Global Environmental Law

U.S. Court Rejects Chevron Appeal, China Air Monitoring, Apple Supply Chain, Peru Mine, New EPI Rankings, California Car Standards (by Bob Percival)

2012-01-29T13:20:00.000-08:00

On January 26 the U.S. Court of Appeals for the Second Circuit released its decision rejecting Chevron’s efforts to reinstate an injunction barring global enforcement of en Ecuadoran court’s $18 billion judgment against the oil giant for oil pollution. Last September the court had lifted the New York federal district court’s injunction three days after hearing oral argument in the case. The decision, Chevron v. Naranjo, No. 11-1150-cv(L), concludes that New York’s Uniform Foreign Country Money-Judgments Recognition Act does not “grant putative judgment-debtors a cause of action to challenge foreign judgments before enforcement of those judgments is sought.” Thus Chevron can challenge the Ecuadoran judgment “only defensively, in response to an attempted enforcement – an effort that the defendants-appellees have not yet undertaken anywhere, and might never undertake in New York.”

The internet campaign that helped force Chinese authorities to agree to improve air quality monitoring was spurred in part by Chinese NGOs purchasing their own pollution monitors. Last May citizens in Beijing spent $4,000 to purchase their own air quality monitoring device and in December groups in Shanghai and Wenzhou followed suit, with the Wenzhou group selling oranges to finance their purchase. After data from these private monitors and from the U.S. Embassy’s twitter feed contradicted Chinese government claims concerning air quality, China’s Ministry of Environmental Protection agreed to release hourly readings of fine particulate levels in Beijing, while promising to set a standard to control them as soon as possible. Sharon LaFraniere, Activists Crack Wall of Denial About Air Pollution, New York Times, Jan. 27, 2012.

Chinese environmentalists have been exposing labor and environmental violations by companies that are part of the supply chains of multinational electronics companies, including Apple Inc. On January 25, the New York Times examined labor and safety conditions at an iPad manufacturing plant in Chengdu, China, where some workers were killed in an aluminum dust explosion last May. Charles Duhigg & David Barboza, In China, Human Costs Are Built Into an iPad, New York Times, Jan. 25, 2012, at A1. Apple CEO Tim Cook responded to the TImes article by sending an email to Apple employees on January 26. He stated: “We care about every worker in our worldwide supply chain. Any accident is deeply troubling, and any issue with working conditions is cause for concern. Any suggestion that we don’t care is patently false and offensive to us.” Apple certainly has the financial resources to correct health, safety and environmental problems with its supply chains. Last week it passed ExxonMobil as the most valuable company in the world and the company currently holds nearly $100 billion in cash, greater than the gross domestic products of more than half of the countries in the world.

On January 24 the government of Peru announced that it has selected three independent consultants to review the environmental impact of Newmont Mining’s $4.8 billion gold and copper mine. Work on the project, which is the largest foreign investment in Peru’s history, has been suspended for the last two months due to protests that blockaded the town of Cajamarca. Gregorio Santos, governor of the region where the mine is located, has called for the project to be canceled because of concerns over its environmental impact. Environmental protests in Peru have centered on mines and dams being built by foreign companies including the Tia Maria copper project (U.S. company), the Santa Ana silver project (Canadian company), the Inambari dam (Brazilian company), and the Tambo 40 hydroelectric project (Brazilian company). Naomi Mapstone, Peru Sets Up Close Scrutiny of Conga Mine, Financial Times, Jan. 25, 2012.

As the 2012 World Economic Forum convened in Davos, Switzerland last week, Yale researchers released their latest update of their Environmental Performance Index (EPI ), which seeks to rank countries on their environmental performance. Switzerland ranked first in the latest ratings, while Russia suffered the greatest decline to 106th place due to a breakdown in air and water pollution controls, increased overfishing and deforestation. Latvia moved into second place and showed the greatest improvement overall due to eliminating coal from its electrical supply mix and reforestation efforts. The complete rankings are available online at: http://epi.yale.edu/epi2012/rankings.

On January 24 President Obama delivered his third State of the Union address. He reiterated the administration’s commitment to promoting clean energy and defended EPA’s mercury rule. President Obama touted increased oil and gas production in the U.S. and reminded the audience that hydraulic fracturing that produced much of this increase was developed in part through federal support.

This week California’s Air Resources Board unanimously approved the Advanced Clean Car Program. The program will require a two-thirds reduction in auto exhaust emissions and the production of more than a million zero-emission vehicles for the California market by 2025. The rules are designed to reduce greenhouse gas emissions from vehicles by half by 2025. Peter Fimrite, State OKs Stringent Fuel Rules, San Francisco Chronicle, Jan. 28, 2012, at C1.

This week I attended the annual Macworld conference in San Francisco, the annual gathering of devotees of Apple products. The new product that holds the greatest interest for me is Apple’s iBooks Author software, which was announced on January 19. This app allows authors to create electronic textbooks with rich multi-media material that can be sold through Apple’s online iTunes store (http://www.apple.com/ibooks-author/). Although Apple no longer directly participates in the conference, vendors of supporting products were there in force selling things like an iPhone case that can open a beer bottle (intoxicase.com). Serendipitously, on Friday night I was able to attend a reunion of some of the members of the Beijing Environment and Energy Roundtable (BEER) who now are living and working in the San Francisco Bay Area. The gathering was organized in part by Alex Wang, who was with NRDC’s Beijing office when I lived there in 2008 and who now is a visiting professor at Boalt Hall. It was a great opportunity to catch up with Alex and other people who share a passion for China’s environment. I really appreciate their including me in the group.

Obama Nixes Pipeline, Shark Fin Ban Spreads in Asia, Vermont Yankee Wins Extension, U.S. Oil Production Surges (by Bob Percival)

2012-01-23T17:25:00.003-08:00

On January 18 President Obama denied approval for the construction of the Keystone XL pipeline to transport oil from Canadian tar sands to refineries on the U.S. Gulf Coast. Environmentalists fiercely oppose the pipeline, which they argue would facilitate the use of the dirtiest, carbon-intensive fuel on the planet while threatening spills that would harm precious groundwater resources. Proponents of the pipeline argue that the pipeline project will create jobs and that the tar sands oil will be used whether or not the pipeline is built because Canada will instead sell the oil to China if the pipeline is not built. Canada currently is holding hearings on a plan to build a trans-Canada pipeline to the Pacific Ocean. While Canada’s First Nations tribes initially were united in their opposition to the proposed Canadian pipeline to the Pacific, many have dropped their opposition in return for a 10 percent equity share in the Canadian project. President Obama argued that the 60-day period Congress had given him to make a decision was too short in light of the need to study the environmental impact of a new route for the pipeline that would avoid Nebraska’s Ogallala aquifer. His decision does not permanently bar construction of the pipeline. The President indicated that he eventually would consider a new application subject to the normal timetable for environmental reviews.

