Clean Power Plan to Be Heard En Banc, Supreme Court Denies Exxon Review of MTBE Judgment, UNEP & WHO Assemblies (by Bob Percival)

Acting sua sponte, the U.S. Court of Appeals for the D.C. Circuit announced on May 16 that it will hear the legal challenges to EPA’s Clean Power Plan en banc.  The court rescheduled the date for oral argument from June 2 to September 27.  Thus, instead of being heard initially by a three-judge panel, the case will be heard by the entire court.  However, due to Judge Merrick Garland’s nomination to the U.S. Supreme Court, he will not be among the judges hearing the case.  Judge Nina Pillard also did not participate in the decision to take the case en banc, making it likely that the en banc court hearing the case will consist of only nine of the 11 judges on the court.  The delay in the oral argument means that the court’s decision is not likely to be issued until after the presidential election.  But it ultimately may slightly accelerate Supreme Court review by eliminating efforts to get any panel decision reheard en banc.  With the two recusals, five of the nine remaining judges hearing the case were appointed by Democratic presidents and are believed by most observers to be favorably disposed to EPA.

On May 16 the U.S. Supreme Court refused ExxonMobil’s request to review a New Hampshire Supreme Court decision upholding a $236 million judgment against the company for contaminating groundwater supplies with the gasoline additive methyl tertiary butyl ether (MTBE).  The state of New Hampshire had sued 16 oil companies in 2003.  Fifteen of them settled, but Exxon went to trial.  Exxon argued that its due process rights were violated by the use of market share liability to estimate its share of the contamination and that any liability should be preempted by the federal Clean Air Act directive to oxygenate gasoline.

From May 23-27, the second session of the United Nations Environment Assembly (UNEA-2) was held in Nairobi under the sponsorship of the UN Environment Programme (UNEP).  The theme of the assembly was “Delivering on the Environmental Dimension of the 2030 Agenda for Sustainable Development.”  All 193 member states of the UN are members of UNEA, which has been described as a “Parliament of the Environment.” UNEA, which sets UNEP’s agenda, was established as part of an effort to strengthen UNEP, a decision made at the UN’s “Rio+20” Earth Summit in 2012. The first session of the assembly was held in 2014.  Twenty-five resolutions were adopted at UNEA-2, addressing issues such as marine litter, the illegal trade in wildlife, air pollution, chemicals and waste, and sustainable consumption and production - which are an integral part of the global action needed to implement the 2030 Agenda for Sustainable Development and the Paris Climate Agreement.  A complete set of the resolutions will be posted online at: http://web.unep.org/unea

From May 23-28 the World Health Organization held its 69th World Health Assembly in Geneva, Switzerland.  The World Health Assembly, comprised of WHO’s members is the organization’s decision-making body.  Delegates agreed to a comprehensive series of steps to pursue the health-related Sustainable Development Goals. They also adopted the WHO Framework of Engagement with Non-State Actors (FENSA), which establishes “comprehensive policies and procedures on engaging with nongovernmental organizations, private sector entities, philanthropic foundations and academic institutions.”  The Framework is designed to enhance transparency and accountability in WHO’s engagement with non-State actors and to protect WHO’s work from conflicts of interest and undue influence from external actors.  

On May 24, the U.S. House of Representatives voted 403-12 to approve the Frank R. Lautenberg Chemical Safety for the Twenty-first Century Act. The legislation reconciles different versions of legislation passed by each house last year that would comprehensively reform the Toxic Substances Control Act (TSCA).  The legislation gives EPA greater authority to require chemical testing and otherwise strengthens the 40-year old TSCA.  A description of its provisions is available at: http://blogs.edf.org/health/files/2016/05/Major-features-of-FRL21-5-23-16.pdf.  It was widely anticipated that the Senate would also approve the legislation on May 26, sending it to President Obama for his signature, but a last-minute hold by Senator Rand Paul prevented Senate passage before Congress adjourned for the Memorial Day recess.

On Friday May 20, the University of Maryland Carey School of Law held its commencement exercises.  Secretary of Labor Tom Perez gave a great graduation address where he praised Maryland’s Environmental Law Program.  A total of 14 graduating students received their certificates of concentration in environmental law.  On May 25 I was the guest speaker for a Global Youth/Health Forum webinar on “The Role of Civil Society in Reducing Air Pollution and Ensuring a Healthier World,” co-sponsored by co-sponsored by the Millenium Campus Network and Youth Action.  

