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.