AALS Conference, China Plans $360 Billion Investment in Renewables, Environmental Crime in China (by Bob Percival)

From January 3-7, I attended the 111th annual meeting of the American Association of Law Schools in San Francisco.  Several panels at the conference focused on how the Trump administration is likely to seek legal and policy changes in various areas, but few speakers could be confident in their predictions.  One of the most interesting panels was a “hot topics” program on the Juliana v. United States litigation in the U.S. District Court for the District of Oregon.  Brought on behalf of 21 youths from across the U.S., the lawsuit argues that the federal government has violated younger generations’ constitutional rights to life, liberty and property and failed to protect essential public trust resources.  Having survived a motion to dismiss, the plaintiff are hoping to go to trial in fall 2017 to litigate whether the federal government has done enough to combat climate change.  Legal documents filed in the litigation are available online at: https://www.ourchildrenstrust.org/lawlibrary/

On Thursday January 5, I joined many professors from the Environmental, Natural Resoures, Energy and Animal Law sections on a field trip to the Greater Farallons National Marine Sanctuary off the coast of San Francisco.  While few whales were sighted during the trip (this is not the time of their migration), it was a beautiful, sunny day for a boat trip.

Last week China’s National Energy Administration announced that the country plans to invest 2.5 trillion yuan ($360 billion) in renewable energy sources between now and 2020.  This investment is expected to reduce emissions of CO2 by 1.4 billion tons, SO2 by 10 million tons, and NOX by 4.3 million tons. By 2020 installed renewable energy capacity is expected to account for 50% of new electricity generation.  While this investment will help reduce coal consumption, coal will still constitute 58% of the nation’s energy mix by 2020. Zheng Xin, Renewables Investments Surge to Help Clear the Air, China Daily, Jan. 6-8, 2016, at 18.

China’s Supreme People’s Court has issued a new interpretation of how criminal prosecutions for environmental violations should be handled.  The interpretation covers how courts should handle falsification of data, illegal dumping of hazardous waste, and how certain environmental crimes are defined.  “It also provides direction on which crimes deserve severe punishment, such as interfering with investigations related to environmental emergencies, for example, and which would merit lighter punishment, such as if an individual took quick action to remediate or resolve a spill incident.” Michael Standaert, China’s Top Court Cracks Down on Environmental Crime, BNA International Environment Reporter, Jan. 4, 2017.  

Despite increased emphasis on criminal prosecutions for environmental violations, China Youth Daily was critical of the outcome of a prosecution before the Yangzhou Intermediate People’s Court.  Citing the prosecution of Dystar Group for discharging 698 tons of waste acid into a canal without pretreatment, the journal stated: “The damage done by its illegal deeds are beyond measurement, but the punishments for crimes related to environmental pollution are rather light in this country.  The court only fined Dystar 20 million yuan, which is hardly enough to prevent it from committing similar misdeeds again, and certainly far from enough to mend the environmental damage it had already done.” The journal noted that the company had saved substantial amounts of money by failing to treat the waste and that there was no indication that any managers had been held criminally responsible, despite efforts to cover up the violation and destroy evidence.  Quoted in “Heavier Penalties Will remind Firms to Meet Eco-Standards,” China Daily, Jan. 6-8, 2017, at 16.

Last week the Center for Biological Diversity (CBD) filed a notice of intent to sue the U.S. Department of Commerce for failure to take action to require Mexico to protect the totoaba, a small porpoise that is critically endangered. CBD is asking that Mexico be certified as a nation that has diminished the effectiveness of the Convention on International Trade in Endangered Species (CITES) pursuant to the Pelly Amendment to the FIshermen’s Protective Act.

Amazon Watch announced last week that Rosa Moreno, a community nurse in San Carlos, Ecuador who assisted victims of oil pollution, has died of cancer.  In a statement dated January 4, Amazon Watch said: “She loved and served her community as they suffered from the many diseases caused by oil contamination, corporate and government neglect. She fought for justice in the case against Chevron. We vow to continue to seek justice for Rosa and all who have suffered from this abuse.”

Top Ten Global Environmental Law Developments in 2016 (by Bob Percival)

Now that the world has welcomed in 2017 and said good riddance to 2016, it is time for the annual review of the most significant developments in global environmental law during the past year.  Here they are, in no particular order.

1. On November 8, voters in the U.S. elected as president Donald Trump, a candidate who once pledged to abolish the Environmental Protection Agency (EPA) and to “cancel” the Paris climate agreement.  Although his opponent Hilary Clinton received more than 2.8 million more votes than Trump and won the popular vote by a margin of 48% to 46%, Trump carried enough battleground states to win the presidency in the electoral college.  Trump’s nomination of a long-time fierce critic of EPA, Oklahoma attorney general Scott Pruitt, to be EPA Administrator signals that there will be fierce efforts to roll back U.S. environmental regulations.  I have published a piece on the Pruitt nomination in The Conversation, available online at: https://theconversation.com/can-legal-activist-scott-pruitt-undo-clean-air-and-water-protections-as-head-of-epa-70127

2. The Paris Agreement on climate change entered into force on November 4, 2016, 30 days after  it was ratified by at least 55 parties that account for 55% or more of global greenhouse gas emissions.  A total of 120 of the 197 parties to the agreement have now ratified it.  An updated list of the parties and their ratification status is available online at: http://unfccc.int/paris_agreement/items/9444.php  The first Meeting of the Parties to the Paris Convention was held in Marrakech, Morocco in November 2016. 

