New Zealand and India Give Rivers Legal Personality, World Water Day, Beijing Closes Its Last Coal-Fired Plant, China Trip & World Baseball Classic (by Bob Percival)

During the last two weeks New Zealand and India have granted legal rights to rivers.  On March 15 legislation was adopted by the New Zealand parliament that grants the Whanganui River the same legal rights as humans.  The provision is part of legislation settling claims against the New Zealand government by the indigenous iwi people.  Under the legislation two guardians will be appointed to represent the river -- one selected by the iwi and the other by the Crown.  On March 20 the high court in Uttarakhand state in India, citing the New Zealand precedent, granted legal personality to the Ganges and Yamuna Rivers.  The judges declared that the rivers and their tributaries are “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities.”  The court appointed the head of the National Mission for a Clean Ganges and the state’s advocate general and chief secretary to represent the rivers in legal proceedings.  The decision is the product of public interest litigation brought against the states of Uttarakhand and Uttar Pradesh for failure to cooperate with federal government efforts to protect the Ganges.

March 22 was celebrated as World Water Day and the start of China Water Week.  The United Nations Children’s Fund reported that 1.8 billion people still use contaminated drinking water.  The Sustainable Development Goals adopted by the UN in 2015 include ensuring that everyone has access to safe drinking water by 2030.  On March 20 China’s Ministry of Environmental Protection reported that the nation had met its goals for improving water quality in 2016 with 67.8% of the country’s 1,940 monitoring stations reporting water quality within the top three tiers of the nation’s rating system.  On March 22 China’s State Oceanic Administration reported that 95% of the nation’s marine waters met the nation’s highest tier of the country’s four-tier system for assessing the quality of marine waters. China is in the process of having its provinces establish “river chiefs” with responsibility for preventing water pollution in watersheds

On March 18 Beijing officials closed the last remaining coal-fired power plant operating in the city.  The Huangneng Beijing Thermal Power Plant, owned by China Huaneng Group, opened in June 1999 in the eastern suburbs of Beijing.  It is the last of four coal-fired power plants in Beijing to be retired.  The other three were retired in 2014 and 2015.  Together they burned more than 8.5 million tons of coal annually.  With the plant’s closure, Beijing became the first large city in mainland China to no longer have coal-fired power plants, though it still imports some electricity generated by coal-fired power plants in Inner Mongolia and Hebei provinces.  Capital Retires its Last Coal-Fired Power Station, China Daily, March 20, 2017, at A7.

On March 24, U.S. President Donald Trump granted approval for construction of the Keystone XL pipeline.  Trump’s decision reverses former President Obama’s November 2015 denial of a permit for the pipeline to cross the Canadian border.  The pipeline still needs approval from Nebraska authorities, something that Trump promised to help expedite.

The University of Maryland Carey School of Law has announced a successor to Professor Jane Barrett, director of Maryland’s Environmental Law Clinic.  EPA attorney Seema Kakade will be the new director of the clinic beginning on July 1, 2017, when Professor Barrett retires.  Professor Kakade is an expert on air pollution issues who helped handle the prosecution of Volkswagen for its deceptive emissions-testing software.  She also formerly served as director of the Environmental Law Institute’s India program.

I have been in Shanghai for the past week while on spring break.  I made a presentation at NYU Shanghai on March 21 of some of the highlights of environmental law films my students have made over the years.  Two of my students (Chris Remavege and Taylor Lilley), who made the top films in the class last fall then presented their films, “Glass Half Full: Sustainable Vineyards” (about how wineries are trying to reduce their carbon footprints) and “A World in Retreat” (about adapation to sea level rise). On Wednesday I gave a lecture on international environmental law at Shanghai Maritime University.  On Thursday I was part of a panel discussion at NYU Shanghai on careers in environmental law and I gave a presentation on the Trump administration and environmental law to students from Shanghai Jiatong University’s Ko Guan School of Law.  

On the way to China I stopped in San Diego to attend World Baseball Classic games on March 17 & 18.  I saw the U.S. narrowly lose to Puerto Rico and then defeat the Dominican Republic in the game that advanced the U.S. team to the semifinals. After defeating Japan in the semifinals on March 21, the U.S. won the championship by defeating Puerto Rico on March 22.  This is the first time the U.S. has won the World Baseball Classic since it was started in 2006.  It is now played every four years.

VW Guilty Plea, Pruitt on Climate, IBWC Investigating Sewage Spill, Beijing Taxis to Go Electric, Human Rights Lawsuits Against Canadian Mining Companies (by Bob Percival)

I just returned from Guadalajara, Mexico where my son and I attended World Baseball Classic (WBC) games on Friday and Saturday.  The WBC is an international baseball tournament that is held every four years.  We attended games between Puerto Rico and Venezuela and Mexico versus Puerto Rico.  The 16,000-seat Estadio de Baseball de los Charros de Jalisco was filled to capacity and the atmosphere was more like at the World Cup than a regular MLB game.  Puerto Rico won both games and will advance to the next round next weekend in San Diego.  I also checked another item off my bucket list by touring tequila distilleries around the town of Tequila, just north of Guadalajara.

