Air Pollution Red Alerts in China, Gates Launches $1 Billion Clean Energy Fund, EPA Fracking Study, First U.S. Offshore Wind (by Bob Percival)

China’s Ministry of Environmental Protection reported that 22 Chinese cities, including Beijing, had declared a “red alert” because of horrendous air pollution on Friday Dec. 16. Nurseries and primary schools were closed, road work was suspended, high-emission vehicles were banned from the roads, and some factories were required to slow or shut down production.  This was the first red alert for Beijing since December 2015.  Several days before, citizens protesting air pollution had been arrested in Chengdu after placing masks over statues.

Billionaire Microsoft founder Bill Gates announced the launch of a $1 billion private fund to invest in new clean energy projects.  Called Breakthrough Energy Ventures, the fund will invest in “scientific breakthroughs that have the potential to deliver cheap and reliable clean energy to the world.”  Other investors in the fund include former New York City mayor Michael Bloomberg, Alibaba founder Jack Ma, and Amazon CEO Jeff Bezos.  A year ago Gates put together the Breakthrough Energy Coalition of 20 billionaires who committed to investing in new forms of energy.

Last week EPA issued the final version of its five-year study of the impact of hydraulic fracturing on groundwater.   The draft report EPA had issued for public comment a year ago stated that fracking has not “led to widespread, systemic impact on drinking water resources in the United States.”  The new final report deletes this conclusion and states that fracking “can impact drinking water resources under some circumstances” with effects that “can range in frequency and severity” depending on the circumstances.  EPA finds that “significant data gaps and uncertainties” preclude it from “calculating or estimating the national frequency of impacts.”  The report is being viewed by many observers as supporting better regulation of fracking, rather than an outright ban.

After four months of testing, the first offshore wind project in the U.S. became operational on December 12.  The Block Island Wind Farm off the coast of Rhode Island consists of five turbines that generate 30MW of electricity.  The project, which took two years to complete, was completed on-time and on-budget.  It is the first offshore wind farm outside of Europe to become operational.

Last week I reported that president-elect Donald Trump had selected Cathy McMorris Rodgers to be his Secretary of Interior.  That report proved to be premature.  Reportedly, Trump’s sons Donald Jr. and Eric helped convince him instead to select Montana congressman Ryan Zinke.  Zinke, who is a former Navy Seal, is serving his first term in Congress. While Rodgers had a 5% voting rating from the League of Conservation Voters, Zinke’s rating from the group is 3%.  However, Zinke reportedly is not in favor of widespread transfers of federal land to states or private interests.

World Bank Conference, Trump Picks Pruitt for EPA, HFC Phaseout, ICAO Airline Emissions Agreement (by Bob Percival)

On Monday I spoke on the opening day of the World Bank’s week-long conference on Law, Climate Change and Development.  The conference was part of the bank’s Law, Justice and Development Week.  It was held at the bank’s headquarters in Washington, D.C.  The conference opened with a keynote address by Achim Steiner, former head of the United Nations Environment Programme.  Both Steiner and bank president Jim Yong Kim expressed hope that global momentum to address climate change will not be derailed by political developments.  While they did not specifically mention the U.S. or the election of Donald Trump, it was clear that this was on the minds not only of the speakers but of most of the members of the audience.

I was on a panel on “Which Climate Change Regime Are You?”  Amir Sokolowksi from Legal Atlas presented his fascinating work comparing the framework laws that different countries are adopting to respond to climate change.  He examined the laws adopted by Sri Lanka, Kenya, and Guatemala.  I responded to his paper by explaining why the U.S. tried, but was unable, to adopt a framework law on climate change.  Searching the database I have compiled of the text of the major federal environmental statutes for my annual Statutory & Case Supplement, I found only one reference to “climate change” in the text of existing U.S. laws.  Yet the U.S. has managed to put together a robust program to control emissions of greenhouse gases.

It has been months since my last blog entry and the political earthquake that was the U.S. presidential election occurred during this period.  This week president-elect Donald Trump announced that he had selected Oklahoma Attorney General Scott Pruitt to be EPA Administrator and Washington Congresswoman Cathy McMorris Rodgers to lead the U.S. Department of Interior.  Pruitt is a climate change denier and he has been one of the harshest critics of EPA. Rodgers has a 5% rating from the League of Conservation Voters.  Both nominations, which must be confirmed by the Senate, indicate that Trump is planning aggressive attempts to roll back environmental protections.  

Much has happened in the last four months since my last blog entry.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, adopted far-reaching measures to phase out hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances, on a global basis. It is estimated that this measure alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy.

At the beginning of October the International Civil Aviation Organization (ICAO), meeting in Montreal, adopted a plan to require airlines to offset the greenhouse gas emissions from their international flights beginning in 2020.  This also is a remarkable achievement for global environmental law.  It was spawned in large part by the EU’s efforts to require airlines flying to and from Europe to pay emissions charges.  Although Russia, India, China and the U.S. fiercely resisted the EU’s efforts, they were upheld by the European Court of Justice and suspended only after the ICAO agreed to convene negotiations for a global agreement.

Back after Summer Hiatus: China, Norway, Vermont, China (by Bob Percival)

This has been a very busy summer, which has spawned my first two-month hiatus in updating this blog.  During the week of June 13 I was in Beijing where I spoke at a conference on New Directions in Environmental Governance and participated in a judicial training program for more than 200 judges from China's environmental courts, sponsored by the Supreme People's Court and Client Earth.  Further details are available at the University of Maryland Carey School of Law website at: https://www.law.umaryland.edu/about/features/feature_details.html?feature=467

The following week I was in Oslo, Norway for the 14th Colloquium of the IUCN Academy of Environmental Law.  Four of my students made presentations at the conference and I spoke on the "Top Judicial Decisions in the History of Global Environmental Law."  Further details are available at: https://www.law.umaryland.edu/about/news_details.html?news=1734

I've just finished two weeks teaching Comparative U.S./China Environmental Law at Vermont Law School.  This was my fifth year teaching the course.  In a few hours I will leave for China to take some of my Vermont students on an environmental field trip.  I will be back on August 21 in time to start fall semester classes on August 22.

After I am back I plan to give this blog a new look with lots of new photos.

TSCA Reform Legislation Enacted, Supreme Court Decides Hawkes Case, Modi Visit, Vietnam Fish Kills, China Trip (by Bob Percival)

On June 7 the U.S. Senate by a voice vote passed the Frank Lautenberg Chemical Safety for the 21st Century Act.  The legislation, which now goes to President Obama for his signature, had passed the U.S. House by a vote of 403-12 on May 24.  In 2015 both houses had passed separate versions of the legislation, which comprehensively reforms the Toxic Substances Control Act (TSCA). This is the first comprehensive updating of TSCA since it was first adopted in 1976.  The legislation is the product of a bipartisan agreement initially announced in May 2013 by Democratic Senator Frank Lautenberg and Republican Senator David Vitter.  The final legislation is named in tribute to Lautenberg, who died suddenly less than two weeks after reaching the agreement.  New Mexico Senator Tom Udall became the chief Democratic champion of the legislation after Lautenberg’s death.  The legislation requires EPA to set risk-based priorities for testing and evaluation of chemicals and it requires the chemical industry to contribute funding to support such efforts.  It was supported by both the chemical industry and major environmental groups, including the Environmental Defense Fund.  A few environmentalists and some state officials complained that the legislation was not stringent enough and could preempt state regulations.  However, it is widely agreed that the legislation was far better than the existing law, which puts too great a burden on EPA to use cost-benefit to justify regulation and preempts state regulation of chemicals regulated by EPA.  

