COP21 to Start in Paris, Japan to Resume Antarctic Whaling, Alberta Carbon Tax, Brazil to Seek $5 Billion for Tailings Dam Collapse (by Bob Percival)

World leaders are gathering in Paris tomorrow for the formal opening of the long-awaited 21st Conference of the Parties (COP21) to the UN Framework Convention on Climate Change.  It is widely anticipated that before the conference closes on December 11 a new global agreement will be adopted incorporating national plans to control emissions of greenhouse gases (GHGs).  The terrorist attacks in Paris on November 13 will deflect part of the leaders’ attention as some will be conferring to further coordinate the global response to terrorism.  Today Angola became the 184th country to submit its climate action plan ahead of the formal opening of the conference. In an effort to undermine President Obama’s negotiating position, Senate Majority Leader Mitch McConnell published a harshly critical oped. Mitch McConnell, Obama Takes His Reckless Energy Plan to the United Nations, Washington Post, Nov. 29, 2015 (https://www.washingtonpost.com/opinions/the-president-doesnt-have-the-power-to-sign-onto-international-environment-commitments/2015/11/27/924a45e8-92ee-11e5-a2d6-f57908580b1f_story.html).  McConnell argues that the President’s Clean Energy Plan is likely illegal (again citing Professor Laurence Tribe’s bogus arguments against it), opposed by a majority in Congress and likely to be revoked by a new Republican president.  

Japan sparked international outrage last week when it announced that it would resume whaling in Antarctic waters despite a March 2014 ruling by the International Court of Justice (ICJ) that its previous whaling activities had violated the global moratorium on commercial whaling.  International Court of Justice, Whaling in the Antarctic, Judgment of 31 March 31 2014 (http://www.icj-cij.org/docket/files/148/18136.pdf). Japan had argued that its whaling was legal because it was for “research” purposes, but the ICJ ruled that it was not essential to kill the whales to conduct research.  Japan’s whaling fleet plans to take an average of 333 minke whales per year for the next 12 years, one-third the level of the Japanese fleet’s catch prior to the ICJ ruling.  The governments of Australia and New Zealand, which brought the legal challenge in the ICJ, were joined by Britain in condemning Japan’s announcement.

On November 22, Rachel Notley, Premier of Canada’s province of Alberta, announced a “climate leadership plan” that includes a province-wide carbon tax.  Notley was joined at the announcement by the leaders of the largest companies that extract oil from Alberta’s tar sands, including Suncor Energy and Shell Canada.  Notley was elected premier of Alberta in a surprise electoral result that ended 40 years of conservative rule in the oil-rich province.  Shortly after taking office Notley appointed a five-member panel of experts to develop the climate plan. Although Alberta already has a small carbon tax on industrial users, the new plan will expand the tax to cover end users of energy as well.  The tax will be set at $20/ton of carbon in 2017,  increasing to $30/ton in 2018, and rising annually at a rate of inflation plus 2%.

Brazil’s environmental minister Izabella Teixera announced that the Brazilian government will file a lawsuit seeking more than $5 billion from the mining companies whose tailings dam collapsed in the state of Minas Gerais on November 5.  The collapse flattened the village of Bento Rodrigues, killing at least 13 people (11 are still missing) and engulfed the River Doce in an avalanche of 62 million cubic meters of mud and potentially toxic tailings.  Teixera called the collapse “the country’s biggest environmental catastrophe.” The collapse occurred at an iron ore mine owned by Samarco, a joint venture between global mining giants Vale and BHP Billiton. 

Obama Rejects Keystone XL, Montreal Protocol Focuses on HFCs, Finland Nuclear Waste Repository, Volkswagen Encourages Whistleblowers, U.S. Cuba Marine Agreement, Peabody Settlement (by Bob Percival)

On Friday November 6 President Obama announced that he had accepted Secretary of State John Kerry’s recommendation to reject TransCanada’s application to build the Keystone XL pipeline.  The decision ends a seven-year process during which the pipeline became a top political controversy with strong support from Republicans and opposition from every Democratic presidential candidate.  Announcing his decision, President Obama stated that "America is now a global leader when it comes to taking serious action to fight climate change, and frankly, approving this project would have undercut that leadership."  The President astutely noted that “for years, the Keystone Pipeline has occupied . . . an overinflated role in our political discourse.  It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter.  And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others.”