Efforts to protect endangered sharks gained ground last week when the luxury hotel chain Shangri-La Asia Ltd. announced that it would ban shark fin from all the dishes served at its 72 hotels throughout Asia. Two weeks ago the large supermarket chains Carrefour and FairPrice announced that their Singapore stores will no longer sell shark fins. The popular South Beauty chain of restaurants in China also banned shark fins two months ago, as did the Peninsula Hotel chain. This represents a significant shift in Chinese attitudes from the time when I lived in Beijing in 2008. The restaurants are quite significant. I often ate at the South Beauty restaurant in Oriental Plaza and the Beijing Shangri-La Hotel’s Blu Lobster restaurant was absolutely the best in town. Four years ago, while dining at an upscale restaurant in the Oriental Plaza complex called My Humble House, an EPA attorney and I asked the waitress why they still displayed two pages of shark fin dishes on their menu despite Chinese basketball star Yao Ming urging people to stop eating shark fin soup. She replied, “then there will just be more for the rest of us to eat.”

Last week a Vermont federal district judge, Gavin Murtha, ruled that the Vermont Yankee nuclear power plant could continue operating despite efforts by the Vermont legislature to prohibit an extension of its operating license. The plant initially had been given a 40-year operating license that would expire in March 2012. But last March the U.S. Nuclear Regulatory Commission (NRC) approved a 20-year extension of the plant’s license, just as the Fukushima Daiichi nuclear accident was occurring in Japan. Judge Murtha ruled that Vermont’s efforts to prohibit an extension of the license were based primarily on safety concerns and thus are preempted by federal law and the NRC’s issuance of a license extension.

On January 23 the U.S. Energy Information Agency (EIA) issued its preliminary 2012 Annual Energy Outlook (see http://www.eia.gov/todayinenergy/detail.cfm?id=4671). The EIA reported that production of oil and natural gas has surged dramatically in the U.S. in recent years. Domestic crude oil production increased from 5.1 to 5.5 million barrels per day in 2010, more than in nearly any other country. Last year North Dakota produced more oil than OPEC member Ecuador. The EIA is forecasting a 20 percent increase in U.S. production of crude oil to 6.7 million barrels daily in 2010. Due to higher fuel economy standards and increased domestic production, U.S. petroleum imports are projected to decline from 49 percent of domestic liquid fuel consumption to 28 percent in 2020. In four years the U.S. is projected to become a net exporter of natural gas, due largely to expanding use of hydraulic fracturing. U.S. emissions of carbon dioxide in 2020 are expected to be 7 percent below their 2005 levels, though tighter fuel economy standards may reduce them even further.

A second call for papers has been issued for the 10th Colloquium of the IUCN Academy of Environmental Law, which will be held from July 1-5, 2012 at the University of Maryland Francis King Carey School of Law. The theme of the Colloquium is “Global Environmental Law at a Crossroads.” The deadline for submitting proposed speaker/paper abstracts has been extended to February 15, 2012. For details see: http://digitalcommons.law.umaryland.edu/gelc/

Sackett Oral Argument, Apple Supply Chain, EPA GHG Data, Rio+20 Draft (by Bob Percival)

2012-01-16T19:32:00.000-08:00

On Monday January 9 the U.S. Supreme Court heard oral argument in Sackett v. EPA, a case raising the question whether recipients of an EPA administrative compliance order to stop filling wetlands can get pre-enforcement judicial review. Only a few months ago the Court had denied review of a similar issue involving the General Electric Company and a Superfund unilateral administrative order to clean up PCBs in the Hudson River. I attended the oral argument and it definitely did not go well for EPA. The government made little effort to rebut the Pacific Legal Foundation’s portrayal of EPA as an agency that seeks to dictate what people can do in their own backyards. The Natural Resources Defense Council had filed an amicus brief noting that no individual permit is needed to fill wetlands on properties that are less than half an acre (the Sackett’s property is .6 acres). But at the oral argument EPA was portrayed by the petitioners as an out of control agency trying to dictate what homeowners can do in their own backyards, leading Justice Alito to express anger that such an outrage could occur in the U.S.

While nearly everyone expects the Sacketts to win the case with the Court ruling that they can obtain pre-enforcement review of an EPA administrative compliance order, environmental pundits are split over how serious a blow this will be to enforcement of the Clean Water Act (CWA). Some believe that EPA will simply substitute informal warnings for compliance orders with little impact on enforcement because they will not trigger pre-enforcement review. Others contend that it will neuter an important tool for EPA to achieve compliance with the CWA. There was no real discussion at the argument of the importance of protecting wetlands or the consequences for enforcement if pre-enforcement review of compliance orders is mandated.

On January 13 Apple Inc. released its Apple Supplier Responsibility 2012 Progress Report. A copy of the report is available online at: http://images.apple.com/supplierresponsibility/pdf/Apple_SR_2012_Progress_Report.pdf. It reveals that Apple conducted 229 audits of its suppliers in 2011, up from 127 in 2010. Apple found that 62 percent of its suppliers had violated a 60-hour per week limit on working hours, 32 percent had failed to comply with hazardous substance management regulations, and more than 35 percent had worker safety violations. For the first time Apple published a list of its 156 leading suppliers, accounting for more than 97 percent of the company’s supply chain. The company also announced that it would join the Fair Labor Association which could conduct outside monitoring of its suppliers. Jessica E. Vascellaro & Owen Fletcher, Apple Navigates China Maze, Wall St. J., Jan. 14-15, 2012, at B1.