Air Pollution Worsens Outside U.S., Garland Lists ESA Case as One of His 10 Top Decisions, China Adopts NGO Law, $44 Billion Brazilian Dam Collapse Suit, Nordic Summit (by Bob Percival)

On May 12 the World Health Organization released its latest update to its global urban air quality database.  The study found that more than 80 percent of people living in urban areas that monitor air pollution are exposed to unhealthy levels of air pollution. In low- and middle-income countries a shocking 98% of people living in cities with populations of more than 100,000 breathe unhealthy air.  In high-income countries only 56% of the urban population breathes unhealthy air.  In the 795 cities in 67 countries studied by WHO, urban air pollution increased by 8% last year.  Chris Mooney and Brady Dennis, Air Pollution Getting Worse in World’s Cities, WHO Reports, Washington Post, May 13, at A9.  WHO Global Urban Ambient Air Pollution Database (update 2016) http://www.who.int/phe/health_topics/outdoorair/databases/cities/en/ WHO estimates that air polltion now causes more than 3 million deaths a year, a number expected to double by 2050 as urban pollutions and vehicle use grows rapidly.

On Tuesday May 10 D.C. Circuit Judge Merrick Garland delivered a completed questionnaire to the Senate Judiciary Committee even though the committee had not asked him to do so since it is refusing to consider his nomination.  On the questionnaire Judge Garland lists one environmental case among his list of what he considers to be his ten most significant judicial decisions.  That case is Rancho Viejo v. Norton, which upheld the power of Congress under the Constitution’s commerce clause to regulate to protect an endangered species of toad.   This is the decision that became famous during the confirmation hearings for Chief Justice John Roberts in 2005.  Roberts defended his vote to rehear the case not as indicating that he thought the Endangered Species Act was unconstitutional, but rather as spawned by a desire to develop a consistent rationale for upholding the Act’s constitutionality.  I discussed this on Thursday during a “Supreme Court Update” that I presented at a program sponsored by the ABA’s Section on Litigation at Morgan, Lewis & Bockius in Washington, D.C.  I learned that C-Span last week began airing the program I did last month at the Cato Foundation where I condemned the politicization of the Court’s by the Senate Leadership who are refusing to consider the Garland nomination.  The program is available on C-Span’s website with a transcript keyed to the video at: http://www.c-span.org/video/?408513-1/book-discussion-republican-constitution

Environmental groups in China are mulling over the potential impact of a law approved by the Standing Committee of China’s National People’s Congress on April 28, 2016.  The Law on the Administration of Activities by Foreign Non-Governmental Organizations within the People’s Republic of China imposes strict regulations on the activities of foreign non-governmental organizations (NGOs) in China.  It requires annual reporting of planned NGO activities and authorizes local police and security forces to supervise and audit NGO activities.  Student exchanges are exempted from the law and the activities of environmental NGOs are given favorable treatment.  However, my sources in China indicate that the law is quite vague, and may give greater license to authorities to crack down on anything NGOs do that they do not like.  

On May 2 Brazilian prosecutors filed a 359-page civil lawsuit seeking $44 billion in damages from mining giants Vale and BHP Billiton for the 2015 collapse of a tailings dam at their Samarco project, which killed 17 people and caused massive environmental damage.  The size of the claim shocked many investors who had assumed that a $3 billion settlement reached by the companies by the government in March would encompass most of the companies’ liability.  Many lawyers were skeptical of the prosecutors’ ability to recover anything like $44 billion, noting that an $11 billion claim brought against Chevron for a Brazilian oil spill in 2011 eventually was settled for only $42 million.  However, the Brazilian government noted that the size of the most recent disaster was equivalent to the BP oil spill that has resulted in similarly large damages.   Samantha Pearson & James Wilson, Vale and BHP Rocked by $44 Billion Dam Lawsuit, Financial Times, May 5, 2016, at 14. 

On May 2 the Supreme Court of Colorado struck down two local laws - one that banned hydraulic fracturing and another imposing a moratorium on fracking operations. The rulings declared that local regulation of fracking was preempted by state law.   The Texas Supreme Court previously struck down Houston’s air pollution control law holding that it was preempted by state law.

This week President Obama held a joint meeting at the White House with the leaders of Sweden, Norway, Denmark, Finland and Iceland.  While much of the “Nordic Summit” was focused on national security and immigration issues, the joint statement released by the leaders has a significant environmental component (https://www.whitehouse.gov/the-press-office/2016/05/13/us-nordic-leaders-summit-joint-statement).  It does not adopt environmentalists’s call for a complete ban on oil drilling in the arctic, Nordic Summit, Juliet Eilperin, Drilling in Arctic Ebbs Amid Calls for Full Ban, Washington Post, May 11, 2016, at A6, but it emphasizes the importance of all countries carrying out the Paris Agreement on climate change and it pledges continuity as the leadership of the Arctic Council passes from the U.S. to Finland and then Iceland.