On May 31 the U.S. Supreme Court ruled unanimously that jurisdictional determinations (JDs) by the U.S. Army Corps of Engineers that property contains wetlands subject to § 404 of the Clean Water Act are judicially reviewable.  The decision was not a surprise, even though most U.S. Courts of Appeals had ruled that the issuance of a JD did not trigger judicial review.  In a majority opinion written by Chief Justice Roberts, the Court held that the issuance of a JD is “final agency action” that may be challenged in court under the Administrative Procedure Act because it is definitive in nature and has direct legal consequences.  The Chief Justice noted that a memorandum of understanding between the Corps and EPA makes a JD binding on both agencies for five years.  An extraordinary concurring opinion by Justice Kennedy, joined by Justices Thomas and Alito,  harshly criticized the “ominous reach” of the Clean Water Act (CWA) and stated that the CWA “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” 

Each summer Wolters Kluwer publishes a new edition of my book Environmental Law: Statutory and Case Supplement.  I am pleased to announce that the 2016-17 supplement has now been sent to the copyeditor and will be in bookstores the first week in August.  This year’s supplement includes not only the Supreme Court’s Hawkes decision, but also the Frank Lautenberg Chemical Safety for the 21st Century Act.

During Indian Prime Minister Nerendra Modi’s visit to the U.S. this week, President Obama pushed hard to encourage the Indian leader to accelerate the development of renewable energy to slow the rise of greenhouse gas emissions in India. Both leaders affirmed their commitment to the Paris Accord and pledged to reach agreement on measures to phase out HFCs, a potent greenhouse gas using the Montreal Protocol on Substances that Deplete the Ozone Layer.  The two leaders set a one-year deadline for concluding a deal for the U.S. to sell six, new commercial nuclear reactors to India.  A major obstacle to the deal is an Indian law that would hold the vendors of such reactors liable for damages in the event of a nuclear accident.

Public protests continue in Vietnam over massive fish kills from pollution believed to come from a new Taiwanese steel plant.  The fishing industry along a 120-mile swath of coastline has been devastated and many people have become ill from eating contaminated fish during the last two months.  The protests continue despite government efforts to suppress them, including hundreds of arrests and beatings of demonstrators.  Last April a representative of the steel company outraged fisherman by stating, “You have to decide whether to catch fish and shrimp or to build a modern steel industry. Even if you are the prime minister, you cannot choose both.”.”Richard C. Paddock, Toxic Fish in VIetnam Idle a Local Industry and Challenge the State, N.Y. Times, June 8, 2016.

Next week I will be in China to speak at two conferences in Beijing.  On Tuesday June 14 I will be at Tsinghua University where Professor Zhao Huiyu of Shanghai Jiatong University’s KoGuan Schoo of Law and I will make a presentation comparing environmental federalism in China and the U.S.  This conference is sponsored by the University of Chicago/Tsinghua China Center.  On Thursday June 16 I will be speaking to Chinese judges at the National Judge’s College for a program organized by the Supreme People’s Court and the UK-based NGO ClientEarth.  I will be speaking on the role of the U.S. Supreme Court in shaping the development of modern environmental law.

Clean Power Plan to Be Heard En Banc, Supreme Court Denies Exxon Review of MTBE Judgment, UNEP & WHO Assemblies (by Bob Percival)

Acting sua sponte, the U.S. Court of Appeals for the D.C. Circuit announced on May 16 that it will hear the legal challenges to EPA’s Clean Power Plan en banc.  The court rescheduled the date for oral argument from June 2 to September 27.  Thus, instead of being heard initially by a three-judge panel, the case will be heard by the entire court.  However, due to Judge Merrick Garland’s nomination to the U.S. Supreme Court, he will not be among the judges hearing the case.  Judge Nina Pillard also did not participate in the decision to take the case en banc, making it likely that the en banc court hearing the case will consist of only nine of the 11 judges on the court.  The delay in the oral argument means that the court’s decision is not likely to be issued until after the presidential election.  But it ultimately may slightly accelerate Supreme Court review by eliminating efforts to get any panel decision reheard en banc.  With the two recusals, five of the nine remaining judges hearing the case were appointed by Democratic presidents and are believed by most observers to be favorably disposed to EPA.

On May 16 the U.S. Supreme Court refused ExxonMobil’s request to review a New Hampshire Supreme Court decision upholding a $236 million judgment against the company for contaminating groundwater supplies with the gasoline additive methyl tertiary butyl ether (MTBE).  The state of New Hampshire had sued 16 oil companies in 2003.  Fifteen of them settled, but Exxon went to trial.  Exxon argued that its due process rights were violated by the use of market share liability to estimate its share of the contamination and that any liability should be preempted by the federal Clean Air Act directive to oxygenate gasoline.

From May 23-27, the second session of the United Nations Environment Assembly (UNEA-2) was held in Nairobi under the sponsorship of the UN Environment Programme (UNEP).  The theme of the assembly was “Delivering on the Environmental Dimension of the 2030 Agenda for Sustainable Development.”  All 193 member states of the UN are members of UNEA, which has been described as a “Parliament of the Environment.” UNEA, which sets UNEP’s agenda, was established as part of an effort to strengthen UNEP, a decision made at the UN’s “Rio+20” Earth Summit in 2012. The first session of the assembly was held in 2014.  Twenty-five resolutions were adopted at UNEA-2, addressing issues such as marine litter, the illegal trade in wildlife, air pollution, chemicals and waste, and sustainable consumption and production - which are an integral part of the global action needed to implement the 2030 Agenda for Sustainable Development and the Paris Climate Agreement.  A complete set of the resolutions will be posted online at: http://web.unep.org/unea

From May 23-28 the World Health Organization held its 69th World Health Assembly in Geneva, Switzerland.  The World Health Assembly, comprised of WHO’s members is the organization’s decision-making body.  Delegates agreed to a comprehensive series of steps to pursue the health-related Sustainable Development Goals. They also adopted the WHO Framework of Engagement with Non-State Actors (FENSA), which establishes “comprehensive policies and procedures on engaging with nongovernmental organizations, private sector entities, philanthropic foundations and academic institutions.”  The Framework is designed to enhance transparency and accountability in WHO’s engagement with non-State actors and to protect WHO’s work from conflicts of interest and undue influence from external actors.  

