“Happy New Year,” or “Feliz Año Nuevo” as they say here in Puerto Rico. As this is my first blog post of 2016, I will resume the tradition of naming the top developments in global environmental law during the past year. (Last year I was in Antarctica on New Years and was understandably too distracted to put such a list together). To make up for last year’s omission, this year I will be bold and try to list the ten stories in what I consider to be their reverse order of importance.
When dealing with environmental issues it is hard to choose ten discrete events because “everything is connected to everything else,” so inevitably I have mixed some together.
10. Republican Leaders Demonize EPA but Pass Chemical Reform Measures: As the 2016 presidential campaign began, Republican candidates sought to demonize the U.S. Environmental Protection Agency to appeal to a radical conservative base, but Republicans in Congress were largely unsuccessful in enacting anti-EPA measures due to Senate rules and President Obama’s willingness to veto such legislation. Surprisingly, comprehensive reform of the Toxic Substances Control Act passed both houses of Congress, though in somewhat different forms that will need to be reconciled in 2016. Congressional action was spurred in part by the realization that U.S. chemical control law had fallen far behind that of the EU and even China, although the explosions from illegally stored chemicals that killed 173 people in Tianjin, China, in August confirmed that Chinese law is poorly enforced. The U.S. Congress also adopted the Microbead Free Waters Act of 2015 that amended the Federal Food, Drug & Cosmetic Act to ban the use of cosmetics that contain synthetic plastic microbeads because of their environmental impact.
9. Australia and Canada Replace Anti-Environmental Leaders: Fiercely anti-environmental leaders left office in Australia and Canada. Australian Prime Minister Tony Abbott was replaced in office by his own Liberal Party by Malcolm Turnbull whose environmental policies are more moderate. Canada’s Steven Harper lost a parliamentary election and was replaced as Prime Minister by Justin Trudeau whose policies are viewed as far more environmentally friendly. While Trudeau favored the Keystone XL pipeline, he was gracious and understanding when President Obama announced in November that he would not approve it. A new, more environmentally-friendly provincial government in Alberta, where the pipeline would have originated, announced that it would adopt a province-wide carbon tax.
8. Conflicts between Multinational Extractive Industries and Indigenous Populations: In the long-running dispute between Chevron and indigenous populations in Ecuador, the Supreme Court of Canada rejected Chevron’s claim that its Canadian assets cannot be used to satisfy a $9.5 billion judgment issued against it by a court in Ecuador for oil pollution there. In April the U.S. Court of Appeals for the Second Circuit heard oral argument in the appeal of a RICO judgment issued against the plaintiffs’ lawyers by New York federal district judge Lewis Kaplan, but it has yet to release its decision. Penguin Random House published an excellent book, Law of the Jungle, written by journalist Paul M. Barrett, which covers the history of this litigation to redress massive oil contamination in Ecuador. The litigation started in New York federal court in 1993, but initially was dismissed there in favor of the courts of Ecuador at the oil company’s behest. As the book makes clear, Chevron would have been far better off if it had done what Occidental Petroleum did last March when it reached a settlement with the Achuar for oil contamination associated with its drilling operations in Peru.
7. Tailings Dam Collapse Causes Massive Sludge Spill in Brazil: On November 5 a dam collapse at an impoundment used to store mining tailings by Vale and BHP Billiton Ltd. in Brazil killed 19 people, destroyed several villages and polluted hundreds of miles of rivers and the Atlantic Ocean. Rocked by public protests over corruption, the Brazilian government responded by seeking the equivalent of $5 billion in fines and damages.
6. Effects of Global Warming and Climate Change Become More Readily Apparent: It is widely believed that 2015 will have been the hottest year on record as the effects of global warming and climate change become more apparent. The Obama administration’s EPA adopted its Clean Power Plan to control emissions of greenhouse gases (GHGs) from existing powerplants. Courts in the Netherlands and Pakistan ruled that their governments were not doing enough to control emissions of GHGs. Major EU oil companies announced their support for a carbon tax.
5. Shell Cancels Arctic Drilling Amid Oil Glut as Oil Prices and Costs of Renewables Plummet: A global glut of oil sent prices of crude plunging well below $40/barrel, sharply reducing the profits of major oil companies. After receiving a permit and conducting exploratory drilling in U.S. waters off the north shore of Alaska, Royal Dutch Shell announced that it was suspending oil exploration in the Arctic. Lord Browne, former chairman of BP, had criticized Arctic drilling as too risky for the industry. Despite the plunge in the price of oil, solar and wind energy continued to expand, aided by significant reductions in the costs of installing these renewables, particularly solar.
4. As New Chinese Environmental Law Spurs Citizen Suits, “Airpocalypses” Return to Major Cities: Amendments to China’s Basic Environmental Law, which became effective in January, spurred a new wave of citizen suits that Chinese courts were required to accept. While most of these lawsuits dealt with water pollution, horrendous air pollution (“airpocalypses”) returned to Beijing and other cities near the end of the year. Record air pollution also gripped Delhi, Tehran and Milan, spurring controls on vehicle use, and Southeast Asia was plagued in the fall by enormous pollution from fires caused by illegal land clearing in Indonesia.
3. Volkswagen Emissions Cheating Scandal Stuns Corporate World: The global corporate world was stunned in September by the revelation that for many years Volkswagen installed software on 11 million diesel vehicles worldwide to deceive emissions tests. The software enabled these vehicles to pass emissions tests even though the vehicles emitted levels of pollution many times greater than allowed. The revelation led to the resignation of the company’s CEO and universal condemnation of the company. Because this clearly involved deliberate violations of the environmental laws at the behest of high corporate officials, it severely undermined public trust in both corporate responsibility and the enforcement of the environmental laws. Volkswagen now potentially faces some of the greatest penalties in history for violation of environmental law.
2. Pape Francis Issues “Laudato Si” Encyclical: On June 18 the Vatican released Pope Francis’s long-anticipated encyclical on the environment, Laudato Si (Praise Be to You) On Care for Our Common Home. The gist of Laudato Si is that mankind has a strong moral obligation to protect the environment that has not been honored despite repeated global environmental summits. As a result we face an “ecological crisis” that particularly harms the poorest and most vulnerable. We must pursue intergenerational equity and hear “both the cry of the earth and the cry of the poor”. Pope Francis repeated some of these themes in an address to a joint session of the U.S. Congress in September. The Vatican used the encyclical to press world leaders to adopt a new global agreement to respond to global warming, which they did in Paris in December.
1. World Adopts Paris Agreement to Respond to Climate Change: On December 12th 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). This 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 used to measure progress. One of the most important factors laying the groundwork for the success of the Paris negotiations was the climate agreement announced in November 2014 between China and the U.S., the countries who are the two largest emitters of GHGs.