Judge Holds Vale Liable for Brazilian Spill, Record Air Pollution Spurs Vehicle Restrictions in Italy, Court Approves Restart of Two Japanese Reactors, Obama Vetoes EPA Disapproval Resolutions (by Bob Percival

A Brazilian judge has ruled that the Brazilian multinational mining company Vale SA shares liability for the catastrophic tailings spill from a collapsed storage dam operated by Samarco Mineracao SA, a joint venture between Vale and BHP Billiton Ltd.  Judge Marcelo Aguiar Machado found that Vale’s contract to dump tailings into the storage impoundment “is sufficient to lay the foundation for the claim that Vale should be considered a direct polluter and, in this quality, responsible for the environmental damage.  The November 5th collapse unleashed “an avalanche of mud that killed 19 people, destroyed several villages, polluted hundreds of miles of rivers and left a reddish plume in the Atlantic Ocean so vast it was visible from space more than a month later.” Paul Kiernan, Miner Vale Shares Liability in Dam Break, Judge Rules, Wall Street Journal, Dec. 21, 2015. The judge ordered Vale to pay $500 million within 30 days to fund initial cleanup or pay daily fines.

Major cities in Italy - Milan and Rome - have imposed restrictions on vehicle use because of record levels of air pollution.  Unusually mild and dry weather and the absence of wind has contributed to a buildup of high levels of particulates and nitrogen dioxide.  Motor vehicles and home heating systems that are largely unregulated  are two of the primary sources of the pollution. Gaia Pianigiani, Italy, Dirty Air at Record Levels, Is Putting Limits on Traffic, N.Y. Times, Dec. 24, 2015.  The reactors are expected to return to service in late January.

On December 24 a Japanese court approved the restart of two more nuclear reactors that had been shut down in the wake of the 2011 Fukushima Daiichi disaster.  The reactors, which are owned by Kansai Electric Power, are located in the western city of Takahama. The Fukui District Court lifted an injunction after determining that the plant operators had complied with new regulations by Japan’s Nuclear Regulation Authority. The first of the reactors is expected to return to operation in late January 2016.

On December 23 the editors of the Wall Street Journal published an editorial praising Congress for cutting the EPA budget.  “Brushing Back a Lawless EPA,” Wall St. J., Dec. 23, 2015.  The editors noted that the omnibus budget bill funded EPA at a level of $8.1 billion, $451 million less than President Obama had requested.  It noted that EPA now has only 15,000 employees, down from 17,000 at the start of the Obama administration and the lowest level since 1989.  It decried the lack of policy riders to block EPA action, save for one barring EPA from regulating livestock emissions of greenhouse gases (GHGs).  EPA opponents in Congress did try to use the Congressional Review Act (CRA) to veto EPA regulations to limit GHG emissions from power plants.  The CRA creates a special fast-track procedure permitting an up-or-down vote in each house of Congress.  On Nov. 17, 2015, the U.S. Senate passed a joint resolution of disapproval of EPA’s new source performance standard by a vote of 52-46 with only three Democrats supporting the resolution and three Republicans voting against it. The disapproval resolution was adopted by the House by a vote of 235-188 on Dec. 1, 2015, even as the Paris climate negotiations were taking place.  Only four Democrats supported the resolution, while 10 Republicans voted against it.  A resolution disapproving EPA’s GHG regulations for existing power plants passed the Senate on Nov. 17, 2015 by a vote of 52-46.  The resolution passed the House by a vote of 242-180 on Dec. 1, 2015.  This all turned out to be political theater because, as promised, President Obama vetoed both joint resolutions of disapproval on Dec. 18, 2015. As a result, the regulations remain in effect.