On May 24, the U.S. House of Representatives voted 403-12 to approve the Frank R. Lautenberg Chemical Safety for the Twenty-first Century Act. The legislation reconciles different versions of legislation passed by each house last year that would comprehensively reform the Toxic Substances Control Act (TSCA).  The legislation gives EPA greater authority to require chemical testing and otherwise strengthens the 40-year old TSCA.  A description of its provisions is available at: http://blogs.edf.org/health/files/2016/05/Major-features-of-FRL21-5-23-16.pdf.  It was widely anticipated that the Senate would also approve the legislation on May 26, sending it to President Obama for his signature, but a last-minute hold by Senator Rand Paul prevented Senate passage before Congress adjourned for the Memorial Day recess.

On Friday May 20, the University of Maryland Carey School of Law held its commencement exercises.  Secretary of Labor Tom Perez gave a great graduation address where he praised Maryland’s Environmental Law Program.  A total of 14 graduating students received their certificates of concentration in environmental law.  On May 25 I was the guest speaker for a Global Youth/Health Forum webinar on “The Role of Civil Society in Reducing Air Pollution and Ensuring a Healthier World,” co-sponsored by co-sponsored by the Millenium Campus Network and Youth Action.  

Air Pollution Worsens Outside U.S., Garland Lists ESA Case as One of His 10 Top Decisions, China Adopts NGO Law, $44 Billion Brazilian Dam Collapse Suit, Nordic Summit (by Bob Percival)

On May 12 the World Health Organization released its latest update to its global urban air quality database.  The study found that more than 80 percent of people living in urban areas that monitor air pollution are exposed to unhealthy levels of air pollution. In low- and middle-income countries a shocking 98% of people living in cities with populations of more than 100,000 breathe unhealthy air.  In high-income countries only 56% of the urban population breathes unhealthy air.  In the 795 cities in 67 countries studied by WHO, urban air pollution increased by 8% last year.  Chris Mooney and Brady Dennis, Air Pollution Getting Worse in World’s Cities, WHO Reports, Washington Post, May 13, at A9.  WHO Global Urban Ambient Air Pollution Database (update 2016) http://www.who.int/phe/health_topics/outdoorair/databases/cities/en/ WHO estimates that air polltion now causes more than 3 million deaths a year, a number expected to double by 2050 as urban pollutions and vehicle use grows rapidly.

On Tuesday May 10 D.C. Circuit Judge Merrick Garland delivered a completed questionnaire to the Senate Judiciary Committee even though the committee had not asked him to do so since it is refusing to consider his nomination.  On the questionnaire Judge Garland lists one environmental case among his list of what he considers to be his ten most significant judicial decisions.  That case is Rancho Viejo v. Norton, which upheld the power of Congress under the Constitution’s commerce clause to regulate to protect an endangered species of toad.   This is the decision that became famous during the confirmation hearings for Chief Justice John Roberts in 2005.  Roberts defended his vote to rehear the case not as indicating that he thought the Endangered Species Act was unconstitutional, but rather as spawned by a desire to develop a consistent rationale for upholding the Act’s constitutionality.  I discussed this on Thursday during a “Supreme Court Update” that I presented at a program sponsored by the ABA’s Section on Litigation at Morgan, Lewis & Bockius in Washington, D.C.  I learned that C-Span last week began airing the program I did last month at the Cato Foundation where I condemned the politicization of the Court’s by the Senate Leadership who are refusing to consider the Garland nomination.  The program is available on C-Span’s website with a transcript keyed to the video at: http://www.c-span.org/video/?408513-1/book-discussion-republican-constitution

Environmental groups in China are mulling over the potential impact of a law approved by the Standing Committee of China’s National People’s Congress on April 28, 2016.  The Law on the Administration of Activities by Foreign Non-Governmental Organizations within the People’s Republic of China imposes strict regulations on the activities of foreign non-governmental organizations (NGOs) in China.  It requires annual reporting of planned NGO activities and authorizes local police and security forces to supervise and audit NGO activities.  Student exchanges are exempted from the law and the activities of environmental NGOs are given favorable treatment.  However, my sources in China indicate that the law is quite vague, and may give greater license to authorities to crack down on anything NGOs do that they do not like.  

On May 2 Brazilian prosecutors filed a 359-page civil lawsuit seeking $44 billion in damages from mining giants Vale and BHP Billiton for the 2015 collapse of a tailings dam at their Samarco project, which killed 17 people and caused massive environmental damage.  The size of the claim shocked many investors who had assumed that a $3 billion settlement reached by the companies by the government in March would encompass most of the companies’ liability.  Many lawyers were skeptical of the prosecutors’ ability to recover anything like $44 billion, noting that an $11 billion claim brought against Chevron for a Brazilian oil spill in 2011 eventually was settled for only $42 million.  However, the Brazilian government noted that the size of the most recent disaster was equivalent to the BP oil spill that has resulted in similarly large damages.   Samantha Pearson & James Wilson, Vale and BHP Rocked by $44 Billion Dam Lawsuit, Financial Times, May 5, 2016, at 14. 

On May 2 the Supreme Court of Colorado struck down two local laws - one that banned hydraulic fracturing and another imposing a moratorium on fracking operations. The rulings declared that local regulation of fracking was preempted by state law.   The Texas Supreme Court previously struck down Houston’s air pollution control law holding that it was preempted by state law.

This week President Obama held a joint meeting at the White House with the leaders of Sweden, Norway, Denmark, Finland and Iceland.  While much of the “Nordic Summit” was focused on national security and immigration issues, the joint statement released by the leaders has a significant environmental component (https://www.whitehouse.gov/the-press-office/2016/05/13/us-nordic-leaders-summit-joint-statement).  It does not adopt environmentalists’s call for a complete ban on oil drilling in the arctic, Nordic Summit, Juliet Eilperin, Drilling in Arctic Ebbs Amid Calls for Full Ban, Washington Post, May 11, 2016, at A6, but it emphasizes the importance of all countries carrying out the Paris Agreement on climate change and it pledges continuity as the leadership of the Arctic Council passes from the U.S. to Finland and then Iceland.

World Environmental Law Congress in Rio, Thirtieth Anniversary of Chernobyl (by Bob Percival)

Last week I was in Rio de Janeiro for the first World Environmental Law Congress.  The Congress was the brainchild of Brazilian Supreme Court Justice Antonio Benjamin, who currently is the chair of the IUCN World Commission on Environmental Law (WCEL).   Because it was scheduled to coincide with the launch of the new Global Judicial Institute for the Environment, the Congress attracted the participation of judges from all over the world as well as a “who’s who” of environmental law scholars.  Altogether there were several hundred participants from scores of countries, including 23 countries in Africa.  Prior to the opening of the Congress on April 27, a colloquium was held for early career environmental law experts who participated in a “lightning round” of brainstorming concerning ways to improve the effectiveness of environmental law.

The Congress opened in the Supreme Court of Rio de Janeiro with a performance by the National Symphony of Brazil.  Chief Justice Ricardo Lorenzetti of the Supreme Court of Argentina gave the keynote opening address.  He emphasized the transformative nature of the environmental paradigm in the context of law and argued that, as with human rights law, the environmental rule of law should protect the weaker party, which is nature.  The 50th Anniversary of the IUCN’s red list of threatened species was then marked with the launch of a Brazilian postage stamp honoring the golden lion tamarin.  Professor Adelmar Faria Coimbra Filho, a biologist who played a leading role in saving the golden lion tamarin was honored.  In his remarks, Professor Coimbra, who was the first director of Rio’s Center for Primatology, argued that it actually should be called the red lion tamarin because it only looks golden when malnourished.  The tamarin, which is only found in the state of Rio de Janeiro, is the only primate in the last 30 years whose status has been upgraded due to conservation efforts.

