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.  

Death of Justice Scalia, Clean Power Plan Stayed, ICAO Aircraft GHG Proposal, Cato Property Rights Forum, OAS (by Bob Percival)

On the afternoon of February 13 the shocking news spread that Supreme Court Justice Antonin Scalia had been found dead while on a hunting vacation in west Texas.  When I heard that the Justice had died south of Marfa, Texas near Big Bend National Park, my first reaction was that he died in one of the most beautiful parts of the world.  When I was a child my father took my family on a vacation camping in Big Bend and it is one of the most beautiful places I have ever been.  Justice Scalia was a truly amazing human being who was remembered by former President George W. Bush as someone who “brought intellect, good judgment and wit to the bench.”  When my former student Derrick Wang wrote the opera “Scalia/Ginsburg” (see July 15, 2015 blog post), Justice Scalia warmly received it

The last order of the Supreme Court in which Justice Scalia cast the decisive vote was issued on the afternoon of Tuesday February 9.  In an unprecedented action the Supreme Court shocked legal observers by voting 5-4 to block EPA’s Clean Power Plan (CPP) from taking effect.  Justices Ginsburg, Breyer, Sotomayor and Kagan dissented.  The Court’s decision was particularly surprising because the D.C. Circuit, which had expedited its hearing of legal challenges to the CPP, had unanimously denied a stay less than three weeks before.   In a piece I was invited to write for the global blog “The Conversation,” I suggested that the Court’s decision may be “Bush v. Gore for the environment.” See www.theconversation.com/in-blocking-epa-clean-power-plan-is-the-supreme-court-wading-deeper-into-politics-54513 The piece was reposted by the Real Clear Energy website: http://www.realclearenergy.org/2016/02/12/is_supreme_court039s_epa_stay_like_bush_v_gore_274504.html

Meeting in Montreal last week the environmental committee of the International Civil Aviation Organization (ICAO) recommended rules to require new aircraft to emit fewer greenhouse gases (GHGs).  The recommendations were criticized by environmental organizations because they would not require existing aircraft to offset their emissions in any way.  New aircraft would be required to reduce their emissions by 4 percent by in 2028 compared with emissions from aircraft delivered in 2015. The ICAO agreed to consider developing such regulations only after the European Union’s program to require airlines flying to and from the EU to pay emissions charges for their GHGs was upheld by the European Court of Justice.  The EU agreed temporarily to suspend enforcement of its aircraft emissions rules pending the development of a global program by the ICAO.

On Tuesday February 9 I spoke at the Cato Institute’s launch of a new book on property rights (Timothy & Cristina Sandefur, Cornerstone of Liberty: Property Rights in the 21^st Century).  I argued that environmental law actually protects property rights rather than infringing on them.  I disputed the book’s assertion that there is a “national property rights crisis” in the United States in the wake of the Supreme Court’s 2005 decision in Kelo v. City of New London.  l also defended EPA’s “waters of the U.S.” rule for determining what properties are wetlands subject to federal regulation under the Clean Water Act, by noting that the rule clarifies an area of law that is hopelessly confused in the wake of the Supreme Court’s 2006 decision in Rapanos v. United States.  I also condemned the authors’ call for overruling the Supreme Court’s famous snail darter decision (TVA v. Hill) where the Court upheld the new Endangered Species Act.  A video of the forum is available online at: http://www.cato.org/events/cornerstone-liberty-property-rights-21st-century-america-0

New research presented at the annual meeting of the American Association for the Advancement of Science (AAAS) calculates that 5.5 million people die annually from exposure to global air pollution. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  The country with the largest number of these deaths is China with India being the country with the second most deaths. The study estimates that 79,000 people in the U.S. die each year from respiratory diseases caused by air pollution and 218,000 people die each year in the EU from air pollution.  Darryl Fears, More than 5 Million People a Year Die from Polluted Air, Washington Post, February 13, 2016, at A3.

