A lot has happened since my last blog post 11 weeks ago. I am delighted to report that the 8th edition of my environmental law casebook (Environmental Regulation: Law, Science & Policy) was published by Wolters Kluwer in early February. The book is now available in bookstores and can be ordered online. I am finishing a new Teacher’s Manual for it that will be published shortly.
I spent spring break in China where I gave a lecture at Shanghai Jiaotong University. Despite noting in my last blog post that air quality in Chine reportedly had improved, it was not at healthy levels during the week I was in Shanghai. The mood among academia in China seems to have soured as the Communist Party expands its control over the academy, economy, and government with Xi Jingping now authorized to rule for life. Although I am no fan of President Trump or tariffs, I agree with the conclusion that the U.S. needs to take a stronger stand against Chinese government restrictions on foreign investment, internet access and trade.
On March 29 I spoke at a conference at Emory University Law School sponsored by the Emory Corporate Governance and Accountability Review. I spoke on “The Corporation and the Consumer: Responsible and Irresponsible Corporate Behavior.” As examples of irresponsible behavior I discussed the history of the lead industry, the asbestos industry, the tobacco industry, and the Volkswagen auto emissions scandal. As examples of responsible corporate behavior I noted the increasing number of companies using independent auditors to ensure compliance with environmental and labor laws by their supply chains. I also spoke to students in Emory’s masters program for Chinese lawyers about the state of environmental law in China.
In February 2018 the Inter-American Court of Human Rights released an advisory opinion first written in November declaring that the right to a healthy environment is fundamental to human existence. The court’s opinion was issued in response to a request from Colombia. The opinion declared that the right to a healthy environment is both an individual and collective right protecting both current and future generations. The court declared that “[s]tates are obligated to prevent significant environmental damage[] within and outside their territory.”
In the Juliana future generations climate litigation, which is before a federal district court in Oregon, on March 7, 2018, a panel of Ninth Circuit judges denied without prejudice the federal government’s motion for a writ of mandamus to stop discovery and a future trial. In re United States, 2018 WL 1178073 (2018). The court held that the federal government had not met the “high bar for mandamus relief” at this stage of the litigation. It observed that it was “mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies plaintiffs seek may not be available as redress.” But the court left it for the district court to develop the record and to consider the claims raised by the plaintiffs. Plaintiffs are hoping for a trial to commence before the end of 2018.
On February 27 Germany’s Federal Administrative Court in Leipzig ruled that German cities have the legal authority to ban cars using diesel fuel in order to reduce air pollution in urban areas. Automakers had argued that cities needed federal legislation expressly authorizing such bans, but the court disagreed. Environmentalists hailed the ruling as providing an important tool to cities who are having a hard time complying with air pollution standards. An excellent summary of the VW diesel defeat device scandal in the U.S. is provided in episode one of a new Netflix series called “Dirty Money.”
On April 2 EPA Administrator Scott Pruitt released a proposal to roll back U.S. fuel economy standards that require vehicles to average 38.3 miles per gallon in the 2018 model year, rising to 54.5 mpg by 2025. The standards, which are set jointly by EPA and the National Highway Transportation Safety Administration, were established in 2012 and reaffirmed just before the Obama administration left office in January 2017. When the decision is finalized, it will trigger a massive legal battle with the state of California, which since 1970 has been authorized to adopt stricter motor vehicle emissions standards than the federal government. Despite his rhetoric about giving states greater freedom, Pruitt is not inclined to do so for California. He claims that California “should not be allowed to dictate” the nation’s standards, but it would not be doing so if it were allowed to retain a higher fuel economy standard. Surprisingly, the document EPA released proposing this landmark change was devoid of analytical content and only 38 pages long, most of it cribbed from comments by automakers. A legal battle is looming and EPA is not exactly arming itself well.
The Major League Baseball season has opened in the United States. In South Korea air pollution forced the Korea Baseball Association to postpone three games. The games had been scheduled to be held on April 6 in Seoul, Incheon, and Suwon. They were postponed because of high levels of fine dust in the air. “South Korean baseball league postpones games over smog,” Washington Post, April 7, 2018, at A7.
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