On Thursday April 28, the morning session of the Congress featured an address by Justice Shen Deyong, the acting Chief Justice of China’s Supreme People’s Court.  Pace University Professor Nick Robinson, who joined Dr. Parvez Hassan in presenting a WCEL Lifetime Achievement Award to Wolfgang Burhenne and (posthumously) Dr. Francoise Burhenne, discussed new developments in Chinese environmental law.  These include not only increased use of citizen suits under China’s newly-amended basis environmental law, but also the 13th Five-Year Plan’s call for creation of a sophisticated, national air quality monitoring network that will provide real time data to citizens.

In the afternoon of April 28 I was one of two keynote speakers in a session on “Principles of Environmental Law for the Anthropocene in Light of the Sustainable Development Goals.”  I presented a paper on “The Judicial Role in Developing Principles of Environmental Law.” I first contrasted the judicial philosophies of Brazilian Justice Antonio Benjamin, who endorses the model juiz protaganista, with that of U.S. Supreme Court Justice John Roberts, who describes his role as an umpire calling balls and strikes (juiz espectador). I then examined how the judiciary has assisted in developing five evolving principles of global environmental law: (1) a moral obligation to future generations, (2) the sic utere and polluter pays principles, (3) the precautionary principle, (4) look before you leap and right-to-know principles, and (5) environmental justice and fairness.  Following my presentation, Costanza Martinez from IUCN Headquarters in Gland, Switzerland, gave a wonderful presentation on the development of the Sustainable Development Goals.  Emilie Chevalier from the Université de Limoges discussed the non-regression principle and the tension it poses to principles of national sovereignty.  During the question and answer session, it was pointed out that Wales has enacted a Well Being of Future Generations Act requiring public bodies to take into account the impact of their actions on people living in Wales in the future (http://gov.wales/topics/people-and-communities/people/future-generations-act/?lang=en).  It also was noted that only 33 countries have limited the use of lead in paint. The session was followed by a reception at the National Museum of Brazil.

On April 29 Dr. Parvez Hassan of Pakistan presented a detailed history of the key role played by developing countries in the evolution of international environmental law.  He noted that the initial post-World War II structure of public international law was erected without much input from the developing world.  But beginning with the 1972 Stockholm Conference on the Human Environment, developing countries began to play an active role in shaping global environmental law.  Professor Jorge Vinuales of Cambridge University then reviewed the influential role of the1992 Rio Declaration on international environmental law.

Ben Boer, deputy chair of the WCEL, presented a draft World Declaration on the Environmental Rule of Law, which he described as a “legal framework for environmental justice and global ecological integrity.  It enunciates 17 principles, including “in dubio pro natura” (giving nature priority), the non-regression principle, and a new principle of “progression” that urges regulators continually to update and strengthen environmental standards to take into account the latest scientific knowledge. 

April 26 marked the 30th anniversary of the Chernobyl nuclear disaster when an accident at a nuclear reactor in Ukraine, then part of the Soviet Union, spewed radiation across a wide swath of Europe, killed 56 people, and forced the evacuation of 336,000.  Today the area for miles around Chernobyl remains a human exclusion zone due to lingering radiation.  I visited the area in March 2009 (see blog post of March 22, 2009).  Construction of a giant steel structure to encase the reactor, which now is surrounded by a cement sarcophagus, is nearing completion, funding by the European Bank for Reconstruction and Development.  Nathan Hodge, Arch Rises to Seal Chernobyl 130 Years On, Wall St. J., April 24, 2016, at A8.

Paris Agreement Signed at UN, ELI Oral History Project, Goldman Prizes, Thank You Abdelrahman Hammad (by Bob Percival)

In a ceremony at the United Nations on Earth Day (April 22), representatives of 175 countries signed the Paris Agreement that had been reached on December 12, 2015.  The agreement contains new commitments from the parties to the UN Framework Convention on Climate Change to limit their greenhouse gas emissions. The representatives were accompanied by 197 children from various nations, including U.S. Secretary of State John Kerry’s granddaughter.  Kerry signed the agreement while holding his granddaughter.  U.N. Secretary General Ban Ki-moon stated: "These young people are our future. Our covenant is with them. Today is a day for our children and grandchildren and all generations to come."

On Earth Day the Environmental Law Institute (ELI) unveiled its long-awaited environmental law oral history project. ELI President Scott Fulton stated the the project “provide[s] first-hand interviews of men and women from a variety of career backgrounds who were instrumental in catalyzing the environmental laws of the 1970s that have served as the bedrock of environmental protection in the decades since.”  These include: John Adams, Michael Bean, Fran Beinecke, Leon Bills and Tom Jorling, Leslie Carothers, Henry Diamond, Bill Eichbaum, J. William Futrell, Kinnan Golemon, Denis Hayes, George Mitchell, Jim Moorman, Mary Nichols, William Reilly, William Rodgers, William Ruckelshaus, George Shultz, David Sive, Gus Speth, Robert Stanton, Russell Train, Henry Waxman, and Nick Yost.  The interviews can be viewed online at: http://www.eli.org/celebrating-pioneers-in-environmental-law.

Last week six environmental heroes were honored as recipients of the Goldman Environmental Prize.  They included a Baltimore high school student, Destiny Watford, Zuzana Caputova of Slovakia, Leng Ouch of Cambodia, Máxima Acuña of Costa Rica, Luis Jorge Rivera Herrerra of Puerto Rico, and Edward Loure of Tanzania.  Ms. Watford helped organize her fellow students to protest the siting of what would have been the nation’s largest incinerator less than a mile from her school.  Having blocked the project, they now hope to turn the site into a solar farm.  Information about all of the 2016 recipients is available online at: http://www.goldmanprize.org/prize-recipients/current-recipients/

Having finished spring classes last week, this week was a very active one for me.  I gave four presentations in four cities in four days.  After finishing my first guest lecture on Chinese environmental law in College Park on April 19, I had a near disaster.  While returning to the parking garage, I placed my laptop (in its Twelve South Hardback leather book case) on the trunk of my car.  Distracted by a call on my car’s phone, I forgot about the laptop and it fell off my trunk as I pulled away.  After returning to Capital Hill I found an email message from Abdelrahman Hammad, a UM-College Park student, telling me that he had retrieved the laptop after it fell off my trunk.  Fortunately its case cushioned the fall and it was working fine.  I immediately returned to College Park’s Student Union where Mr. Hammad returned the laptop to me.  He refused to accept a reward, saying that he would hope that a stranger would do the same for him if he lost his laptop.  Mr. Hammad, thank you for saving my week, which would have been hard to face without my laptop. 