On March 10 Volkswagen AG pled guilty in federal district court in Detroit to criminal charges for intentionally violating the Clean Air Act and obstruction of justice in connection with its cheating on vehicle emissions testing.  As announced earlier when its plea agreement was disclosed, the company will pay a $2.8 billion criminal fine.  It also was disclosed that VW will pay an added $1.5 billion civil penalty.  When the company is formally sentenced on April 21 the court is expected to appoint independent monitor to track its regulatory compliance for the next three years.  Seven VW executives have been indicted for their role in this deliberate fraud.  Only one has been arrested when he was caught trying to leave the U.S.  The others are in Germany and it is unclear whether that country will permit their extradition to the U.S. to face the criminal charges.  If no high-level VW executives go to jail, it will be a severe indictment of the effectiveness of criminal sanctions against corporations for environmental violations.

Last week during an interview on CNBC, EPA Administrator Scott Pruitt stated that he did not believe CO2 was a primary contributor to climate change.  Critics of Pruitt immediately pointed out that this contradicts what EPA's own website says.  Pruitt subsequently stated that he thinks Congress should decide whether EPA has the authority to regulate emissions of greenhouse gases, an issue that already has been resolved by the U.S. Supreme Court a decade ago in Massachusetts v. EPA, a decision the Court has twice reaffirmed.  For someone who claims to want to adhere strictly to the law, Pruitt has some unusual ideas.  In an editorial on March 12, the Houston Chronicle stated that "The Environmental Protection Agency serves a a pollution referee in the competition between industry and nature."  But it said that "everyone should start to worry" because Pruitt was acting as a referee who "runs out on the field, grabs the ball and stiff arms his way into the end zone." Carbon Referee, Houston Chronicle, March 13, 2017 at A29. The editorial noted that at an oil industry conference in Houston last week the Saudi Arabian Energy Minister Khalid Al-Falih emphasized the importance of investments to help shrink the carbon footprint of fossil fuels. "Petroleum is an international business, and whether Pruitt likes it or not, the world is moving ahead on carbon regulations.  The Trump administration cannot keep reality at bay.  The industry is already preparing itself for inevitable global warming rules.  Pruitt's refusal to get on they level has started to hurt long-term plans."

The U.S./Mexico International Boundary and Water Commission (IBWC) announced that it will investigate a massive spill of raw sewage that fouled beaches from Tijuana to San Diego.  The spill which was first spotted in early February, is estimated to have included more than 143 million gallons of raw sewage that spilled into the Tijuana River.  Although it originated in Mexico, the precise source and cause of the spill are unclear.

Municipal authorities in Beijing announced that the city taxi fleet will be replaced with electric vehicles.  Approximately 67,000 existing taxis in the city will be replaced with electric vehicles and all new taxis will be electric.  The move is being undertaken as a response to severe air pollution that has plagued the city this winter.  It also would be nice if the city prosecuted taxi drivers who disable seat belts in their vehicles and require taxi drivers and passengers to use them.

Friday March 3 was the one-month anniversary of the murder of Honduran environmental activist Berta Caceres.  Eight suspects remain in custody, two of whom were arrested in the last two months.  The U.S. Embassy in Honduras released a statement marking the anniversary of the murder stating that the U.S. government “remains committed to helping Hondurans build a future in which the underlying causes of impunity are resolved, and in which the guilty are held to account for their actions.”

In the last several months two Canadian courts have allowed lawsuits to proceed against Canadian mining companies for harmed caused in their operations abroad.  In late January the British Columbia Court of Appeal allowed a human rights lawsuit to proceed against Tahoe Resources Inc.  Plaintiffs in the lawsuit are seven Guatemalan protesters who were shot in April 2013 while protesting the Escobel mine owned by a subsidiary of Tahoe in southeastern Guatemala.  The court unanimously held that a lower court had erred in finding that Guatemala was a better forum for hearing the case. Garcia v. Tahoe Resources, Inc.  In October 2016 the British Columbia Supreme Court allowed a lawsuit alleging human rights violations by a Canadian company at a mine in Eritrea to proceed. Araya v. Nevsun Resources Ltd.

On February 28, 2017 President Donald Trump signed an executive order directing EPA Administrator Scott Pruitt to reconsider EPA’s “waters of the United States” rule.  This rule, which was promulgated in 2015, is a product of EPA’s long-time efforts to clarify the reach of federal jurisdiction under the Clean Water Act.  The rule was necessary because of the U.S. Supreme Court’s bizarre decision in Rapanos v. U.S., where the Court split 4-1-4.  Four Justices, led by Justice Scalia, stated that the Clean Water Act did not apply to wetlands that are adjacent to the non-navigable tributaries of navigable waters. Four Justices stated that the Act did apply.  Justice Kennedy, however, announced his own “significant nexus” test.  Although Kennedy’s test was rejected by all eight other Justices, it became the deciding factor and EPA’s rule was intended to determine when such waters have a significant nexus to navigable waters.  The new executive order directs EPA to consider adopting Justice Scalia’s “continuous surface connection” test that would radically restrict federal jurisdiction.  However, since this test was rejected by a majority of the Court (Kennedy and the four dissenters), EPA would be on shaky legal grounds if it adopts it.