Mercury Rule Intact, Last British Coal Mine Closes, Tehran & Delhi Air Pollution, Brazil's Toxic Sludge (by Bob Percival)

A week after the Paris Agreement on climate change was adopted, environmentalists are still enjoying the afterglow that comes from having the entire world now participating in efforts to respond to climate change.  On Monday the New Republic published my article “Can Obama’s Climate Pledges Survive Republican Opposition?” as the lead story on their website at: https://newrepublic.com/article/125735/can-obamas-climate-pledges-survive-republican-opposition.  As noted last week, it is widely agreed that a major factor in reaching the agreement was diplomacy between the U.S. and China that in November 2014 had produced China’s first pledge to cap and reduce its greenhouse gas (GHG) emissions.  Those who participated in the negotiations also had nothing but high praise for the role France played in bringing the parties together.

On December 17 a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed that EPA can keep its regulations controlling mercury emissions from power plants intact while it complies with the Supreme Court’s Michigan v. EPA decision.  Last June the Supreme Court in Michigan v. EPA held that EPA should have considered costs when it initially decided to regulate mercury emissions from power plants.  The mercury rule had not been stayed, however, and virtually all power plants that were not planning to shut down had complied with it.  This confirms what I said in my blog post of July 5, 2015 where I wrote: “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.  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.”

On December 18 the Kellingley Colliery, the last deep coal mine in Britain, closed. In 1981 Britain produced more than 125 million tons of coal each year, but coal production has been steadily declining since then. In the early days of the 20th century more than 1 million people worked in the UK coal industry, but by the 1970s only 250,000 people were employed there.  Some surface coal mines still remain in Britain, but a fall in global demand for coal led to a precipitous decline in the coal industry’s fortunes there.

Government authorities in Iran’s capital of Tehran closed schools for two days beginning on Sunday December 20 because of extraordinarily high levels of air pollution.  (Sundays are a working day in Iran with Friday being the only official weekend day). Schools also were closed in the Iranian cities of Isfahan and Arak. On December 16 the Supreme Court of India responded to high levels of air pollution by banning registration of large (over 2000 cc) diesel vehicles in Delhi until March 31.  The Court also prohibited vehicles transporting goods whose final destination is not Delhi from transiting through the city.  The Court’s order partially reverses an order by the National Green Tribunal banning registration of all diesel vehicles until January 6.  The Court explained that it wanted the wealthier classes who typically own the larger diesel vehicles to bear the brunt of its orders.

An article published last week in the New York Times questions whether the companies responsible for the November toxic sludge spill at an iron ore mine in Brazil will ultimately be held to account for all the damage they have caused. Vanessa Barbera, Brazil’s Toxic Sludge, N.Y. Times, Dec. 17, 2015, at A35.  The article notes that Brazil collects only 3% of the fines it imposes in environmental cases. “According to government statistics, environmental lawbreakers in Brazil paid less than 3 percent of fines levied against them over the past five years. Many people suspect that Vale and BHP will go unpunished and that safety regulations for the mining industry won’t be updated in light of the disaster.”

Historic Climate Agreement in Paris, Paris Trip, "Airpocalypses" in New Delhi and Beijing, Jiangsu High People's Court Delegation (by Bob Percival)

On December 12, 2015, 195 nations unanimously endorsed a new global climate agreement in Paris at the conclusion of the 21st Conference of the Parties to the UN Framework Convention on Climate Change (COP21).  An English version of the Paris Agreement can be accessed online at: http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.  Although the agreement had been widely anticipated for some time, it is a historic achievement because it commits virtually every country in the world for the first time to take action to control emissions of greenhouse gases (GHGs).  While it is well recognized that the intended nationally determined contributions (INDCs) each country made will not, taken together, be sufficient to meet the global target of keeping the rise in global temperatures well below 2 degrees Celsius, countries intend to strengthen their commitments every five years and a robust system of transparency and monitoring will be established to measure progress.  