On April 20 I gave a guest lecture on climate change to a seminar on “Critical Issues in Global Health,” which is taught in the UM-Baltimore Nursing School.  On April 21 I was invited to comment on Georgetown Law Professor Randy Barnett’s new book “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” at a book launch event at the Cato Institute. Video of the program is online at: http://www.cato.org/events/our-republican-constitution-securing-liberty-sovereignty-we-people  In my comments I decried the politicization of the courts, which has been taken to unprecedented levels by the right’s insistence that Judge Merrick Garland’s nomination to the Supreme Court is not even worthy of a hearing because he probably would not decide cases to reach their preferred results.

On April 22 I was a speaker on a program on “Emerging Theories of Climate Liability and Enforcement” at the University of Houston.  Also speaking on the program were former EPA general counsel Roger Martella and Professor Clara Poffenberger.  We discussed lawsuits seeking to hold large polluters or governments responsible for the harmful impacts of climate change and the effort by attorneys general to investigate potential RICO liability by ExxonMobil for alleged efforts to deliberately deceive the public about climate change. Video of the program will be posted in the near future at: http://www.law.uh.edu/eenrcenter/speaker-series.asp 

More student blog posts have been added today that can be viewed on my parallel blog at: www.globalenvironmentallaw.com by clicking on the “Students” tab at the top of the opening page.  These include Nicholas Warren’s discussion of the difficulties of enforcing foreign environmental judgments, analysis by Zhang Zhouxian of litigation by NGOs under China’s new public interest litigation law, and Jinxin Sui’s discussion of environmental law in India.

Tomorrow I leave for Rio de Janeiro to participate in the first World Congress on Environmental Rule of Law at the Supreme Court of Rio de Janeiro.  The Congress also will feature the launch of the Global Judicial Institute on the Environment, an organization designed to assist judges around the world in developing greater capacity to handle environmental cases.

Jakarta Traffic, Wild Tigers Increase, Mumbai Trash, Chinese Groundwater, Chinese "Love Canal," Golden Trees, Student Posts (by Bob Percival)

In September I was able to experience first hand the horrendous traffic congestion in Jakarta, Indonesia, one of the few cities in the world without a rapid transit system.  Last week an order by Jakarta Governor Basuki Tjahaja Purnama went into effect that suspended regulations prohibiting vehicles with less than three passengers from using major highways during rush hour.  The justification for the one-week suspension was that the rules had encouraged exploitation of children who were hired out to enable cars to meet the three-person requirement.  Predictably, traffic became even worse during the one-week suspension.  Governor Basuki has proposed an electronic congestion pricing system like those used in SIngapore and central London, but he has not been given the authority to impose it. Joe Cochrane, And Indonesians Thought the Traffic Was Bad Before, N.Y. Times, Sept. 11, 2016, at A4. 

The World Wildlife Fund and the Global Tiger Forum announced that the global population of tigers in the wild has increased for the first time since 1900.  There are now an estimated 3,890 tigers in the wild, a huge decline from the estimated 100,000 present in 1900, but an increase from the 3,200 estimated in 2010. In a Christine Hauser, Number of Tigers in the Wild Rises for the First Time in a Century, Conservationists Say, N.Y. Times, April 12, 2016, at A8.

For the first time since 1996 the acreage of crops planted with genetically modified seeds (GMOs) declined in 2015. The decline was slight, only 1%, and due largely to falling commodity prices that  encouraged less planting.  The U.S., Brazil and Argentina account for more than three-quarters of worldwide use of GMOs, which are found largely in corn, soybeans, cotton and canola. Andrew Pollack, Planting of Genetically Modified Crops Declined in 2015, N.Y. Times, April 13, 2016, at B1.

A mountain of trash the size of the national mall in Washington, D.C., has been burning in the Indian city of Mumbai.  More than half of Mumbai’s garbage is dumped untreated each day in this Deonar garbage dump.  Public outrage over the stench and pollution from the burning has spurred what some are calling a middle class environmental awakening as citizens demand that the government shut the dump down.  The city government is considering moving its garbage disposal to a site in a rural area outside of Mumbai, but it is not moving fast enough to satisfy residents near the current dump. Rama Lakshmi, In Mumbai, Fury Over a Burning Trash Mountain, Washington Post, April 16, 2016, at A6.

Last week the Chinese media reported that a survey of 2,100 wells found that 80 percent of the groundwater used by farms, homes and factories is heavily polluted.  Most of the contaminated water was classified as Class 5, the worst category of contamination. Chris Buckley & Vanessa Piao, Rural Water, Not City Smog, May Be China’s Pollution Nightmare, N.Y. Times, April 12, 2016, at A4.  CCTV reports what Professor Zhao Huiyu describes as a “Chinese Love Canal” where a middle school in Changzhou was discovered to be located on the site of closed chemical plants.  The site was found to be heavily contaminated with toxic chemicals and 493 students were found to have health problems associate with toxic exposure.  An editorial about the incident is at:

http://m.thepaper.cn/newsDetail_forward_1457962?from=groupmessage&isappinstalled=0 (in Chinese, but written well enough to understand with Google translate).

On April 6 we held our annual Golden Tree awards ceremony for films produced by students in my Environmental Law class last fall.  The award for Best Picture went to the film “Perspectives on Electronic Waste and Recycling” by Christine Wang.  This film also received awards for Best Cinematography and Best Interviews.  “Tough Time to Be a Bee” by Renee Lani and Brieanah Schwartz won Golden Trees for Most Educational and Best Use of Humor.  It also won a Special Judge’s Award for “Best Alcohol Ad” based on a scene interviewing a winemaker who uses honey to make mead wine.   “Apple in China” by Jinxin Sui and Fangzhou Xie received awards for Best Sound Quality, Best Special Effects and Best Music.

Students in my Global Environmental Law seminar have made guest blog posts about their research that I will be posting in the “Students” section of my parallel blog that can be found at http://www.globalenvironmentallawcom.  The first group of posts includes: (1) 3L Alex Stern’s articulation of a strategy for getting Maryland to join the 22 other states that have environmental amendments in their state constitution, (2) 1L Sara DiBernardo’s discussion of the implications of rapid sea level rise caused by climate change, (3) 2L James McKittrick’s discussion of the challenge of pollution from the maritime cargo industry, and (4) 1L Kerri Morrison’s explanation of the global status of nuclear waste disposal.  Several more student blogs entries will be added to this parallel blog over the next week.

Catastrophic Sea Level Rise More Likely, Hawkes Argument, FTC Sues VW, Judge Hufstedler's Passing (by Bob Percival)

Catastrophic sea level rise rapidly is becoming a more realistic possibility.  A recent study has indicated that global warming may cause the west Antarctic ice shelf to break apart and melt, raising global sea levels by 12 feet or more.  Total sea level rise could be five to six feet by 2100, more than twice the worst case scenario recently forecast by the Intergovernmental Panel on Climate Change (IGPCC).  In the next century sea levels could rise by as much as a foot per decade.  Justin Gillis, Climate Model Predicts West Antarctica Ice Sheet Could Melt Rapidly, New York Times, March 30, 2016. Another indication of rapid global warming, though not one that will contribute to sea level rise, is that for the second year in a row Arctic sea ice was at a record low wintertime maximum last month.

