Yesterday, in what likely was his last act as a Justice of the Supreme Court, Anthony Kennedy joined his colleagues in refusing the Solicitor General’s request to stay discovery and the upcoming trial in the Juliana v. U.S. lawsuit by young people seeking to hold the federal government liable for failing to protect them against climate change. In an unsigned order the Court called the government’s request for relief “premature.” However, like the 9th Circuit noted when it denied a similar motion, the Supreme Court cautioned that the “breadth of respondents’ claims is striking,”and it opined that “the justiciability of those claims presents substantial grounds for difference of opinion.” The Court’s order cautioned the federal district court hearing the case in Portland, Oregon to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.” Justice Kennedy’s resignation becomes effective today, leaving the Court with eight members until the Senate confirms a new Justice.
On July 19 federal district judge John F. Keenan dismissed the city of New York’s common law nuisance suit against Chevron, Conoco Phillips, ExxonMobil and Royal Dutch Shell for fossil fuel production that contributes to climate change. Citing the Supreme Court’s 2011 decision in American Electric Power v. Connecticut (AEP), the judge held that the Clean Air Act displaces the federal common law of nuisance because it gives EPA responsibility to regulate emissions of greenhouse gases. Responding to the city’s state law nuisance claim, Judge Keenan distinguished the case from AEP, which refused to decided whether the Clean Air Act displaces state law nuisance claims. Because New York City’s case involved the use of fossil fuels sold worldwide, rather than emissions from specific power plants as in AEP, the judge held that state nuisance law could not be used because a single federal standard should apply. Several other cities and states have brought climate suits against oil companies with mixed results.
On July 23 Zhang Jingjing, who this week is joining Maryland Law’s Transnational Environmental Accountability (TEA) Project, appeared in court in Cuenca, Ecuador to support indigenous tribes seeking to have an appellate court uphold a lower court’s revocation of a mining permit awarded to a Chinese company. Jingjing’s amicus brieft was written in three languages - Chinese, English and Spanish. She argued that issuance of the permit without any notice or consultation with affected indigenous populations violated norms under both Chinese law and international law. The court will issue its decision shortly. More details on this case are available at: https://intercontinentalcry.org/can-the-law-prevail-over-chinese-investments-in-ecuador/ The TEA Project is focusing on holding multinational companies accountable for environmental harm they cause in developing countries.
Earlier this month two of my colleagues and I, joined by three Maryland students and recent graduates, made presentations at the 16th Annual Colloquium of the IUCN Academy of Environmental Law in Glasgow, Scotland. This year 400 participants from nearly 40 countries attended the Colloquium, a new record for the Academy. The theme of the colloquium, which was held at the University of Strathclyde from July 3-6, was “The Transformation of Environmental Law and Governance: Innovation, Risk and Resilience.”
Joined by rising 3L Alex Belman, I presented a history of innovation in environmental law and policy on July 5. The presentation traced the evolution of innovations such as protected areas, freedom of information, environmental impact assessment, emissions trading, and pollution disclosure requirements. I also gave a presentation on the challenges of teaching environmental law at a special pre-colloquium Teaching and Capacity-Building Workshop on July 3.
Maryland’s environmental law partnership with Pace University currently serves as the secretariat for the IUCN Academy,which was founded in 2003. Pace hosted the Academy’s fourth colloquium in 2006 and Maryland hosted the tenth colloquium in 2012. Next year’s colloquium will be held in Malaysia in early August 2019.
On Monday I made a presentation on the state of water law at the annual meeting of the Center of Excellence at the Nexus of Sustainable Water Reuse, Food and Health (CONSERVE) in College Park. CONSERVE is the multi-disciplinary project funded by the US Department of Agriculture to explore new technologies for using nontraditional water sources for irrigation. The project involves physical and social scientists from Maryland, Delaware, Arizona and New Mexico and it is assembling one of the world’s largest data bases on factors that affect the quality of water used in agriculture.