Now that an intermediate appellate court in Ecuador has affirmed the Lago Agrio judgment against Chevron, the oil company fears efforts to collect the $18 billion judgment. It has filed an emergency motion asking the U.S. Court of Appeals for the Second Circuit to reinstate an injunction barring enforcement anywhere in the world, it has renewed its motion with the Eastern District of New York’s federal court to grant pre-judgment attachment of any proceeds the plaintiffs receive, and it has asked the Permanent Court of Arbitration in the Hague to require Ecuador to document how it will comply with a ruling issued last February that the judgment could violate a bilateral investment treaty. Stay tuned.

Last week EPA released an interactive map of the nation’s largest emitters of greenhouse gases (GHGs) in 2010. The map, which can be accessed online at: http://ghgdata.epa.gov/ghgp/main.do, allows you to view the largest emitters in your state and to do custom searches for data on particular facilities. Three coal-fired power plants owned by the Southern Company are the top emitters of GHGs in the U.S. with each releasing more than 20 million tons of carbon dioxide. The EPA data include 6,700 facilities, including refineries and chemical plants, that emit more than 25,000 tonsof GHGs annually. Tennile Tracy, Three Southern Co. Plants Are Top Emitters, Wall St. J., Jan. 12, 2012, at B3.

Last week a federal district judge granted preliminary approval to a settlement of litigation against manufacturers of defective Chinese drywall. Knauf Plasterboard Tianjin Co., a Chinese manufacturer, agreed last month to establish a fund to repair 4,500 properties in Alabama, Florida, Louisiana, and Mississippi. The company also has established a $30 million fund to compensate for harm, such as health problems, caused by the defective drywall.

Last week the United Nations Rio+20 Conference Bureau released its “Zero Draft” of the document that will serve as the basis for negotiations at the Rio+20 conference in June 2012. The document, entitled “The Future We Want,” includes the suggestion that Sustainable Development Goals, similar to the Millenium Development Goals, be adopted by 2015 and it largely defers to the Durban Platform on climate issues. A copy of the draft is available online at: http://www.stakeholderforum.org/fileadmin/files/zerodraft110112.pdf

Ecuador Judgment Affirmed, Beijing Air Pollution, U.S. Toxics Releases Increase, Nigerian Oil Subsidies End (by Bob Percival)

2012-01-08T19:56:00.000-08:00

Last week an appellate court in Ecuador upheld the $18 billion judgment against Chevron for oil pollution that had been awarded by a trial court in February 2011. The decision still can be appealed to Ecuador’s Supreme Court. The plaintiffs previously had told the U.S. Court of Appeals for the Second Circuit that they would not seek to enforce the judgment until the appeal in Ecuador was finished. Ecuador’s Supreme Court can still review the case and stay enforcement of the judgment if Chevron posts a multi-billion dollar bond. Naomi Napstone, Chevron Fights on Despite $18 Billion Ecuador Ruling, FInancial Times, Jan. 8, 2012, at 9.

The January 9th issue of the New Yorker features an excellent article on the Ecuador litigation against Chevron. The article, entitled “Reversal of Fortune: A Crusading Lawyer Helped Ecuadorans Secure a Huge Environmental Judgment Against Chevron -- But Did He Go Too Far?,” profiles plaintiffs’ lawyer Steve Donziger who has been involved in the litigation since 1993. Patrick Keefe, the author of the article, interviewed me for the article by phone for 40 minutes on November 25. We primarily discussed the legal issues involved in the case and I am not quoted in the article, which focuses largely on Donziger. I learned some interesting facts that I did not previously know, including that Donziger was in Barack Obama’s Harvard Law School class and about a prior settlement offer.

Last week the Beijing Municipal Environmental Protection Bureau announced that by January 23 it will provide the public with hourly PM2.5 data measuring the amount of small particulate (2.5 micron) air pollution in Beijing. The decision was announced after Chinese Environment Minister Zhou Shengxian toured Beijing’s air pollution monitoring facilities. As noted in previous blog entries, the U.S. Embassy has been tweeting air pollution readings that indicated that official Chinese data seriously underestimate the severity of air pollution in Beijing. Chinese officials maintain that Beijing experienced 286 “blue sky” days in 2011 compared with 252 such days in 2010. However, last Friday was officially reported as a “blue sky” day in Beijing even though the embassy’s tweets showed that pollution ranged from “very unhealthy” to “unhealthy”. The decision is viewed as one of the most important examples of Chinese officials bowing to public pressure expressed over the internet. Jeremy Page, Beijing Bows to U.S. On Air Quality Report, Wall St. J., Jan. 7-8, 2012, at A11.

On January 5 the U.S. Environmental Protection Agency (EPA) reported that releases of toxic chemicals into the environment increased by 16% in 2010 over 2009 levels. This was the first increase in toxic releases since 2006. EPA attributed most of the overall increase to the metal mining industry, but it also noted that releases from the U.S. chemical industry also had increased. Annual reporting of toxic emissions is required by the Emergency Planning and Community Right to Know Act (EPCRA). Juliet Eilperin, Toxic Releases Rose16 Percent in 2010, EPA Says, Washington Post, Jan. 5, 2012.

Last week China’s Tianjin Maritime Court agreed to hear a lawsuit brought by clam and sea cucumber producers against ConocoPhillips for oil pollution from offshore drilling in Bohai Bay. In June 2011 two leaks of oil and drilling muds occurred near a Conoco platform there. Conoco maintains that the contamination was mostly drilling muds that have been fully recovered, but Chinese authorities subsequently shut down oil production in the area. Conoco has stated that it will pay “reasonable compensation” to those harmed by the spill. CNOC, China’s national oil company, also announced last week that it had established a 500 million renminbi ($79 million) marine environmental fund. James T. Areddy, Chinese Court Accepts Offshore-Oil Lawsuit Against ConocoPhillips, Wall St. J., Jan. 3, 2012.

Gasoline prices soared last week in Nigeria as a result of the government ending fuel subsidies. The price of a liter of gasoline jumped from 65 naira (approximately 40 cents) to between 130 and 140 naira on January 2. This is the equivalent of a rise in gasoline prices from $1.50 to $5.00 per gallon. The Nigerian government announced that the $7.3 billion it had been spending annually on fuel subsidies could now be used to build schools, hospitals, and roads. Drew Hinshaw, Nigeria Braces for Gas-Price Protests, Wall St. J., Jan. 3, 2012, at A11. Responding to fierce protests generated by the end of the subsidy, the government announced that it would consider measures to reduce the cost of mass transit. It noted that oil subsidies had cost approximately one-quarter of the government’s annual budget and had contributed to corruption as much of the gasoline was resold at higher prices in neighboring countries. Drew Hinshaw, Kills of Christians, Protests Roil Nigeria, Wall St. J., Jan. 7-8, 2012, at A9.

