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!