On January 4th the U.S. Department of Justice filed a civil suit against Volkswagen for its extensive use of software that defeated emissions tests on its diesel vehicles. The complaint alleges that 499,000 cars sold in the U.S. between 2009 and 2015 emitted much higher levels of pollution than test data showed. The Justice Department is seeking both an injunction to stop the cheating and civil penalties that will range into the billions of dollars. More than 450 private lawsuits have been filed against Volkswagen. These have been consolidated in the U.S. District Court for the Northern District of California. Several state attorneys general have complained that Volkswagen is refusing to comply with their discovery requests, citing German privacy law.
EU regulators are now realizing that their ability to uncover cheating on emissions tests is not as advanced as in the U.S. They are seeking greater authority to monitor actual emissions. Jim Brunsden, Brussels Seeks More Powers to Monitor Carmakers Emissions, Financial Times, January 6, 2016, at 2. Tesla founder Elon Musk wrote a letter to the California Air Resources Board suggesting that Volkswagen should not be required to retrofit existing cars with better pollution control devices, but rather should be required to accelerate its development of electric cars. Musk argues that this is the best way to mitigate the damage to the environment caused by the Volkswagen vehicles.
On January 6 TransCanada filed a lawsuit in federal court challenging President Obama’s rejection of the Keystone XL pipeline. The company also announced that it will file a petition challenging the pipeline rejection as a breach of U.S. obligations under the North American Free Trade Agreement (NAFTA). Opponents of the new Trans Pacific Partnership trade liberalization agreement quickly seized upon the latter to argue that it illustrated how trade agreements can jeopardize implementation of environmental measures.
Bloomberg New Energy Finance estimates that 2015 was a record year for investment in renewable energy projects even as the price of fossil fuels plunged. A total of $329 billion was invested in wind, solar, and biomass energy projects (large hydropower projects were not counted in Bloomberg’s analysis). More than one third of these investments were made in China, where $110.5 billion in renewable investments were made. A total of $56 billion was invested in projects in the U.S. Chris Mooney, Clean Energy Is Expanding Even with Cheap Fossil Fuels, Washington Post, Jan. 15, 2015, at A14.
The Saudi government is joining what several other countries have done by taking advantage of plunging oil prices to cut energy subsidies it provides to its citizens. Adam Taylor, Saudi Arabia Tightens Its Belt as Cheaper Oil Pulls Down Revenue, Washington Post, January 3, A16.
Last week President Obama announced that the federal government would temporarily suspend leasing of coal deposits on federal lands. The moratorium is designed to give the government time to determine whether criticisms that it is selling federal coal deposits for below market rates. Obama’s action is yet another indication of the administration’s efforts to promote a shift in the U.S. energy infrastructure away from fossil fuels, a theme the President reiterated in his State of the Union Message last Tuesday.
After my last blog post on the top ten developments in environmental law in 2015, I have concluded that there are two other events I should have mentioned: the UN’s adoption of new sustainable development goals in September and the move to phase out HFCs by the parties to the Montreal Protocol.
From January 6-10 I attended the annual conference of the American Association of Law Schools (AALS). On January 7th I participated in a field trip to the United Nations sponsored by the International Law Section of the AALS. Chile’s UN Ambassador gave a luncheon address that reviewed some of the work he performed in monitoring the application of sanctions to African countries while Chile was a member of the UN Security Council last year.
On Friday January 15, the U.S. Supreme Court announced that it would review an obscure takings decision. In Murr v. Wisconsin, No. 15-214, the Court may address the long-suffering “parcel as whole” issue in regulatory takings doctrine in the context of a property that was subdivided. The question presented in the case is whether in a regulatory taking case, the "parcel as a whole" concept described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), establishes a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for purposes of takings analysis.
The lead poisoning crisis in Flint, Michigan, intensified last week as Michigan Governor Rick Synder called out the National Guard to help distribute bottled water to citizens whose drinking water is polluted with lead. President Obama also issued an emergency declaration. The crisis arose when the city of Flint decided to use the Flint River for its drinking water instead of receiving its drinking water from Detroit. The new water source corroded lead pipes and resulted in significant quantities of lead in the city’s drinking water. Allegations that government officials knew about the lead poisoning but failed to take action are now being investigated.
Some updates on my previous work follow. A video of the joint presentation I made with John Cruden, the Assistant Attorney General for the Justice Department's Environment and Natural Resources Division, on "Leading Cases and Other Highlights of the Past Year" is now available on Vimeo at https://vimeo.com/148115157. Our presentation was to the annual meeting of the American College of Environmental Lawyers in New York. We reviewed the top developments in environmental law in 2015 and make some predictions concerning what will be the top cases in 2016.
I am the featured guest on the "Justice on Trial" podcast, discussing the Paris Climate Agreement. See “Paris Climate Change Agreement,” Justice on Trial Podcast: Episode 14, Jan. 4, 2016 (http://jotpodcast.com/justice-on-trial-podcast-14-climate-change).
My New Republic/The Conversation piece on the legal durability of U.S. pledges at the Paris climate conference has now been translated into Chinese. The Mandarin version now appears on several Chinese websites, including:
China Economic Net, Dec. 28, 2015, available online at: : http://intl.ce.cn/specials/zxgjzh/201512/28/t20151228_7909236.shtml
China Daily, Dec. 28, 2015, available online at: a http://cnews.chinadaily.com.cn/2015-12/28/content_22843166.htm
163 News, Dec. 28, 2015, available online at: http://news.163.com/15/1228/17/BBUIN59N00014JB5.html
China Ministry of Industry and Information Technology (MIIT), Center for International Economic and Information Technology (MIIT), Center for International Economic and Technological Cooperations (CIETC), Dec. 30, 2015, available online at: http://mp.weixin.qq.com/s?__biz=MzAwNDcxNDE1Mw==&mid=402615351&idx=1&sn=1a6e44aa17825fccd5730f303b6b9382&3rd=MzA3MDU4NTYzMw==&scene=6#rd
China University of Political Science and Law, Environmental Law Research Institute, Jan. 7, 2016, available online at: http://mp.weixin.qq.com/s?__biz=MzA4OTk2ODk5Mw==&mid=401481377&idx=2&sn=fb872ba1db682ecc7d33fb9d64ad8a3a&3rd=MzA3MDU4NTYzMw==&scene=6#rd Technological Cooperations (CIETC), Dec. 30, 2015, available online at: http://mp.weixin.qq.com/s?__biz=MzAwNDcxNDE1Mw==&mid=402615351&idx=1&sn=1a6e44aa17825fccd5730f303b6b9382&3rd=MzA3MDU4NTYzMw==&scene=6#rd
China University of Political Science and Law, Environmental Law Research Institute, Jan. 7, 2016, available online at: http://mp.weixin.qq.com/s?__biz=MzA4OTk2ODk5Mw==&mid=401481377&idx=2&sn=fb872ba1db682ecc7d33fb9d64ad8a3a&3rd=MzA3MDU4NTYzMw==&scene=6#rd