On January 6 Japanese government officials announced that they would submit new legislation to the country’s Parliament to strengthen regulation of nuclear power. Goshi Hosone, the minister responsible for responding to the Fukushima Daiichi nuclear disaster, stated that the the legislation would mandate that Japanese nuclear power plants close after 40 years of operation while requiring plant owners to engage in “worst-case” analysis. Kelly Olsen & Phred Dvorak, Japan Plans Age Limits, Tougher Tests for Nuclear Plants, Wall St. J., Jan. 7-8, 2012, at A9.

Last week the annual conference of the American Association of Law Schools (AALS) was held in Washington, D.C. I spent Thursday afternoon at Aspen Publishers’ booth in the exhibit hall demonstrating their “SmartBook” technology that has been used to produce an electronic version of my casebook Environmental Regulation: Law, Science and Policy. The technology enables professors to annotate the book electronically and to embed links that provide a multi-media experience to students. It has proved wildly popular with the students who opted to use it.

Top 10 Developments of 2011, Setbacks for California & EPA Rules, China Dam & Steel Industry (by Bob Percival)

2012-01-01T20:13:00.001-08:00

Happy New Year! In keeping with tradition on this first day of 2012 here are what I consider to have been the top ten developments in global environmental law in 2011 (in no particular order).

(1) The March 2011 Japanese earthquake and tsunami that caused the world’s most catastrophic nuclear accident since Chernobyl at the Fukushima Daiichi powerplant fundamentally changed attitudes toward nuclear power around the world. It spurred a renewed phaseout of nuclear power in Germany, caused many countries to rethink their nuclear safety standards, and stalled plans for construction of new nuclear powerplants. It is now estimated that it will take at least 40 years to clean up the damaged Japanese reactors.

(2) The February 2011 $18 billion judgment against Chevron by a court in Lago Agrio, Ecuador for oil contamination of the Oriente region by Texaco during the 1970s spurred what has become a truly epic legal battle over collection of the judgment. Alleging fraud, Chevron filed a RICO lawsuit against the plaintiffs and their lawyers in federal district court in New York and obtained an injunction against enforcement of the judgment that was later dissolved by the U.S. Court of Appeals for the Second Circuit. The plaintiffs countered by receiving hedge fund financing to enable them to hire additional legal counsel to combat the ever-expanding litigation. Ironically, the plaintiffs first brought the case in federal court in New York in the early 1990s, but it was transferred to Ecuador at the behest of the oil company on the grounds of foreign non conveniens.

(3) The rapid deployment of hydraulic fracturing (“fracking”) to release natural gas deposits trapped in underground rock formations has greatly expanded U.S. natural gas production. Despite concerns that the practice may pollute underground sources of drinking water it was exempted from the U.S. Safe Drinking Water Act by an amendment pushed by Vice President Cheney in 2005 energy legislation. The huge increase in domestic natural gas production has made the U.S. a net exporter of energy for the first time in more than half a century. France banned fracking while the state of New York imposed a moratorium on the practice until its risks can be better understood. Fracking controversies are now spreading to other countries. See Ian Urbina, Hunt for Gas Hits Fragile Soil, And South Africans Fear Risks, N.Y. Times, Dec. 30, 2011, at A1.

(4) The Republican Party’s “War on EPA” and fierce opposition to virtually any form of environmental regulation was on display in the party’s presidential primary debates and nearly 200 votes by the U.S House of Representatives to roll back environmental regulations. The Obama administration helped ensure that few of these initiatives became law, but it made a horrendous decision to postpone EPA’s revision of national ozone regulations in a misguided effort to defuse political controversy. Climate change denial became an article of faith among Republican presidential candidates even though some previously had recognized it as a serious problem. Expensive advertising campaigns by fossil fuel industries may help explain how this could occur even in a year that featured a dozen extreme weather-related disasters in the U.S. Extreme drought, heat waves, floods, unprecedented tornado outbreaks, hurricanes and wildfires caused at least $54 billion in damage in the U.S. and cost at least 620 lives. See http://www.noaa.gov/extreme2011/

(5) Efforts to forge a global agreement to control GHG emissions to combat climate change resulted in December in the Durban Platform for Enhanced Action, an agreement to agree on such limits in the future. Australia, the last developed country aside from the U.S. to ratify the Kyoto Protocol, enacted legislation imposing a carbon tax, while Canada announced its withdrawal from Kyoto. Perhaps the most significant development in Durban’s COP-17 was the insistence for the first time by many poor developing nations that China and India agree to curb their GHG emissions.

(6) The EU hung tough in its efforts to include foreign airlines in the EU-wide cap-and-trade program to limit GHG emissions. In December the European Court of Justice rejected legal challenges against the program brought by non-EU airlines and 26 non-EU governments. This decision could spur new initiatives by non-EU countries to include EU airlines in non-EU cap-and-trade or carbon tax programs.

(7) Transparency initiatives gained momentum including efforts to “green” the supply chains of multinational corporations and to monitor suppliers’ compliance with environmental and labor laws. Ma Jun of China’s Institute of Public and Environmental Affairs played a particularly important role in these developments in China.

(8) Indigenous peoples and the governments of developing countries became more aggressive in seeking to combat environmental harm from projects promoted by developed countries in Asia, South America and Africa. The military government of Myanmar (Burma) stunned the world when it canceled China Power Investments’s construction of the Myistone Dam on the Irrawaddy River. Environmentalists and indigenous people fiercely opposed the project, which was intended to provide China with more electricity. Brazil and China responded to oil spills in their waters caused by offshore drilling by foreign oil companies even more aggressively than the U.S. responded to the BP oil spill.

(9) Many wind and solar energy companies faced hard financial times due to intensifying global competition and pressure to reduce government subsidies. This reinforced the case for policies to tax fossil fuels instead of trying to pick winners to subsidize from among emerging renewable technologies.