On March 30 I took some of the students in my Global Environmental Law Seminar to the U.S. Supreme Court to watch the oral argument in U.S. Army Corps of Engineers v. Hawkes Co.  The case involves a challenge by the federal government to a lower court ruling holding that landowners can immediately obtain judicial review of determinations that wetlands subject to §404 of the Clean Water Act are present on their property.  Based on the tenor of the argument, it seems unlikely that the federal government will win the case.  Justice Kennedy, the key swing vote, stated that “the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice.” Justice Sotomayor asked counsel for the Solicitor General, assuming that the government loses, “what’s the narrowest way to write this that the government would like?”

Last week the U.S. Federal Trade Commission (FTC) sued Volkswagen (VW) for deceiving consumers by advertising its supposedly “clean diesel” VWs and Audis.  The FTC charged that these claims were false and that VW equipped the cars with illegal emission defeat devices to deceive government emission testing. The FTC asked the court to require Volkswagen to compensate American consumers who bought affected vehicles between late 2008 and late 2015.  The FTC also sought an injunction to bar VW from such wrongdoing in the future.  

Automakers reportedly are having trouble complying with U.S. fuel economy standards as plunging oi prices encourage consumers to buy less fuel-efficient vehicles. Bill Vlasic, Automakers Likely to Ask for Leniency in Fule Rule, N.Y. Times, March 23, 2016, at B1.  However, the extraordinary consumer response to last week’s unveiling of the Tesla 3 electric car suggests that the transition to green transportation is alive and well.  Tesla received more than 275,000 pre-orders for the vehicle in three days.

Last week the U.S. Department of Justice filed its brief defending EPA’s Clean Power Plan (CPP), which regulates emissions of greenhouse gases by existing powerplants.  There are so many parties and amici in the case that six pages of the 175-page brief are a single-spaced listing of them.  Oral argument in the case, which is being heard by the U.S. Court of Appeals for the D.C. Circuit, will be held on June 2. While the CPP was stayed by the Supreme Court four days before the death of Justice Scalia, the prospect of a 4-4 split in that Court makes the D.C. Circuit’s decision potentially the final word on its legality.

On Wednesday March 30, pioneering former federal Judge Shirley M. Hufstedler passed away.  I had the enormous privilege of serving as a law clerk to her during 1978-79 when she was on the U.S. Court of Appeals for the Ninth Circuit.  In 1980, following my clerkship with Supreme Court Justice Byron White, I became a special assistant to Judge Hufstedler when she served as the first U.S. Secretary of Education.  It is widely believed that if a vacancy had arisen on the U.S. Supreme Court, President Carter would have nominated Judge Hufstedler to become the first female Justice on the Court. Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”. Carter would have nominated Judge Hufstedler to become the first female Justice on the Court.  Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”.

Maryland China Environmental Law Field Trip, Global Carbon Emissions Stable, Canada and U.S. Target Methane Emissions, Japanese Court Bars Rector Restart (by Bob Percival)

On Sunday night March 20 I returned from ten days in China where I led Maryland’s biennial environmental law field trip.  This year’s group consisted of eleven law students, two alums, myself and Professor Mike Pappas and program managing director Bill Piermattei.  We arrived in Beijing on March 11 and on March 12 we visited the Summer Palace, the Forbidden City, Houhai Lake and the offices of the Center for Legal Assistance to Pollution Victims (CLAPV).  CLAPV discussed some of the lawsuits it has brought under China’s new legislation expressly authorizing public interest environmental litigation.  These included successful litigation against a mine in a national protected area for which damages for ecosystem destruction were awarded.

On March 13 Maryland law dean Donald Tobin and Director of Admissions Katrina Schroll joined us for a trip to the Great Wall at Mutianyu.  After a long hike along the wall we all enjoyed sliding down on toboggans.  After visiting the Lama Temple in Beijing on the morning of March 14, the group visited the offices of the Environmental Defense Fund (EDF) and the Natural Resources Defense Council (NRDC).  EDF staff briefed us on their efforts to assist the Chinese government in extending seven pilot carbon cap-and-trade programs into a national system.  NRDC staff briefed us on their efforts to educate Chinese lawyers in how to bring public interest litigation under China’s newly amended environmental law.

On the evening of March 14 the group took an overnight train to Xi’an where we visited the site where thousands of terracotta warriors were buried by Emporer Qin in the third century BC.  We also explored Xian’s old city walls and visited an art gallery where we learned how to write Chinese characters.  On March 17 we flew from Xi’an to Shanghai where the group visited the World Financial Center, Taikang Lu (Tenzi Fang), Yuyuan Gardens and the Jade Buddha Temple.  On March 18 I hosted a reception at the Marriott Tomorrow Square where the group heard Zhenxi Zhong from the Shanghai office of Jane Goodell’s Roots & Shoots talk about that groups efforts to improve environmental education in China and to plant two million trees in Mongolia.  

On March 19 my students and I participated in a day-long conference on “Green China: A Summit on Public Interest Litigation and Environmental Governance” at Shanghai Jiatong University’s Koguan School of Law.  The conference was terrific because it included more top Chinese environmental law experts than I have ever seen gathered in one place.  After introductory welcomes from Shanghai Jiatong law dean Weidong Ji and Maryland Law dean Donald Tobin, I gave one of the opening keynotes on the importance of public interest litigation for the development, implementation and enforcement of environmental law.  A particularly interesting part of the conferene was a roundtable discussion featuring Ge Feng from Friends of Nature, Ma Yong from the China Biodiversity Conservation and Green Development Foundation, and Liu Xiang from CLAPV.  They expressed growing optimism concerning the state of environmental law in China.  Two important issues that remain unresolved are the relationship between NGOs and the procurate, which also has been authorized to bring public interest environmental litigation, and how natural resource damages awards should be used.

Four of my students made presentations at the conference.  Maryland 2L Renee Lani spoke about the importance of environmental law clinics.  Maryland 1L Catherine McGrath presented on the use of market share liability in MTBE cases in the U.S.  Maryland 2L Zhang Zhuoxian spoke on what Chinese courts could learn from U.S. experience and Maryland 2L Zach Wilkins spoke about efforts to control transboundary air pollution in ASEAN nations.  I hope to post an album of photos from the trip in the near future on my parallel blog at: www.globalenvironmentallaw.com

In other news: 

Global carbon emissions remained flat for the second straight year, aided by a decline in coal consumption in China.

At a White House meeting, Canadian Prime Minister Justin Trudeau and President Obama pledged to reduce methane emissions from oil and gas operations in the U.S. and Canada.

Thousands of fish died in Ulsoor Lake in Bengaluru, India due to failure to repair a barrier designed to keep sewage out of the lake.

J.P. Morgan Chase joined the growing list of major financial institutions to announce that it will no longer finance new coal mines.

The Otsu District Court in Japan issued an injunction halting the restart of reactors No. 3 & 4 at Kansai Electric Power Company’s Takahama nuclear power plant.