3.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, agreed to a global phase out of hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances. It is estimated that these measures alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy. The Montreal Protocol already has been responsible for greater reductions in greenhouse gas emissions than even the Kyoto Protocol.  The new measures will help reduce the impact on climate change of the rapid growth of air conditioning use in developing countries.  Global cooperation on climate change also resulted in the 191 countries in the International Civil Aviation Organization adopting a carbon offsetting scheme for international aviation.

4. Despite new measures to upgrade its environmental laws, China continued to suffer horrendous bouts of air pollution that required the issuance of red alerts, shutting down schools and factories.  India also experienced horrendous episodes of air pollution. Epidemiologists calculated that global deaths from exposure to air pollution now total 5.5 million people per year. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  

5. Countries continued to expand the use of specialized environmental courts.  In an update to their 2009 study of environmental courts and tribunals (ECTs), Rock and Kitty Pring found that there are now more than 1,200 green tribunals in 44 countries and 20 additional countries are considering adopting ECTs.  The new study by the Prings for the UN Environment Programme is available online at: http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y. There are now more than 500 environmental judges in China and I had the privilege last June of addressing more than 200 of them during a judicial training program in Beijing.

6. Globalization no longer appeared to be an inexorable force.  The volume of global trade was unchanged in the first quarter of 2016 and then declined by 0.8 in the second quarter as trade liberalization efforts came under fire.  Both U.S. presidential candidates rejected the Trans Pacific Partnership and British voters surprised the world by voting to leave the European Union.  A long-time expert in adjudication of trade disputes expressed the view that the heyday of investor-state dispute resolution provisions may have passed.

7. Global pressure to upgrade environmental standards continued, as illustrated by the U.S. Congress overwhelmingly voting to adopt the Frank Lautenberg Chemical Safety for the 21st Century Act in June 2016.  Signed into law by President Obama, the new legislation is the first comprehensive updating of the Toxic Substances Control Act that was adopted in 1976.  Despite legislative gridlock in the U.S. Congress on most environmental issues, the EU’s REACH program and advances in chemical control legislation in other countries made it abundantly clear that the U.S. law needed to be reformed.  

8. The effects of climate change became more apparent as heat records were broken and sea level rise continued.  Global temperatures in 2015 were the highest on record, but the first eleven months of 2016 were even hotter.  See: https://www.ncdc.noaa.gov/sotc/  Sea level rise exacerbated tidal flooding, leading to the discovery in November of an octopus floating in a parking garage in Miami.  Accelerated melting of the Antarctic and Greenland ice caps increased scientific concern over climate change.

9. Efforts to hold multinational corporations accountable for environmental harm caused in developing countries continued with mixed success.  The never-ending litigation against Chevron for oil pollution in Ecuador continued.  Chevron won a big victory when the U.S. Court of Appeals for the Second Circuit upheld a RICO judgment against Ecuadoran plaintiffs and their lawyers, but Canadian courts allowed the plaintiffs to continue efforts to collect against Chevron subsidiaries in that country.  Litigation against Royal Dutch Shell for oil pollution in Nigeria continued in British and Dutch courts.  Efforts to hold multinational corporations accountable for harm caused in developed countries were more successful as Volkswagen reached multi-billion dollar settlements and faced criminal charges for its extensive use of emissions testing defeat devices.

10.  Efforts to improve the capacity of courts to hear environmental cases increased.  A new Global Judicial Institute for the Environment was launched in April at the first World Congress on Environmental Law in Rio, spearheaded by Brazilian Supreme Court Justice Antonio Benjamin, chair of the World Commission on Environmental Law.  The U.S. Supreme Court became more politicized as it intervened in unprecedented fashion to stay EPA’s Clean Power Plan by a 5-4 vote on February 9, four days before anti-environmental Justice Antonin Scalia died suddenly.  In another uprecedented move, the U.S. Senate, controlled by President Obama’s opponents, refused even to consider his nomination of moderate Merrick Garland, chief judge of the D.C. Circuit, to replace Scalia.  As a result, incoming President Donald Trump will nominate a new successor to Scalia and a huge confirmation battle is likely.  New legal theories seeking judicial intervention to combat climate change were tested in court. In November a federal judge in Oregon refused to dismiss a suit claiming that government failure to combat climate change has “so profoundly damaged our home planet” that it threatens “fundamental constitutional rights to life and liberty.” See Juliana v. U.S., online at: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf 

HAPPY NEW YEAR!