(10) In June the U.S. Supreme Court held that use of the federal common law of nuisance to combat climate change had been displaced by the Clean Air Act and EPA’s efforts to use it to regulate GHG emissions. This decision actually gava a boost to EPA’s GHG regulations, which are being challenged in the U.S. Court of Appeals for the D.C. Circuit.

Last week two decisions by federal courts dealt setbacks to important environmental rules. On December 29 a federal district judge in Fresno, California barred enforcement of provisions of California’s statewide program to reduce GHG emissions that require importers of crude oil or ethanol to buy emissions credits. Judge Lawrence J. O’Neill ruled that the regulations discriminate against fuel from other states in violation of the U.S. constitution’s dormant commerce clause. The decision effects at most 9% of the total emission reductions California seeks to achieve. On December 30 the U.S. Court of Appeals for the D.C. Circuit stayed the January 1 effective date of EPA’s Cross-State Air Pollution Rule that would have required 26 states to reduce emissions of sulfur dioxide and nitrogen oxide from powerplants. The court indicated that it would hear legal challenges to the rule, promulgated in July 2011, by April 2012. EPA had estimated that the rule would save between 13,000 and 34,000 lives annually by 2014.

Chinese environmentalists have been stunned by a decision by the country’s State Council to reduce the size of a Yangtze River nature preserve in order to allow the $3.8 billion Xiaonanhai Dam project to be built. The project had been suspended in 2009 after objections from environmentalists. A special panel of 15 certified experts and 15 representatives of government agencies was assembled to review the project, but before they could receive input from environmental groups, they were recorded as unanimously approving the project. The dam is expected to wipe out many rare aquatic species. Michael Wines, China Proceeds on Plan for Disputed Yangtze Dam, N.Y. Times, Dec. 30, 2011, at A8.

China’s steel industry, which accounts for 40% of global steel production, has refused to join the World Steel Association’s global initiative to reduce emissions of GHGs from steel plants, imperiling the project. The decision is not viewed as surprising because the Chinese cement and aluminum industries also have refused to join similar global initiatives, perhaps due to fears of disclosing technical information about their production processes to foreign competitors. Peter Marsh, Financial Times, Dec. 30, 2011, at 2.

Cuba Trip, End of Durban COP-17, EU Airline Cap & Trade Upheld, Incandescent Bulb Phaseout Delayed, EPA Mercury Rule (by Bob Percival)

2011-12-25T20:00:00.000-08:00

I am back in D.C. after ten days in Cuba on a people-to-people exchange trip sponsored by the National Geographic Society. As anticipated, very limited internet access there precluded me from posting a blog entry a week ago. The trip was an amazing journey. A 40-minute flight from Miami seemed to transport us back more than 50 years in time to a land with little modern transportation or communication technology and a place where the Cold War still rages. Imagine a country with few cellphones, no private internet access, and where the only advertising is propaganda extolling the virtues of the socialist revolution more than half a century ago.

On our first full day in Havana we met with historic preservationist Miguel Coyula, who discussed the efforts being made to restore Havana’s spectacular colonial architecture. We then spent the day exploring old Havana. The next day we met with a group of Cuban officials, including Elpidio Pérez Suárez, a justice of Cuba’s Supreme Court, at the National Union of Jurists to discuss Cuba’s legal system. We then visited Finca Vigia, Ernest Hemingway’s home, which is located a short distance east of Havana. On our third full day in Cuba we traveled west of Havana to visit the famous Robaino tobacco farm near Pinar Del Rio and we stayed overnight in the picturesque Viñales Valley that features beautiful karst scenery. We later visited the Las Terrazes Bio-Park and a school that incorporates ecological education in all of its classes. We then shifted our base of operations to Cienfuegos from where we visited historic old Trinidad, a World Heritage site, and the Playa Giron where the ill-fated Bay of Pigs invasion took place in April 1961. We then returned to Havana where we met the famous Cuban artist José Fuster and toured the Cementerio Colon, an historic old cemetary. On our last full day in Cuba my wife and I split away from the group to attend a baseball game in Havana between Metropolitana and Granma. We were struck by the quality of play -- close to major league caliber -- as well as the absence of commercialism in the stadium (the only billboard display was a sign announcing in Spanish that “Sport is the right of the people”), and the passion of the fans.

We were blessed with wonderful guides - Christopher Baker (http://www.christopherbaker.com/) who has authored several books about Cuba, including the wonderful “Mi Moto Fidel” about his motorcycle trip around the island, and Neyla Carpio, who works for the Cuban government and passionately disagreed with Baker’s criticisms of the ruling regime. One could not but be struck by the irony of people being transported on ox carts next to billboards extolling the virtues of the socialist system. Due to the U.S. embargo all that we brought back were CDs of Cuban music, but we still were pulled aside by U.S. Customs in Miami for an extra x-ray of our luggage. When I tried to check my Charles Schwab account via the internet from Havana, I received a message stating that access was denied because I was using a computer located in a “dangerous area” of the world. Upon returning to the U.S. I discovered that Schwab had frozen my account because of this (I subsequently was able to get it unfrozen with a phone call explaining the circumstances).

Cuba’s economy collapsed after the fall of the Soviet Union, a time now called the “special period” by the Cuban government. Cuba’s energy infrastructure now relies heavily on discounted oil from Venezuela traded in return for Cuban medical services. Cuba has greatly reduced power blackouts by decentralizing its electrical grid, reportedly in response to some of Amory Lovins’ work. Oliver Houck’s article “Environmental Law in Cuba,” 16 J. Land Use & Envt’l Law 1 (2000) is still the definitive work on environmental law in Cuba. Cuba has some wonderful protected areas, but it undoubtedly will face considerable environmental challenges as its development accelerates in response to greater economic openness. Once the country opens up and U.S. sanctions are lifted, the Cuba that I saw is likely to be radically transformed. The Cuban people express great warmth toward Americans, though not always toward the U.S. or Cuban governments. They seem particularly passionate about Cuban music, the beauty of their country, dogs, baseball, and ice cream. There were so many amazing things to photograph in Cuba that I took more photos than ever. I have edited and labeled the best and posted them online along with some brief video clips at: http://gallery.me.com/rperci#100882. A 16-minute video slideshow of the trip that I prepared is available online at: http://gallery.me.com/rperci#100897.