Honduran Activist Murdered, Court Denies Review of Chesapeake TMDL, London Court Allows Suit against Shell by Nigerians, Fukushima Criminal Prosecution, University of Chicago China Conference (by Bob Percival)

On March 3 Honduran environmental activist Berta Caceres was murdered by gunmen who broke into her home and shot her four times. Caceres had been awarded the Goldman Environmental Prize in 2015 for her work opposing construction of the Agua Zarca Dam.  Carcares had complained that she had received death threats from police, landowners groups and the army.  Her daughter Olivia declared that “[m]y mother died because she defended the land and rivers of her country.” James Nealon, U.S. Ambassador to Honduras stated that the U.S. government has “asked for a rapid and exhaustive investigation so the full weight of the law can be applied to those responsible.” 

On February 29 the U.S. Supreme Court rejected petitions from the American Farm Bureau Federation and 22 states challenging EPA’s program to clean up the Chesapeake Bay.  Pursuant to its authority under § 303(d) of the Clean Water Act, EPA specified total maximum daily loadings (TMDLs) for pollutants into the Bay and allocated them among sources. EPA’s decision was upheld by a federal district court in Pennsylvania in 2013 and by the U.S. Court of Appeals for the Third Circuit in July 2015.  Both decisions were “slam dunks” in favor of EPA, which made Supreme Court review unlikely.  What was particularly odd was that the states seeking Supreme Court review did not adjoin the Chesapeake Bay; Bay states supported EPA’s action and the decisions below. 

On March 3 Supreme Court Chief Justice John Roberts denied a request from 20 states to stay EPA’s regulations controlling emissions of mercury and other toxic air pollutants under § 112 of the Clean Air Act.  Last June the Court held that EPA had violated the Clean Air Act by failing first to consider costs before decided to regulate such emissions from power plants.  However, the regulations were not vacated by the Supreme Court and the D.C. Circuit on remand kept them in place while EPA completes the required cost analysis.  It is likely the stay motion was a product of the Court’s unprecedented stay of EPA’s Clean Power Plan on February 9, decided by a 5-4 vote before the D.C. Circuit, which had denied a stay, ruled on the merits of the case.  That action is likely to encourage more interlocutory stay requests, but after Justice Scalia’s death it is unlikely they will garner the required five votes from the now 8-member Court.

On March 2 a court in London ruled that tens of thousands of plaintiffs from two Nigerian communities could sue Royal Dutch Shell’s Nigerian unit in the UK over oil pollution that affected them. Sarah Kent, Court: Nigerians Can Sue Shell in the UK, Wall St. J., March 3, 2016, at B3.  The plaintiffs are represented by the London law firm of Leigh Day & Co., which last year won a judgment of $83.5 million against Shell.  Shell argued that the court in London had no jurisdiction over the claims and that by allowing the lawsuit to go forward there the British court was interfering with Nigerian sovereignty.  Three years ago the U.S. Supreme Court in the Kiobel case generally barred lawsuits in U.S. courts for harm caused abroad by foreign companies.  

Last week three former executives of the Tokyo Electric Power Company (TEPCO) were charged with criminal negligence in connection with the March 2011 disaster at the Fukushima Daichi nuclear power plant.  After prosecutors initially dropped plans to pursue criminal charges, an 11-member judicial panel revived the investigation last July.  The executives argue that a tsunami of the size that triggered the disaster could not have been anticipated.  Due to the disaster, only three of Japan’s 43 workable nuclear reactors have gone back on line.

On Friday March 4 the University of Chicago and Beijing’s Tsinghua University co-sponsored a conference on “Pathways to a Clean Environment: Law, Enforcement and the Public in China & the United States.”  The conference was held at the University of Chicago.  I joined Professor Zhao Huiyu of Shanghai Jiaotong University’s KoGuan Law School in presenting a paper we co-authored on “Comparing Environmental Governance in China and the United States: Federalism in an Age of Globalization.”  The conference featured some of the top scholars on Chinese environmental law including several who flew in from China for the conference. Next June I will be participating in a followup to the Chicago conference on environmental law in China at Tsinghua University in Beijing.  I moderated a conference session in which Mark Templeton, director of Chicago’s Abrams Environmental Law Clinic, presented a paper on the Flint, Michigan, lead poisoning tragedy.   On the morning of March 1st I was interviewed about the Flint lead poisoning and the potential liability of government officials on Lansing, Michigan’s MIRS Radio “The Big Show.”   

Last week the Chinese government announced that for the second consecutive year China had reduced its consumption of coal.  China’s consumption of coal fell 3.7% in 2015 after a 2.9% decline in 2014.  This announcement was hailed as a sign that Chinese emissions of greenhouse gases may peak even earlier than the 2030 target date the Chinese government has endorsed.  Edward Wong, In a Hopeful Sign on Climate Change China May Have Reached Peak Coal Use, N.Y. Times, March 3, 2016, at A5.

The coolest video of the week was the film of First Lady Michelle Obama’s visit to the school garden project my wife directs as a full-time volunteer at Watkins Elementary School on Capital Hill.  Here’s the link from the Huffington Post report on it: http://www.huffingtonpost.com/entry/michelle-obama-surprised-elementary-students-their-reactions-were-priceless_us_56d9c055e4b03a405678685e

Beijing Red Alert Threshold Raised, Sea Level Rise Fastest in 2800 Years, Senate Won't Consider Any Nominee, WOTUS Rule, Cambodia to Use Missiles Against Illegal Loggers (by Bob Percival)

On February 21 Beijing’s environmental protection board announced that it will raise the threshold for how much pollution triggers a “red alert” requiring schools to close and outdoor construction work to be suspended.  Now such an alert will be triggered when the air quality index exceeds 500 for a day, 300 for two days in a row or 200 for four days.  Previously a level of 200 would trigger a red alert.  Last much Beijing authorities announced that they plan to close 2,500 small enterprises that are highly polluting.

A study released last week showed that sea levels are rising at the fastest rate in 2,800 years due to rising global temperatures.  Robert E. Kopp, et al., Temperature-driven Global See- Level Variability in the Common Era, Proceedings of the National Academy of Sciences (http://www.pnas.org/content/early/2016/02/17/1517056113).  Another study found that coastal flooding is occurring twice as frequently as it did during the 1980s.  Climate Central, Unnatural Flooding: Sea Level and the Human Fingerprint on U.S. Floods since 1950 (http://sealevel.climatecentral.org/uploads/research/Unnatural-Coastal-Floods-2016.pdf).  

EPA reported last week that emissions of greenhouse gases (GHG) in the U.S. increased slightly in 2014.  U.S. GHG emissions rose 0.9% in 2014 after increasing 2.2% in 2013. EPA attributed the rise to increased use of fossil fuels in the energy and transportation sectors due in part to greater vehicle miles traveled.  U.S. emissions still remain 7.5% below the level in 2005, which is used as a baseline for GHG reduction pledges.

The Republican leadership of the Senate hardened their position against giving any consideration to a nomination by President Obama of a new Supreme Court Justice to replace the late Justice Antonin Scalia.  Despite considerable disinformation, this is truly an unprecedented move that looks ridiculous on its face because no nominee has been chosen yet.  Apparently the Republican leadership is afraid that a nominee would gain considerable public support if hearings were held.  While Republicans cite long ago statements by Democrats against election year confirmations, they fail to note that their position when such statements were made was that Republican nominees should be considered in election years.  This is pure partisan politics which can only increase public perception that the Court has become another political branch of government.

