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