IUCN Colloquium, Volkswagen Emissions Scandal, Pope Francis & Xi Jinping Visit U.S., Global Air Pollution Toll, Lahore Climate Decision (by Bob Percival)

It has been two weeks since I returned from Jakarta where I joined three of my former students in making presentations at the IUCN Academy of Environmental Law’s 13th annual colloquium at Atma Jaya University.  The theme of this year colloquium was “Forest and Marine Biodiversity.” In my presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law,” I explored the impact of Marsh’s 1864 book The Earth as Modified by Human Action, which helped launch a global movement to establish protected areas. Maryland 2L Renee Lani presented a paper on how the Lacey Act has been used to discourage importation of illegally harvested timber. Maryland 3L Maryann Hong discussed the impact of free trade agreements on global tobacco control efforts.  Taylor Kasky (Maryland Class of 2015) considered the impact of trade liberalization on global agriculture and food security in her presentation.

Rick Beckel, a 2015 graduate of my alma mater Macalester College, who served as a Global Environmental Justice Fellow at the law school this summer, made a presentation in which he analyzed how the concept of ecosystem services can be used to enhance efforts to preserve biodiversity. The Colloquium featured several notable speakers such as former International Court of Justice Judge Christopher Weeramantry, former Philippine Supreme Court Chief Justice Hilario Davide, Jr. and current Brazilian Supreme Court Justice Antonio Benjamin.

The most stunning news of the last two weeks has been the announcement by the U.S. Environmental Protection Agency (EPA) that Volkswagen installed software on its diesel vehicles that disabled their pollution control devices except when they were being tested.  After initially acknowledging that this software was installed on 482,000 vehicles Volkswagen sold in the U.S., the company later admitted that it was installed on 11 million vehicles worldwide.  This revelation led to the resignation of the company’s CEO and universal condemnation of the company.  Because the Clean Air Act provides for civil penalties of $37,500 per vehicle, the fine in the U.S. alone could be as high as $18 billion. But this is clearly a case where severe criminal penalties are warranted against the executives involved in this deception, which resulted in much higher levels of pollution from vehicles Volkswagen was touting as “green diesels”.  Title II of the Clean Air Act that governs mobile sources provides for civil penalties and it allows EPA to apply an administrative penalty of up to $200,000 that can be levied in a greater amount with the consent of the Attorney General.  The catch-all criminal penalty provisions of §113 do not specifically refer to violations by mobile sources, but they cover making false material statements, representations or certifications.

Last week Pope Francis and Chinese President Xi Jinping visited the U.S.  On September 24 Pope Francis addressed a joint session of Congress. Quoting from his encyclical Laudato Si he called “for a courageous and responsible effort to ‘redirect our steps’ and to avert the most serious effects of the environmental deterioration caused by human activity.”  He expressed the conviction “that we can make a difference and . . . that the United States – and this Congress – have an important role to play.”  President Obama hosted a state dinner for Xi Jinping on September 25.  The Chinese President announced that China would establish a nationwide cap-and-trade program for carbon emissions, based on the seven pilot emissions trading programs that the country has established in major Chinese cities.

In a study published in the Journal Nature on September 16, a group of epidemiologists estimates that outdoor air pollution, primarily PM2.5, causes 3.3 million premature deaths worldwide annually.  J. Lelieveld, J.S. Evans, M. Fnais, D. Giannadaki & A. Pozzer, The Contribution of Outdoor Air Pollution Surces to Premature Mortality on a Global Scale,525 Nature 367 (2015), published online at: http://www.nature.com/nature/journal/v525/n7569/full/nature15371.html. The scientists warn that if present trends continue 6.6 million people will die annually from air pollution by the year 2050.

On September 14 Judge Syed Mansoor Ali Shah of Pakistan’s Lahore High Court’s Green Bench found that the Pakistan government was not doing enough to combat climate change, which he described as “the most serious threat” faced by the country.  He ordered all of Pakistan’s relevant ministries to appoint point persons to deal with the issue and he established a Climate Change Commission to ensure that the government implement its climate commitments.  The court ruled in a public interest litigation (PIL) case brought by a farmer, Ashgar Leghari.