Meeting in Dubai, the parties to the Montreal Protocol on Substances That Deplete the Ozone Layer agreed to use the Protocol to phase down use of hydrofluorocarbons (HFCs).  In addition to being ozone-depleting substances, HFCs are powerful greenhouse gases.  The “Dubai Path” agreed to by all 197 UN member countries (who also are parties to the Montreal Protocol) will result in a formal amendment in 2016 to formalize the phasedown.   When President Obama first met Chinese President Xi Jinping in California in June 2013, the two countries agreed to pursue an HFC phasedown.  It is estimated that HFC phasedown will avoid the equivalent of emissions of100 billion tons of carbon dioxide.  Once again the Montreal Protocol will prove to be an even more potent mechanism for combatting climate change than the Kyoto Protocol was.

Last week the government of Finland issued a license for the construction of a high-level nuclear waste repository on Olkiluoto Island.  The Posiva repository, which will be the first of its kind in the world, is designed to hold the waste for 100,000 years.  The radioactive waste will be buried inside iron-and-copper capsules 400 meters underground. The capsules will be surrounded by clay barriers and capped with rubble and cement.   The Posiva repository is designed to hold up to 6,500 metric tons of waste, less than a tenth of the 70,000 tons of high-level radioactive waste currently at nuclear power plants in the U.S., which produce another 2,200 tons of waste each year. 

In an unusual move, the management of Volkswagen sent a memo to its employees offering them amnesty if they tell what they know about the emissions testing scandal that has engulfed the company.  The company promised that employees who provide information would not be fired or hit with claims for damages if they come forward by the end of the month.  Jack Ewing & Julie Creswell, Seeking Information, VW Offers Amnesty to Employees, N.Y. Times, Nov. 13, 2015, at B1. The company conceded that it could not provide amnesty from criminal prosecutions, but it noted that cooperation “speaks in the employees favor,” based on past experience.

On November 8 President Ollanta Humala of Peru approved the creation of a 3.3 million acre national park.  The Sierra Del Divisor National Park, which is larger than Yosemite and Yellowstone combined, is the final link in the 67 million acre Andes-Amazon Conservation Corridor.  The creation of contiguous protected areas in different countries will enhance protection for wildlife and other species in the corridor. 

On November 18 the U.S and Cuba signed an agreement pledging cooperation on marine research and protection issues.  Under the agreement, scientists with the U.S. National Oceanic and Atmospheric Administration (NOAA) who are responsible for marine sanctuaries in the Florida Keys and the Texas Flower Garden Banks national sanctuary will work with scientists from Cuba’s Guanahacabibes National Park and Banco de San Antonio in the westernmost part of Cuba.  This agreement has been hailed as opening the door to more extensive environmental cooperation between the two countries in the future.

On November 9 New York Attorney General Eric T. Schneiderman announced that he had settled charges against Peabody Energy for failing to disclose to investors and securities regulators what the company knew about the risks of climate change.  Peabody will not pay any financial penalty, but it agreed to make more detailed disclosures about the impact of climate change risks on the coal company’s future financial prospects.  The action was brought pursuant to New York’s Martin Act that forbids companies from making false representations to investors or securities regulators.  I was quoted in the press as saying that security disclosure requirements can be used as “truth serum” for corporations. David Hasemyer, Peabody Settlement Shows Muscle of Law Now Aimed at Exxon, Inside Climate News, Nov. 10, 2015 (http://insideclimatenews.org/news/10112015/peabody-coal-climate-change-settlement-new-york-ag-exxon-subpoena-investigation).