Tomorrow the global blog “The Conversation” will feature a short article I was asked to write, which is entitled “Promises, Promises: How Legally Durable Are the Pledges the U.S. Made at the Paris Climate Conference?” (http://theconversation.com/promises-promises-how-legally-durable-are-obamas-climate-pledges-51786).  The article reviews why the U.S. emissions reduction pledge made in Paris is on solid legal ground. It notes that unless a president opposed to climate action is elected in 2016, it will be difficult, if not impossible, to reverse the U.S. commitment.  For decades the principal argument that opponents of U.S. action have used is that the U.S. should not act to control its GHG emissions because other countries like China are not required to do so.  Now that virtually every country in the world finally has agreed to control its emissions, it would be the height of folly for the U.S. to step back on its pledge.

I was among the estimated 40,000 people who were in Paris last week for the COP-21 negotiations.  Security had been tightened in the wake of the November 13th terrorist attacks there, but not to ridiculous levels.  On December 4 I participated in the inaugural Climate Law and Governance Day at La Sorbonne Law School.  Mary Robinson, former premier of Ireland, gave a wonderful opening keynote.   The conference was held near the Place du Pantheon where eight, 11-ton pieces of glacial ice had been placed to make a statement on climate change.  The ice came from Greenland and was arranged by artists in the shape of a clock.  On the left bank of the Seine Greenpeace, to protest Japan’s continued whaling, had erected a life size, 110-foot replica of the enormous whale Bluebelle that had been captured in the South Atlantic a century ago.  

In honor of COP-21 the “Scintillance” display of lights along the Champs-Élysées was powered by renewable energy from a solar display, a wind turbine, and electricity generated by humans riding stationary bicycles, walking on treadmills or swinging on swings along the avenue.  On December 7 I attended a conference on “Women on the Front Lines of Climate Change,” sponsored by the Women’s Earth & Climate Action Network International.  Speakers gave their perspectives on how climate change was affecting women throughout the world.  When one speaker decried the fact that the climate negotiations were dominated by “old white men in business suits,” I looked around the room and discovered that I probably was the only old white man in a business suit among the 150 people present.  Another speaker stated that the group’s purpose was “not to put down men, but to elevate women.”  I hope to have a folder of photos from my Paris trip available on this website by the time I make my next blog post.

One of the most important factors in the success of the Paris negotiations was the climate agreement between China and the U.S. announced in November 2014.  Both countries, who are the two largest emitters of GHGs, coordinated their negotiating stances, and when they differed a phone call last week from President Obama to Xi Jinping helped smooth things out.  Last March when I had the privilege of delivering the annual Wallace Stegner Lecture at the University of Utah I entitled it “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Cooperation.” The thrust of my argument was that China so admires U.S. technology and its success in controlling air pollution, which remains an incredibly serious problem there, that it set the stage for the two countries cooperating on environmental issues which could help produce a breakthrough in Paris.  The University of Utah Press is in the final stages of editing my lecture for publication and its basic argument holds up well in light of the Paris Agreement.

Even as the nations of the world were negotiating a historic climate agreement, unbelievably bad air pollution blotted out the skies in New Dehli and Beijing.  Both countries imposed red alert, emergency measures in response to the pollution.  These included shutting down schools and businesses, urging people to stay indoors, and banning half the vehicle fleet from driving on alternate days.  These “airpocalypses” have occurred before, but because residents of Beijing thought progress was being made in reducing air pollution it particularly undermined public confidence there.

After returning to D.C. from Paris, I presented a day-long environmental workshop on Thursday December 10 to a group of 20 judges from the High People’s Court of Jiangsu Province.  The workshop, which was sponsored by the University of Maryland College Park’s Office of China Affairs, was held in College Park.  In the morning I provided a basic introduction to environmental law and in the afternoon I focused on who can sue to protect the environment and issues of environmental standing.  Jiangsu is the province where a court last year convicted 14 people of criminal offenses and fined six companies $26 million for discharging 25,000 tones of chemical waste into two rivers.   This was believed at the time to be the largest fine ever levied in China for environmental violations.