/  I wrote the oped at the request of the Federalist Society, which had invited top legal scholars (most with a conservative bent - they allowed as how I was being included to add “balance”) to celebrate Liberty Month with a series of opeds.  The oped contrasts environmental considtions in China with those in the U.S. and argues that strict and enforceable federal standards is the key to the success of U.S. environmental law 

Last Saturday July 11 I went to the world premier of an opera written by Derrick Wang, one of my former students.  Four years ago when Derrick was a student in my class he was intrigued that Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg were almost always on the opposite sides of the Court’s decisions he studied.  Knowing that both Justices are huge fans of the opera, Wang, a talented composer before entering law school, approached me with a seemingly crazy idea – to write an opera using the words of both Justices.  I then introduced him to Mike Walker, an adjunct environmental law professor at Maryland who is a member of the Washington Opera Company.   Walker helped facilitate Wang’s efforts, which I agreed to supervise as an independent study project.  The result was an impressive score that includes detailed footnotes documenting the sources of its passages.

Wang’s opera Scalia/Ginsburg was enthusiastically received at its world premier on July 11 at the Castleton Festival.  Walker and I and Justice Ginsburg were part of a wildly enthusiastic audience attending the performance.  A reviewer from the Washington Post called the opera “charming, clever, and amusing,” while noting that it is loaded with insider references appealing to lawyers who follow the Court.   Justice Scalia was out of the country and unable to attend the premier.  However, when excerpts from the opera previously were performed at the Court, Scalia was so impressed that he urged Wang to “quit the law and devote yourself to music.”

In a few hours I leave for Vermont where I will be co-teaching a course in Comparative U.S./China Environmental Law at Vermont Law School during the next two weeks.  This is the fourth year I have taught the course and the second year Professor Zhao Huiyu of Shanghai Jiaotong University KoGuan School of Law has co-taught it with me.

Michigan v. EPA Decided, Brazil & U.S. Climate Pledges, Millennium Development Goals Report, Oklahoma Quake Fracking Suits to Proceed (by Bob Percival)

I was in the U.S. Supreme Court last Monday June 29 when the Court announced its final decisions of its 2014-15 Term.  All nine Justices were present and retired Justice Stevens was in the audience.  Normally there is not much drama associated with the announcement of decisions, but this day was different.  The first half hour was occupied by the unusual spectacle of four Justices making statements concerning the Court’s 5-4 decision rejecting a claim that the use of a particular drug in lethal injections to carry out the death penalty constituted cruel and unusual punishment.  After Justice Alito described his majority opinion and criticized the dissents in unusually tendentious terms, Justice Sotomayor made a passionate statement describing her dissent. Justice Breyer then described why he and Justice Ginsburg have decided that the death penalty is unconstitutional.  Surprisingly, Justice Scalia then insisted on presenting a rebuttal, something that may be unprecedented during the Court’s announcement of opinions.  He expressed his continued outrage with the Court’s June 26th decision recognizing a constitutional right for same sex couples to marry, which he described as five Justices imposing “their personal policy preferences” on the nation.  He stated that the view that the death penalty was unconstitutional, expressed by Justices Breyer and Ginsburg, represented a similar attempt to constitutionalize “personal policy preferences.”

When the Chief Justice then announced that Justice Ginsburg had the next majority opinion, I briefly hoped it would be Michigan v. EPA, one of only two cases remaining to be decided.  Unfortunately for EPA, Justice Ginsburg had the 5-4 decision upholding Arizona’s use of a redistricting commission.  Justice Scalia announced the majority opinion in Michigan v. EPA.  A copy of the decision is available online at: http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf.  By a 5-4 majority, the Court held that the words “appropriate and necessary” in § 112(n)(1)(A) of the Clean Air Act required EPA to consider costs when it made the initial decision to regulate emissions of mercury and air toxics from power plants.  Scalia held that EPA’s subsequent consideration of costs when it promulgated the mercury and air toxics regulations was insufficient to comply with the statute.

While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision.  EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported.  Emily Atkin, What Everyone Is Getting Wrong About the Supreme Court’s Mercury Pollution Ruling, Climate Progress, June 29, 2015 (http://thinkprogress.org/climate/2015/06/29/3675141/no-supreme-court-did-not-invalidate-mercury-rule/). Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated.  Moreover, virtually all the power plants that did not intend simply to shut down in response to the regulations are now in compliance with them (the regulations were not stayed pending judicial review).  Thus, there is now a strong consensus that the decision, while unfortunate, is certainly not a huge loss for EPA.  See, e.g., Alex Guillén, Supreme Court’s Ruling Comes Too Late for Coal, Politico, June 29, 2015 (http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissions-obama-environment-119541.html); Jack Lienke, Here’s Why You Shouldn’t Worry About the Supreme Court’s Latest Environmental Ruling, Grist, June 30, 2015 (http://grist.org/climate-energy/heres-why-you-shouldnt-worry-about-the-supreme-courts-latest-environmental-ruling/?utm_source=twitter&utm_medium=tweet&utm_campaign=socialflow).

Last week Brazilian President Dilma Rousseff visited the United States and met with President Obama at the White House.  On June 30, the leaders of the two most populous countries in the Western Hemisphere, released a joint statement pledging that by 2030 at least 20% of each nation’s electricity would be generated by renewable sources, not including hydropower. Brazil also pledged to restore 12 million hectares (more than 46,000 square miles) of its forests by 2030, to intensify efforts to eliminate illegal deforestation, and to reduce the carbon intensity of its economy by 60-65%.  Last week China filed a pledge with the UN that confirmed its November 2014 climate agreement with the U.S., pledging a 40-45% reduction in the carbon intensity of its economy by 2030.  China also reaffirmed its agreement that it would generate at least 20% of its electricity from non-fossil fuel sources by 2030.

On June 30 the World Health Organization (WHO) and UNICEF issued a report tracking global progress in meeting the Millenium Development Goals for access to safe drinking water and sanitation.  A copy of the report, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment, is available online at: http://apps.who.int/iris/bitstream/10665/177752/1/9789241509145_eng.pdf?ua=1.  The good news in the report is that since 1990 2.6 billion people (including 427 million in sub-Saharan Africa) have gained access to an improved drinking water source (defined as a facility or delivery point that protects water from open contamination).  The bad news is that 2.4 billion people, one in three of the world population, still lack access to sanitation facilities that hygienically separate human excreta from human contact and 946 million people still have to defecate in the open. Only 68% of the world’s population uses an improved sanitation facility, nine percentage points below the Millenium Development Goal target of 77% for 2015.

By a vote of 7-0, the Oklahoma Supreme Court ruled last week that homeowners who suffered damage from an unusual swarm of earthquakes since November 2011 can pursue lawsuits against oil and gas companies whose fracking they allege caused the quakes.  Plaintiffs in the lawsuits are two residents of Prague, Oklahoma, Sandra Lada and Jennifer L. Cooper.  Cooper’s lawsuit is being brought as a class action on behalf of residents of nine counties that have sustained potentially millions of dollars in property damage from the quakes.  The defendants - New Dominion, LLC of Tulsa, and Spess Oil Co. of Cleveland, Oklahoma - argued that regulation of oil and gas extraction activities by the state Corporation Commissions should insulate them from liability.  The court rejected this argument, concluding that: “Allowing district courts to have jurisdiction in these types of private matters does not exercise inappropriate ‘oversight and control’ over the (Corporation Commission). Rather, it conforms to the long-held rule that district courts have exclusive jurisdiction over private tort actions when regulated oil and gas operations are at issue.” Studies increasingly are linking seismic activity to high-pressure injection activities.