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