While I was in Cuba the Durban COP-17 conference went into overtime before concluding with a face-saving “agreement to agree” in the future on binding measures to control emissions of greenhouse gases. Opinion is divided about the significance of this agreement with the commentaries reflecting a kind of “glass half full/glass half empty” quality. To me it seems to represent a further confirmation of the diminishing importance of top-down approaches to international environmental law, in line with my theory about how global environmental law is now developing more from the bottom up. The most shameful performance at the Durban COP was that of the Canadian delegation, which during the conference denied persistent rumors that Canada planned to withdraw from the Kyoto Protocol only to confirm them shortly after the conference ended.

A further illustration of this trend is the European Union’s application of cap and trade regulations to control greenhouse gas emissions to all airlines who fly to and from the EU. On December 21 the European Court of Justice rejected legal challenges to the regulations that had been brought by foreign airlines. Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, Case C-366/10. The Court found that the regulations did not violate principles of customary international law including sovereignty of states over their airspace and freedom to fly over the high seas. The Court also found that the regulations were not precluded by the Chicago Convention on International Civil Aviation and that they did not violate the “Open Skies” Air Transport agreement between the United States and the European Union. The decision was not unexpected and U.S. airlines indicated that they would comply with it while still vowing to persuade the EU to rescind the rules, which will take effect on January 1, 2012. A press release in English from the Court describing the decision is available online at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110139en.pdf A copy of the Court’s judgment is available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=117193&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=162625. Now that the EU can require U.S. airlines to reduce their greenhouse gas emissions on their flights to and from Europe, an appropriate U.S. response would be for us to do the same for flights by EU airlines to and from the U.S. But that may be difficult to do in the absence of a U.S. cap-and-trade system.

While I was in Cuba the U.S. Congress resolved a budget battle by agreeing to appropriations legislation that included a provision to block for nine months (until Sept. 30, 2012) the expenditure of funds to enforce tighter energy efficiency standards that would start to phase out incandescent light bulbs in the U.S. The tighter energy efficiency standards had been adopted by Congress with overwhelming bipartisan support in the 2007 Energy Independence and Security Act. Now it has become an article of faith among some on the right that they represent a severe interference with individual freedom. Canada also has postponed for two years to January 1, 2014, a ban on importation of inefficient incandescent light bulbs, which actually waste the vast majority of their energy by generating heat rather than light. The move to postpone the energy efficiency standards likely will harm U.S. suppliers of more efficient light bulbs who took the regulations seriously while providing temporary windfalls to foreign companies.

Last week the U.S. Environmental Protection Agency (EPA) released long-awaited regulations to require U.S. power plants to reduce their emissions of mercury and other air toxics. EPA estimates that the new regulations will prevent as many as 11,000 premature deaths and 4,700 heart attacks annually while preventing 130,000 cases of childhood asthma symptoms and 6,300 cases of acute bronchitis among children each year. Predictably the regulations were denounced by the editors of the Wall Street Journal, Lisa Jackson’s Power Play, Wall St. J., Dec. 22, 2011, who previously had argued that the regulations could may the lights go out. “If the Lights Go Out,” Wall St. J., Dec. 6, 2011. Their argument was complicated by letters to the editor from the CEOs of two large electric utilities who claim that the utility industry is “well-positioned to comply with these rules” and that the “rules should not be controversial” because “[n]o one disputes that mercury is harmful to human health or that the technology is available now to reduce mercury emissions dramatically.” “Utilities Have Planned for Years for the ‘New’ EPA Rule, Wall St. J., Dec. 10-11, 2011, at A14 (letters to the editor from Jack Fusco, CEO and President of Calpine Corp. and Ralph Izzo, Chairman, CEO and President of PSEG). The Journal editors responded to these letters by denouncing the utility executives as having a vested interest in profiting from higher electricity prices.

Next week I will review the top ten global environmental law developments of the year. Merry Christmas.

Cuba Trip, Durban COP, Beijing Air Pollution, U.S. Battery Recycling in Mexico, Laos Dam, Fracking Study & Call for Papers (by Bob Percival)

2011-12-09T19:17:00.000-08:00

I am publishing this blog entry a little early this week because tomorrow morning I will be flying to Havana for a 10-day people-to-people visit arranged by the National Geographic Society. Because I am uncertain about the state of internet access in Cuba, I do not know if I will be able to post more blog entries until after I return to the U.S. on December 19.

Final negotiations are underway in Durban at the conference of the parties (COP-17) to the UN Framework Convention on Climate Change. On December 8 a courageous 21-year old college student from Middlebury College, Abigail Borah, interrupted a speech by Todd Stern, the chief U.S. climate negotiator, by saying: “I am speaking on behalf of the United States of America because my negotiators cannot. The obstructionist Congress has shackled justice and delayed action for far too long. I am scared for my future. 2020 is too long to wait. We need an urgent path to a fair, ambitious and legally binding treaty.” Ms. Borah’s interruption was greeted with applause even though she was ejected from the meeting hall. Stern later called a press conference where he described Ms. Borah as a “very sincere and passionate young woman.” He then suggested that the U.S. might indeed go along with an EU proposal to launch a process designed to reach a new climate agreement in 2015, which would become effective in 2020, rather than waiting until 2020 to negotiate such a treaty. The Global Carbon Project reported on December 4 that global emissions of carbon dioxide rose by a half billion tons in 2010, a 5.9% increase that likely was the largest jump in any year since the dawn of the Industrial Revolution.

This was a tough week for breathing in Beijing as a brown haze encircled the city and levels of particulates skyrocketed to extremely hazardous levels. The pollution was so bad that 700 outgoing flights were canceled over a two-day period and roads were shut down due to poor visibility. Environmental activists pushed the Chinese government to be more forthcoming in releasing air pollution data to the public. On December 6 the China Daily reported that air pollution is causing severe health problems, noting that lung cancer in Beijing has increased by 60% in the last decade even though the rate of smoking was unchanged. Edward Wong, Outrage Grows Over Air Pollution and China’s Response, N.Y. Times, Dec. 7, 2011, at A15.