World Environmental Law Congress in Rio, Thirtieth Anniversary of Chernobyl (by Bob Percival)

Last week I was in Rio de Janeiro for the first World Environmental Law Congress.  The Congress was the brainchild of Brazilian Supreme Court Justice Antonio Benjamin, who currently is the chair of the IUCN World Commission on Environmental Law (WCEL).   Because it was scheduled to coincide with the launch of the new Global Judicial Institute for the Environment, the Congress attracted the participation of judges from all over the world as well as a “who’s who” of environmental law scholars.  Altogether there were several hundred participants from scores of countries, including 23 countries in Africa.  Prior to the opening of the Congress on April 27, a colloquium was held for early career environmental law experts who participated in a “lightning round” of brainstorming concerning ways to improve the effectiveness of environmental law.

The Congress opened in the Supreme Court of Rio de Janeiro with a performance by the National Symphony of Brazil.  Chief Justice Ricardo Lorenzetti of the Supreme Court of Argentina gave the keynote opening address.  He emphasized the transformative nature of the environmental paradigm in the context of law and argued that, as with human rights law, the environmental rule of law should protect the weaker party, which is nature.  The 50th Anniversary of the IUCN’s red list of threatened species was then marked with the launch of a Brazilian postage stamp honoring the golden lion tamarin.  Professor Adelmar Faria Coimbra Filho, a biologist who played a leading role in saving the golden lion tamarin was honored.  In his remarks, Professor Coimbra, who was the first director of Rio’s Center for Primatology, argued that it actually should be called the red lion tamarin because it only looks golden when malnourished.  The tamarin, which is only found in the state of Rio de Janeiro, is the only primate in the last 30 years whose status has been upgraded due to conservation efforts.

On Thursday April 28, the morning session of the Congress featured an address by Justice Shen Deyong, the acting Chief Justice of China’s Supreme People’s Court.  Pace University Professor Nick Robinson, who joined Dr. Parvez Hassan in presenting a WCEL Lifetime Achievement Award to Wolfgang Burhenne and (posthumously) Dr. Francoise Burhenne, discussed new developments in Chinese environmental law.  These include not only increased use of citizen suits under China’s newly-amended basis environmental law, but also the 13th Five-Year Plan’s call for creation of a sophisticated, national air quality monitoring network that will provide real time data to citizens.

In the afternoon of April 28 I was one of two keynote speakers in a session on “Principles of Environmental Law for the Anthropocene in Light of the Sustainable Development Goals.”  I presented a paper on “The Judicial Role in Developing Principles of Environmental Law.” I first contrasted the judicial philosophies of Brazilian Justice Antonio Benjamin, who endorses the model juiz protaganista, with that of U.S. Supreme Court Justice John Roberts, who describes his role as an umpire calling balls and strikes (juiz espectador). I then examined how the judiciary has assisted in developing five evolving principles of global environmental law: (1) a moral obligation to future generations, (2) the sic utere and polluter pays principles, (3) the precautionary principle, (4) look before you leap and right-to-know principles, and (5) environmental justice and fairness.  Following my presentation, Costanza Martinez from IUCN Headquarters in Gland, Switzerland, gave a wonderful presentation on the development of the Sustainable Development Goals.  Emilie Chevalier from the Université de Limoges discussed the non-regression principle and the tension it poses to principles of national sovereignty.  During the question and answer session, it was pointed out that Wales has enacted a Well Being of Future Generations Act requiring public bodies to take into account the impact of their actions on people living in Wales in the future (http://gov.wales/topics/people-and-communities/people/future-generations-act/?lang=en).  It also was noted that only 33 countries have limited the use of lead in paint. The session was followed by a reception at the National Museum of Brazil.

On April 29 Dr. Parvez Hassan of Pakistan presented a detailed history of the key role played by developing countries in the evolution of international environmental law.  He noted that the initial post-World War II structure of public international law was erected without much input from the developing world.  But beginning with the 1972 Stockholm Conference on the Human Environment, developing countries began to play an active role in shaping global environmental law.  Professor Jorge Vinuales of Cambridge University then reviewed the influential role of the1992 Rio Declaration on international environmental law.

Ben Boer, deputy chair of the WCEL, presented a draft World Declaration on the Environmental Rule of Law, which he described as a “legal framework for environmental justice and global ecological integrity.  It enunciates 17 principles, including “in dubio pro natura” (giving nature priority), the non-regression principle, and a new principle of “progression” that urges regulators continually to update and strengthen environmental standards to take into account the latest scientific knowledge. 

April 26 marked the 30th anniversary of the Chernobyl nuclear disaster when an accident at a nuclear reactor in Ukraine, then part of the Soviet Union, spewed radiation across a wide swath of Europe, killed 56 people, and forced the evacuation of 336,000.  Today the area for miles around Chernobyl remains a human exclusion zone due to lingering radiation.  I visited the area in March 2009 (see blog post of March 22, 2009).  Construction of a giant steel structure to encase the reactor, which now is surrounded by a cement sarcophagus, is nearing completion, funding by the European Bank for Reconstruction and Development.  Nathan Hodge, Arch Rises to Seal Chernobyl 130 Years On, Wall St. J., April 24, 2016, at A8.