On February 11 Southern California Gas Company announce that the massive leak of natural gas north of Los Angeles that has been occurring for more than three months finally was capped, at least temporarily. It is estimated that the leak released two million tons of methane, a potent GHG, into the atmosphere.

This week the Organization of American States honored some officials who had contributed to the development of environmental jurisprudence in Central and South America.  Prior to the OAS awards ceremony on Thursday February 11, I spoke at a meeting at the Environmental Law Institute that focused on the development of a Global Judicial Institute for the Environment.  Among the judges who spoke at the meeting were Brazilian Supreme Constitutional Court Justice Antonio Benjamin, Argentina’s Chief Justice Ricardo Lorenzetti, and judges on EPA’s Environmental Appeals Board.  Some participants seemed in shock that the U.S. Supreme Court had stayed EPA’s Clean Power Plan.

Japan Proposes to Require Reprocessing of Nuclear Fuel, U.S. Opposes CPP Stay, Lumber Liquidators Lacey Act Fine, Methane Leak Charges (by Bob Percival)

The Japanese Ministry of Economy, Trade and Industry (METI) has proposed new legislation to revise regulation of spent nuclear fuel.  The bill will require nuclear power companies to reprocess all spent fuel and it bans all other methods of nuclear waste disposal.  The bill will establish special corporations who will charge the utilities for spent fuel reprocessing, which is very expensive and has been resisted by the utilities. Almost $18 billion has been invested in the construction of a reprocessing plant in Rokkasho, Japan, but it has been plagued by technical problems since beginning “test operation” in 2004.  This information comes from Professor Hiroshi Yoshida from the Tokyo University of Agriculture and Technology. 

On Thursday February 4 the Solicitor General filed a brief with the U.S. Supreme Court opposing a stay of EPA’s Clean Power Plan (CPP) pending the D.C. Circuit’s consideration of legal challenges to it.  The D.C. Circuit denied a stay on January 21, but several states, utilities and coal industry groups are taking the unusual step of asking the Supreme Court to intervene and issue a stay.  The Solicitor General argued that there is no precedent for the Court to grant the stay request and that deadlines established by the CPP will not take effect until long after the litigation is finished.  The government noted that the D.C. Circuit is giving the case expedited treatment and is likely to resolve the legal challenges by late summer or early fall.  While initial state compliance plans are due in September, states easily can obtain a two-year delay of this requirement and do not have to begin compliance until 2022 with full compliance not required until 2030. The government dismissed claims that the CPP unconstitutionally “comandeers” state power in violation of the Tenth Amendment, noting that any state simply can refuse to file a compliance plan and EPA will then adopt its own federal plan for the state.

Of February 1 a federal district court in Norfolk, Virginia imposed a $13 million fine on Lumber Liquidators for illegal importation of hardwood flooring in violation of the Lacey Act.  The fine is the largest ever under the Lacey Act, which prohibits the importation of lumber illegally harvested in another country.  The hardwood imported by Lumber Liquidators was illegally logged in eastern Russia in the protected habitat of the Siberian tiger.  It was then mislabeled and shipped through China to the United States.  The company pled guilty to the charges last October.  It will be placed on five years of organizational probation and must implement a government-approved environmental compliance plan that will include independent audits.

On Tuesday February 2 both the State of California and Los Angeles County filed charges against Southern California Gas Co., a division of Sempra Energy, for the massive methane leak that has been occurring since October at the company’s Aliso Canyon natural gas storage facility. The county’s charges include four misdemeanor counts of failing to report releases of hazardous materials while the state’s charges accuse the company of violating state health and safety laws by failing to control the release.  More than 20 private lawsuits also have been filed against the company.

On Tuesday February 9 I will be speaking at a luncheon program at the Cato Institute’s Hayek Auditorium to discuss a new edition of the book Cornerstone of Liberty: Property Rights in 21st Century America by Timothy and Christina Sandefur of the Pacific Legal Foundation and the Goldwater Institute.