On December 9 the New York Times published a shocking expose showing that major U.S. battery-manufacturing companies have shipped huge quantities of used batteries to recyclers in Mexico where the lead is recycled with virtually no environmental controls. Last year U.S.-based Johnson Controls shipped 160,000 metric tons of batteries to Mexican recyclers. The percentage of used batteries in the U.S. that are exported to Mexico has jumped from 6% in 2007 to 20% in 2010. The exports are harming domestic battery recyclers who must comply with much tougher environmental regulations. Mexican children living near the recycling operations are suspected of having lead poisoning, but virtually no funds are available to test them. Elisabeth Rosenthal, Used Batteries from U.S. Expose Mexicans to Risk, N.Y. Times, Dec. 9, 2011, at A1.

A plan to build the $3.5 billion Xayaburi dam on the Mekong River in Laos was deferred this week by a vote of the Mekong River Commission, whose members include Cambodia, Laos, Thailand, and Vietnam. This is the second time this year that the project has been deferred pending further study of its environmental impacts. James Hookway, Environmental Concerns Delay Mekong Dam Project, Wall St. J., Dec. 9, 2011, at A11.

After three years of study, the U.S. Environmental Protection Agency (EPA) released a draft report on December 8 that links hydraulic fracturing for natural gas in Wyoming’s Pavillion field to contamination of drinking water wells in the vicinity. Companies using fracking to extract natural gas have long insisted that there is no proof that it has contaminated drinking water supplies. EPA discovered levels of various chemicals associated with fracking well above standards set by the federal Safe Drinking Water Act (SDWA) in groundwater monitoring wells near fracking sites. The Kirk Johnson, EPA Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 9, 2011, at A19. However, due to an amendment to energy legislation promoted by Vice President Dick Cheney in 2005, fracking has been exempted from the SDWA. The EPA study, which now will be subject to public comment and peer review, was undertaken in response to complaints from local residents about the smell and taste of their drinking water. The wells drilled in the Pavillion field were shallower than those used in fracking operations in other parts of the country.

This week the IUCN Academy of Environmental Law released a “Call for Paper/Presentation Abstracts” for the 10th Colloquium that will be held at the University of Maryland Francis King Carey School of Law from July 1-5, 2012. The Colloquium organizers welcome abstracts for papers and/or presentations on a broad array of topics. These include: approaches for improving global environmental law and governance, how to overcome political resistance to sustainable development policies, new strategies for promoting environmental justice and using law to advance sustainability, where are we after Rio+20 and where we should be going from here. Papers may focus on strategies for addressing specific environmental problems, new developments in national and regional environmental law, and the interaction of international and domestic law and policy. A copy of the call for papers is available online at: http://digitalcommons.law.umaryland.edu/gelc/ A “Call for Films” for the same Colloquium, which will host a festival of short environmental films, will be issued soon.

Gloom in Durban, Bali Montreal Protocol COP, Fracking Contracts, Supreme Court RCRA Case, Lovins Workshop (by Bob Percival)

2011-12-05T10:09:00.001-08:00

After a week of meetings in Durban, South Africa, the Conference of the Parties to the UN Framework Convention on Climate Change (COP-17) remains sharply divided on most major issues, including how to fund the Green Climate Fund to provide financial assistance to developing countries and whether a global post-Kyoto treaty should be adopted. Some critics have begun to refer to the COP as the “Conference of Polluters”. There were a few positive developments with the Chinese delegation for the first time indicating that it eventually might support global limits on greenhouse gas emissions in a treaty to be negotiated by 2020. The International Chamber for Shipping, representing 80% of the world’s merchant marine, joined Oxfam and WWF to support a carbon tax on emissions from ships. COP-17 is scheduled to conclude on Friday and, as usually happens, it is likely that the most significant developments will occur in the waning hours of the meetings.

In a belated bit of news, the Bali meeting of the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer on November 21-25 failed to adopt a proposal backed by the U.S. for a 30-year phaseout of hydrofluorocarbons that are potent greenhouse gases. India, China and Brazil led opposition to the proposal, which had been supported by a significant majority of the participating parties. It is now widely appreciated that the Montreal Protocol, while directed to protecting the ozone layer, also has reduced greenhouse gas emissions by even more than the reductions required by the Kyoto Protocol.

Last week the New York Times ran a major story reporting that many owners of properties that have been leased for hydraulic fracturing (“fracking”) to extract natural gas have misunderstood the contractual terms of the leases. Ian Urbina & Jo Craven McGinty, Learning Too Late of Perils in Gas Well Leases, N.Y. Times, Dec. 2, 2011, at A1. The companies generally do not describe the environmental risks to the property owners and most of the contracts do not require the companies to provide compensation for environmental damage. At least two-thirds of the leases allow the companies unilaterally to extend the lease term. This article could provide terrific material for law students to study in a first-year Contracts course.

The U.S.-based battery maker Johnson Controls reported last week that its Shanghai factory has been cleared to resume production after a temporary shutdown to investigate lead pollution near the plant. James T. Areddy, Battery Maker Is Cleared in Shanghai Lead Probe, Wall St. J., Dec. 1, 2011, at B4. As reported in this blog on September 18, 2011, the plant had been shut down by Chinese authorities after the discovery of severe lead poisoning in children living nearby.

On November 28 the U.S. Supreme Court announced that it had agreed to review a case challenging the amount of a fine imposed on a corporation for illegally storing hazardous mercury waste in violation of the Resource Conservation and Recovery Act (RCRA). The Court’s motivation for taking the case over the opposition of the federal government may be a desire to clarify the limits of its 2005 opinion in Apprendi v. United States holding that enhanced sentences could not be imposed based on certain factual findings not proven before a jury. In the case before the Court -- Southern Union Co. v. United States, No. 11-94 -- the company claims that it should have been fined only $50,000 for a single incident of illegally storing waste, rather than the $18 million penalty imposed based on daily penalties for more than 2 years of illegal storage.

