Court Upholds Revocation of Ecuador Mining Permit, New PM in Australia, Kavanaugh Confirmation Hearings, New China Soil Protection Law (by Bob Percival)

As discussed in the July 31 blog entry, Zhang Jingjing, a lawyer once called “the Erin Brockovich of China,” has joined the Maryland environmental faculty as a lecturer in law to direct the Environmental Law Program’s Transnational Environmental Accountability (TEA) Project.  The TEA Project seeks to hold multinational companies accountable for the environmental impact of their activities in developing countries.  Professor Zhang appeared in court in Cuenca, Ecuador in July to support Kañari-Kichwa indigenous communities seeking to stop a Chinese company from mining in the Cajas Nature Reserve.  In a historic decision a judge had ordered the company to halt all mining activities because it failed to consult with indigenous communities and obtain their consent for the mining.  Appearing before a court reviewing the decision, Professor Zhang argued that Chinese law requires companies to abide by both international treaties signed by China and domestic law in the countries in which they operate. In August the court accepted Professor Zhang’s argument and upheld revocation of the mining permit.

Australian Prime Minister Malcolm Turnball was replaced by Scott Morrison in late August after Turnbull failed to survive a leadership challenge from within his own party.  What precipitation the challenge apparently was Turnbull’s relatively modest proposal to enact measures to help Australia meet its contribution to the Paris climate agreement.  A previous government from the opposition Labor party was brought down in part over discontent with a carbon tax.  The question whether democracies are as capable at addressing long-term environmental problems like climate change as authoritarian governments are is addressed in a chapter (“The Climate Crisis and Constitutional Democracies”) I authored for a new book, Constitutional Democracy in Crisis? The book, which was edited by constitutional law scholars Marc Graber, Sanford Levinson & Mark Tushnet, has just been published by Oxford University Press, https://global.oup.com/academic/product/constitutional-democracy-in-crisis-9780190888985?cc=us&lang=en&

The Senate Judiciary Committee held hearings last week on the nomination of Judge Brett Kavanaugh to become an Associate Justice of the U.S. Supreme Court.  Because Kavanaugh will be replacing Justice Anthony Kennedy, a key swing vote in some environmental cases including Massachusetts v. EPA (upholding EPA’s ability to use the Clean Air Act to address climate change), Kvanaugh’s confirmation could have profound implications for environmental law.  This week the University of Pennsylvania Law School’s Regulatory Review published a short essay I wrote on “Judge Kavanaugh’s Activist Vision of Administrative Law,” https://www.theregreview.org/2018/09/04/percival-judge-kavanaugh-activist-vision-administrative-law/  I highly recommend reading the testimony Professor Lisa Heinzerling of Georgetown presented to the committee, which is available online at https://www.judiciary.senate.gov/imo/media/doc/Heinzerling%20Testimony.pdf

I note in my essay that one of Judge Kavanaugh’s worst decisions is his August 2017 Mexichem Fluor decision invalidating EPA’s regulations phasing out HFCs, which are powerful greenhouse gases.  This decision has outraged not just environmental groups, but also most U.S. companies that manufacture refrigeration and air conditioning equipment.  Yet on August 27, 2018 the U.S. Solicitor General opposed Supreme Court review of the decision on the ground that EPA has now reversed its interpretation of the Clean Air Act and agrees with Kavanaugh’s decision.  This could represent a severe threat to U.S. ability to implement the Kigali Agreement.

On August 31, after long years of debate, the Standing Committee of China’s National People’s Congress adopted a Soil Pollution Prevention and Control Law.  Despite reports last year that the law would be quite stringent and be similar to the U.S. Superfund legislation (Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)), the law is not nearly so strict.  It reportedly places more emphasis on plans, general surveys, and monitoring of soil than on imposing liability for remediation.  The law will take effect on January 1, 2019.