Canadian Supreme Court Rules Against Chevron in Ecuador Case, Dutch Court Holds Drillers Liable for Earthquake Damage, Global Tree Census, IUCN AEL Colloquium (by Bob Percival)

On September 4 the Supreme Court of Canada rejected Chevron’s claim that its Canadian assets cannot be used to satisfy a $9.5 billion judgment against it for oil pollution in Ecuador.  By a vote of 7-0, the Court upheld a December 2013 decision by the Ontario Court of Appeals rejecting Chevron’s claim that its Canadian subsidiary was a distinct corporate entity whose assets could not be used to satisfy a judgment against the parent corporation (see Dec. 22, 2013 blog post).  In the decision below the Court of Appeals famously had said: “Even before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. ‘We’re going to fight this until hell freezes over.  And then we’ll fight it on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction.  At this juncture, Ontario is that jurisdiction.” It is estimated that Chevron has $15 billion in assets in Canada.  

This decision is very significant because it rejects the corporate shell game defense that Chevron so far has used successfully in Argentina and Brazil to resist enforcement of the judgement.  The case now returns to the Ontario trial court where Chevron likely will claim that the Ecuador court’s judgment was obtained through fraud.  A federal district court in New York has agreed with Chevron’s claim in a RICO suit brought by the oil conglomerate, but that decision currently is under review by the U.S. Court of Appeals for the Second Circuit.

On September 2 a Dutch court in Assen held liable a joint venture between Royal Dutch Shell and Exxon Mobil (known as NAM) for declining property values caused by earthquakes related to natural gas production at the Gronigen field.  Twice this year the Dutch government has ordered reductions in production at the field because of the earthquakes.  The Dutch Safety Board, an independent organization funded by the Dutch government, previously had determined that the companies and Dutch regulators had failed adequately to consider the danger of earthquakes from natural gas production in the field. It is believed that the damages due homeowners could run into the billions of euros.  Reuters, Dutch Court Finds Gas Venture Liable for Earthquake Claims, N.Y. Times, Sept. 3, 2015, at B2.

On September 3 Nature magazine published the first comprehensive census of the world’s population of trees. T.W. Crowther, et al., Mapping Tree Density at a Global Scale, 1038 Nature 14967 (2015), online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature14967.html#close.  Using both sophisticated satellite imaging and on the ground tree counting, the researchers estimated that the planet has approximately 3.04 trillion trees, far more than previous estimates. “Of these trees, approximately 1.39 trillion exist in tropical and subtropical forests, with 0.74 trillion in boreal regions and 0.61 trillion in temperate regions.”  The study estimates that more than 15 billion trees are cut down each year, and that the global number of trees has fallen by approximately 46% since the start of human civilization.

Last week climate negotiations concluded in Bonn, Germany in preparation for the all-important COP-21 meetings in Paris in December.  The tenth part of the second session of the Ad Hoc Working Group on the Durban Platform for Advanced Action (ADP) was held from August 31-September 4.  As usual, some progress was made, though several difficult issues remain to be worked out.  The World Resources Institute reported the following: “While progress was uneven at times, the Bonn negotiators identified the most essential issues and began crafting a coherent architecture for the agreement. It was as though they were in a garage attempting to build an engine (battery powered of course), with parts lying about. Their task was to distinguish the various pieces, put them into clear categories, and then figure out how they should be ordered to build the engine. It’s a work in progress. The pieces are coming together, though you can’t see exactly what the final product will look like at this point.”

I currently am in Jakarta, Indonesia to participate in the 13th Annual Colloquium of the IUCN Academy of Environmental Law.  The theme of this year’s colloquium, which is being hosted by the Atma Jaya Catholic University of Indonesia, is “Forest and Marine Biodiversity.”  I will be giving a presentation on “The Intellectual Heritage of George Perkins Marsh: Forest Preservation and the Roots of Global Environmental Law.”  Two Maryland law students and a recent Maryland grad also will be presenting papers at the Colloquium, which includes environmental law experts from nearly 50 countries.