SEER Conference, Justice Asked to Investigate Exxon on Climate, TransCanada Seeks Suspension of Keystone XL Decision, China Coal Use Underestimated, Senate Tries to Veto WOTUS Rule (by Bob Percival)

On Friday October 30, I spoke on a panel at the 23rd Annual Fall Conference of the ABA Section on Environment, Energy and Resources (SEER) Law, which was held in Chicago.  The panel addressed “Key Developments in Global Environmental Law that U.S. Lawyers Need to Know.”  It apparently was the first time the ABA held a panel on the topic of global environmental law.  Joining me on the panel were Charles DiLeva, Chief Counsel for Environmental and International Law at the World Bank, and Professor Erin Daly from Widener University Delaware School of Law.  I discussed the evolution of the concept of global environmental law and how globalization is blurring traditional distinctions between public and private law and domestic and international law.  Charles discussed issues confronting the World Bank and the ongoing climate negotiations, while Erin focused on environmental provisions in the constitutions of various countries.

Last week more than 40 NGOs signed a letter to Attorney General Loretta Lynch calling for the Justice Department to investigate whether ExxonMobil tried to mislead the public over the threat of global warming and climate change.  Democratic Presidential candidates and members of Congress also called for such an investigation, comparing ExxonMobil’s funding of climate change deniers to historic efforts by the tobacco companies to conceal the risks of smoking.  ExxonMobil denies the charges, claiming that it has long participated in serious scientific efforts and now believes that “there is a definite risk from climate change.”

On November 2, TransCanada asked the U.S. government to suspend any decision on its application to build the Keystone XL Pipeline.  Some observers believe that this is a strategic move taken in anticipation that President Obama will decide against approving the pipeline.  TransCanada apparently believes that a more favorable decision may be reached if it is delayed until after a new President takes office in 2017.  However, word from the White House is that President Obama will decide on Keystone XL before leaving office, despite TransCanada’s request to suspend a decision.

New data show that China has been using 17% more coal than previously reported.  The revised data indicate that China has been emitting much higher levels of greenhouse gases (GHG) than previously thought. The discrepancy is more than one year’s emissions from the country of Germany.  The revised data were published by China’s statistical agency without fanfare.  The International Energy Agency stated that the new data will require it to revise upward its estimates of China’s coal use and GHG emissions. Chris Buckley, China Burns Much More Coal Than Reported, Complicating Climate Talks, N.Y. Times, Nov. 4, 2015.

On Tuesday November 3 I presented a day-long workshop on environmental law to 23 Chinese government officials from Sichuan Province.  The workshop was organized by the Maryland China Initiative and held at the University of Maryland-College Park.  The officials were particularly interested in how U.S. environmental law deals with heavy metal pollution.

On Wednesday November 4, the U.S. Senate voted 53-44 to use the Congressional Review Act in an attempt to veto EPA’s rule clarifying the reach of federal jurisdiction under the Clean Water Act.  EPA adopted what is known as the “waters of the U.S.” (WOTUS) rule in an attempt to clarify the mess left when the Supreme Court split 4-1-4 on the issue in its 2006 Rapanos decision.  Three Democrats joined all but one Republican Senator (Susan Collins of Maine) in voting to veto the rule.  The vote is largely symbolic because President Obama has promised to veto the resolution if it passes Congress.  The Congressional Review Act has only once been used successfully to veto an agency regulation, OSHA’s ergonomics rule issued in the final days of the Clinton Administration in 2001.  The OSHA rule was vetoed by Congress, a veto approved by new President George W. Bush.  Because agencies rarely adopt rules that are opposed by the President, the Congressional Review Act (CRA) is likely to work to veto rules only when there is a change of administration from one political party to another.  One pernicious feature of the CRA is that if a congressional veto is successful the agency is barred from issuing a similar regulation without advance approval from Congress.  That might mean that EPA would be precluded from adopting any other rules to clarify the jurisdictional confusion that has persisted for nearly a decade thanks to the Supreme Court’s inability to agree.