If the U.S. Supreme Court remains with only eight members for a prolonged period, one of the areas of environmental law that may remain hopelessly confused is the reach of federal jurisdiction under the Clean Water Act.  On February 22, a split panel of the U.S. Court of Appeals for the Sixth Circuit found that it had jurisdiction to consider challenges to EPA’s “waters of the U.S.” rule.  The rule is designed to clarify the limits of federal jurisdiction under the Clean Water Act.  Because the Clean Water Act, unlike the Clean Air Act, does not give the D.C. Circuit exclusive venue to hear challenges to EPA actions, a circuit split may well develop that the Supreme Court will be unable to resolve.

On Friday a reporter for The Guardian called me to get my reaction to the pledge by some Republican presidential candidates to eliminate the U.S. Environmental Protection Agency (EPA).  I called it a “ridiculous” idea that would weaken air and water pollution controls in the U.S. and make our country more like China.  Oliver Milman, Republican Candidates’ Call to Scrap EPA Met with Skepticism by Experts, The Guardian, Feb. 26, 2016 (http://www.theguardian.com/environment/2016/feb/26/republican-candidates-donald-trump-eliminate-epa-law-experts ). On his program Real Time on Friday night, Bill Maher said the following about Donald Trump’s pledges to eliminate the U.S. Department of Education and EPA: “When you want to make America great again, stupid and poisoned is a great place to start.”  The right seeks to portray EPA as radically out of control, but those who propose to abolish it are the true radicals.

Cambodian Prime Minister Hun Sen announced last week that he has authorized police helicopter units to fire missiles at those suspected of illegal logging.  The Prime Minister made the remarks while inaugurating the new headquarters of Cambodia’s Ministry of Environment.  The World Resources Institute estimates that Cambodia had the highest increase in forest cover loss of any country in the world during the period 2001-2014.

New Fish Tracking Measures, Venezuela Boosts Gasoline Price, China Boosts Wind Energy, Impact of Scalia's Passing on Environmental Cases, Flint Lead Poisoning (by Bob Percival)

Congress, which has found it nearly impossible to agree on anything, passed legislation last week banning imports that are produced through slave labor.  The legislation was inspired by media reports of slave labor being used on fishing boats in Southeast Asia.  The National Oceanic and Atmospheric Administration is implementing new technology to track the source of fish imported into the U.S., which should make it easier to prevent the import of fish caught in violation of environmental regulations. Ian Urbina, U.S. Closing a Loophole on Products Tied to Slaves, N.Y. Times, Feb. 16, 2016.

On February 19, President Nicolás Maduro of Venezuela increased government-controlled gasoline prices in his reeling country by 1300% to the equivalent of 38 cents per gallon. Maria Eugenia Diaz & Nicholas Casey, Price of Gas in Venezuela Skyrockets (to 38 cents a gallon), N.Y. Times, Feb. 20, 2016, at A6.  Meanwhile Britain is slashing its subsidies for onshore wind energy, despite their success.  In 2006 only 1% of Britain’s energy was produced by wind; today 11% of Britain’s electricity is produced by wind.  Stanley Reed, Clean Power Muddied by Cheap Fuel, N.Y. Times, Feb. 20, 2016.

On February 16 China’s National Energy Administration announced that the country’s installed wind power capacity increased by 60 percent in 2015 to 32.97 gigawatts.  In 2015 wind power was responsible for 3.3% of China’s production of electricity.  Increases in wind power will be an important part of China’s efforts to increase the proportion of the country’s energy generated by non-fossil fuel sources from the current 11% to 20% by 2030.

Justice Antonin Scalia was buried on February 20 after a funeral mass at the Basilica of the National Shrine of the Immaculate Conception in Washington.  With the U.S. Supreme Court now having only eight Justices, it is possible for the Court to split 4-4.  If this happens, the decision it is reviewing is affirmed by an equally divided court.  In cases where the lower courts are split on the issue being reviewed by the Supreme Court, the 4-4 decision would not resolve the circuit split.  One such case is U.S. Army Corps of Engineers v. Hawkes, which will be argued before the Court on March 30.  The government lost in the 8th Circuit decision being reviewed by the Court, but other Circuits have ruled in favor of the government’s position that wetlands designations themselves do not trigger judicial review.  Legal challenges to the EPA’s “waters of the U.S” rule also may fall into this category, depending on rulings in the lower courts.  In cases where the circuits are split, it is possible that the Court would order rergument during the next Term in hopes that a ninth Justice will be confirmed by the Senate by then.  However, with the leaders of the Republican-controlled Senate refusing to consider confirmation of a new Justice until a new president is in office, it may be a long time before such issues are resolved.   

By contrast, because the Clean Air Act makes the U.S. Court of Appeals for the D.C. Circuit the exclusive venue for hearing challenges to nationally applicable regulations, a 4-4 decision by the Supreme Court would not preserve a lower court split, but rather simply affirm whatever ruling the D.C. Circuit reaches.  The same may be true in the Murr v. Wisconsin, a regulatory takings case involving the parcel-as-a-whole issue where there is no clear split in the courts below.  It also is possible that the eight Justice will try harder to avoid 4-4 splits, producing more 6-2 or 5-3 decisions with Justices Kennedy and/or Chief Justice Roberts splitting from the two conservatives (Thomas and Alito).  Justices Thomas and Alito have become vritually automatic votes against environmental regulation and are the only two Justices still seeking to overrule Massachusetts v. EPA, which confirmed EPA’s authority to regulate emissions of greenhouse gases under the Clean Air Act.

Last week the Sierra Club sued Devon Energy Production, Inc. and New Dominion LLC, accusing them of causing earthquakes in Oklahoma from the underground injection of wastewater from oil and gas operations.  The lawsuit claims that 5,800 earthquakes occurred in Oklahoma in 2015, a massive increase in frequency from previous decades.  Last week the Oklahoma Corporation Commission ordered 250 energy companies to reduce by 40% the amount of waste water they inject underground in an effort to reduce earthquakes believed to be caused by the practice.

Last week the online magazine Jurist published a piece I wrote about the lead poisoning of drinking water in Flint, Michigan.  The piece, which is entitled “The Poison Poor Children Drink: Six Lesson from the Flint Tragedy” (http://jurist.org/forum/2016/02/robert-percival-six-lessons.php) draws lessons from the history of regulation of lead in drinking water.  It takes its title from a column George Will wrote in 1982 (“The Poison Poor Children Breathe”) about the environmental justice implications of lead poisoning from gasoline lead additives.  My colleague Jane Barrett also published a piece about the possible criminal liability of officials whose actions contributed to the Flint tragedy.  Jane’s articel, "Will anyone be prosecuted in the Flint water crisis?" explores the very weak criminal provisions in the Safe Drinking Water Act https://theconversation.com/will-anyone-be-prosecuted-in-the-flint-water-crisis-54153.