On March 29 El Salvador’s Legislative Assembly enacted legislation banning all metals mining in the country. The measure passed with bipartisan support and backing from the influential Roman Catholic church. Supporters of the ban argued that El Salvador’s environment is too fragile to support metals mining, particularly in light of the country’s limiting water resources. While several countries have prohibited the use of cyanide in mining operations, El Salvador becomes the first country to prohibit all metals mining. Mining for coal, salt and other non-metalic substances will still be permitted. In October 2016 El Salvador prevailed in an international arbitration that rejected claims for compensation by a Canadian-Australian company that was denied permits to mine gold. Gene Palumbo & Elisabeth Malkin, El Salvador, Prizing Water Over Gold, Bans All Metal Mining, N.Y. Times, March 29, 2017, https://www.nytimes.com/2017/03/29/world/americas/el-salvador-prizing-water-over-gold-bans-all-metal-mining.html?_r=0.
On March 31 Japan’s whaling fleet returned from Antarctica after killing 333 minke whales in the Southern Ocean. In 2014 the International Court of Justice ruled that Japan’s whaling was in violation of rules established by the International Whaling Commission (IWC) because it was not being conducted for purposes of scientific research. While this decision temporarily halted Japanese whaling in the Antarctic, the government of Japan revised its program to qualify for the research loophole. Japan’s Fisheries Ministry claims that the whale hunt was necessary to learn more about the reproductive and nutritional cycles of minke whales. Kitty Block, vice president of the Humane Society International, described the whale hunt as “an obscene cruelty in the name of science that must end.” Rachel Mealey, Japan’s whaling fleet returns after killing 333 minke whales in Southern Ocean, ABC, March 31, 2017, http://www.abc.net.au/news/2017-03-31/japan-whaling-fleet-kills-333-minke-whales-southern-ocean-hunt/8405690.
On March 28 U.S. President Donald Trump signed Executive Order 13,783 on “Promoting Energy Independence and Economic Growth.” While stating that “all agencies should take appropriate actions to promote clean air and clean water for the American people,” it directs agencies instead to focus on removing burdens to the development of domestic energy resources. The executive order rescinds President Obama’s June 2013 Climate Action Plan as well as four Obama Presidential Memoranda on climate change. It directs the Council on Environmental Quality to rescind its August 2016 final guidance on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.
Executive Order 13,783 also directs EPA Administrator Scott Pruitt to review and, “if appropriate” to “suspend, revise or rescind” EPA regulations on greenhouse gas emissions, including the Clean Power Plan that applies to emissions from existing power plants. The Clean Power Plan currently is stayed pending the outcome of legal challenges to it, which could be decided any day by the U.S. Court of Appeals for the D.C. Circuit. The Trump administration has asked the court to suspend its consideration of the legal challenges, which were argued en banc on September 27, 2016. The executive order also disbands the Interagency Working Group on the Social Costs of Greenhouse Gases and withdraws its guidance on how the social cost of GHG emissions should be calculated. A copy of EO 13,783 is available online at: https://www.federalregister.gov/documents/2017/03/31/2017-06576/promoting-energy-independence-and-economic-growth
In a unanimous decision issued on March 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reversed a decision holding that the Endangered Species Act (ESA) could not constitutionally be applied to the endangered Utah prairie dog. In November 2014 federal district judge Dee Benson had held that because the prairie dog was found only in southwestern Utah, Congress did not have the constitutional authority under the commerce clause to protect it. Under this rationale, the more endangered a species is, the less would be the federal power to protect it. In People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, the Tenth Circuit panel concluded that the ESA can constitutionally be applied to the prairie dog because even noncommercial, purely intrastate activity can be regulated when it is an essential part of a larger regulatory scheme that has a substantial effect on interstate commerce. The court noted that most endangered species do not cross state lines but their protection is an essential part of a larger regulatory scheme to preserve biodiversity. As a result of this decision, nine U.S. Courts of Appeals have upheld the constitutionality of the ESA and none has held it to be unconstitutional. A copy of the court’s decision is available online at: https://www.ca10.uscourts.gov/opinions/14/14-4151.pdf
Surprise inspections by China’s Ministry of Environmental Protection (MEP) found widespread violations of regulations to control air emissions in seven northern Chinese cities. On April 3 MEP’s website reported that many industrial plants have been fabricating real-time monitoring data and operating production lines that are supposed to be shut down during smog alerts. In March an MEP inspection of 869 factories in Beijing, Tianjin, Hebei and Shanxi provinces found more than 200 environmental violations including excessive emissions and falsification of monitoring data. Starting on April 5, MEP has launched a year-long environmental inspection program in 28 major cities that will involve more than 5,600 government workers.
Even though China and the U.S. are the two largest emitters of greenhouse gases in the world, climate change was not discussed when Chinese President Xi Jinping met with President Trump for the first time on April 6-7. While directing EPA to consider repealing its regulations to control GHG emissions, President Trump has not taken steps to pull the U.S. out of the Paris Agreement.
On April 5 Dean Mohammad Takshid of the University of Tehran Law School spoke to my Global Environmental Law Seminar by Skype. Dean Takshid gave a terrific lecture on the environmental challenges facing Iran, including air pollution, desertification and water shortages.