I have spent the last few days in one of the most beautiful parts of the world at a wonderful workshop on “The Tao of Global and Personal Ecology” with Amory Lovins and Chungliang Huang. The workshop was held at California’s Esalen Institute, which is located atop cliffs overlooking the Pacific Ocean near Big Sur. Lovins discussed his Rocky Mountain Institute’s new book “Reinventing Fire: Bold Business Solutions for the New Energy Era” which outlines a program for greening the four energy-intensive sectors of the economy: transportation, buildings, industry and electricity. See http://rmi.org/ReinventingFire. I was impressed with Lovins’s relentless optimism (“I don’t do problems, I only do solutions”) and his emphasis that the transition to a green economy could be accomplished not by emphasizing government intervention, but rather by convincing business leaders that it would be profitable. Lovins has been advising business leaders and the U.S. military on how to transform their use of energy. He and Chungliang Huang have been doing work in China where Lovins’s book “Natural Capitalism” was embraced by the Chinese leadership in part because of the many positive ways the title’s Chinese translation resonated with them. By contrast, I have long been told that the title of Al Gore’s “An Inconvenient Truth” did not translate well into Chinese, making it far less popular there.

COP-17 OPENS IN DURBAN, CLIMATE FUND DISPUTE, CARBON PRICES AT RECORD LOWS, BRAZIL SUSPENDS CHEVRON DRILLING (BY BOB PERCIVAL)

2011-11-27T18:29:00.001-08:00

On Monday November 28 the 17th Conference of the Parties (COP-17) to the UN Framework Convention on Climate Change also meeting as the 7th Meeting of the Parties to the Kyoto Protocol convenes in Durban, South Africa. Even though developed countries’s Kyoto Protocol commitments to reduce emissions of greenhouse gases (GHGs) during the 2008-2012 period will expire next year, there seems to be little prospect of a new global agreement to succeed Kyoto. In an apparent effort to undermine the conference, thousands of more stolen emails from the Climate Research Unit of the University of East Anglia again have been posted anonymously on the internet, this time on a Russian server. They are from the same time period as the emails posted two years ago and they do not appear to contain any significant new revelations. Investigations spawned by the first incident led to the climate scientists whose emails had been purloined being cleared of any wrongdoing, but they gave some politicians a convenient excuse to retract their support for policies to control GHG emissions.

In pre-COP negotiations, the U.S. reportedly refused to agree to a new blueprint for the Green Climate Fund to provide financial assistance to developing countries for the transition to low-carbon economies. The fund, created in 2009 at COP-15 in Copenhagen, was supposed to provide $100 billion in annual assistance by the year 2020. Pilita Clark & Javier Blas, US Blocks Key Fund in Climate Agreement, Financial Times, Nov. 25, 2011, at 1. This will be a major issue to be subject to further negotiations at the Durban COP.

Last week the prices of carbon allowances fell to record lows. The price of UN-backed certificates of emission reductions (CERs) fell to €5.90 (approximately $7.85). This represents a decline in price of more than 50 percent since last June. On November 24 the price of EU cap-and-trade allowances hit a record low of €7.80 (approximately $10.35) per ton, a 15 percent decline in one week. Javier Blas, Carbon Prices Tumble to Record Low, Financial Times, Nov. 25, 2011, at 22. The decline may be due in part to fears of a European economic collapse if the current financial problems of countries in the Eurozone are not adequately resolved.

Last week the government of Brazil imposed a moratorium on offshore drilling by Chevron while it investigates the causes of a 3,000-barrel oil spill that occurred earlier this month at Chevron’s Frade project. On November 21 IBAMA, the Instituto Brasileiro do Meio Ambiente E Dos Recursos Naturais Renováveis (Brazilian Institute of Environment and Renewable Natural Resources), the Brazilian government agency responsible for regulating Chevron’s activities, fined the company ₨50 million (approximately $28 million), and it indicated that additional fines of up to ₨40 million could be imposed. The chief executive of Chevron’s Brazilian unit, George Buck, apologized for the spill during a hearing before Brazil’s Congress on November 23.

O'Malley Attacks Clinic, Apple Audits China Suppliers, Chevron Brazil Spill, IPCC on Severe Weather, Renewable Energy, ABA Panel (by Bob Percival)

2011-11-20T19:54:00.000-08:00

On November 16 Maryland Governor Martin O’Malley released a shocking letter denouncing a lawsuit filed last year by Maryland’s Environmental Law Clinic to stop poultry waste pollution of the Chesapeake Bay. The Governor’s letter claims that the lawsuit perpetuates an “ongoing injustice.” Despite the fact that the Clinic has won every motion in the case, he characterizes the lawsuit as of “questionable merit” and suggests that the clinic actually should be representing the defendants. A copy of the Governor’s letter is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). The governor’s action revives an attack on the clinic that was soundly beaten back in spring 2010 when the national legal community denounced an effort by Eastern shore legislators to cut the relatively minimal funding the law school receives from the state in an effort to force the clinic to drop its ground-breaking lawsuit against corporate agribusiness for polluting the Bay. On November 17 Maryland law dean Phoebe Haddon responded to the Governor with a letter defending the law clinic. She noted that there were “good grounds for the lawsuit, which seeks to protect the Chesapeake Bay for all Marylanders,” and she cited “inaccuracies” in the governor’s letter. A copy of Dean Haddon’s response is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). In an editorial the Baltimore Sun denounced the governor’s letter as “odious” and “shocking,” an attempt “to bully” our environmental law clinic, and “to interfere with ongoing civil litigation” by taking “the side of polluters against those who are simply trying to enforce federal law.” A link to the Baltimore Sun editorial criticizing the Governor’s letter is HERE.

Last week it was revealed that Apple Corporation has hired an outside firm to audit environmental compliance by companies in its supply chain in China. On November 15 Apple representatives met in Beijing with a coalition of environmental groups who released reports in January and August 2011 criticizing environmental compliance by Apple’s Chinese suppliers. See blog post of September 5, 2011. Ma Jun, director of the Institute of Public and Environmental Affairs, which had released the previous reports, described Apple’s actions as “progress,” but “just the beginning.” Kathrin Hills & Joseph Menn, Apple Launches Audit of Chinese Suppliers, Financial Times, Nov. 17, 2011.

On November 15 the Chevron Corporation announced that it had contained the flow of oil leaking from the ocean floor where it had drilled a deep water appraisal well at its Frade project off the coast of Brazil 230 miles northeast of Rio de Janeiro. Brazil’s federal police have opened an investigation of Chevron in connection with the spill. Brazilian authorities are expressing increasing annoyance at what they characterize as Chevron’s lack of transparency concerning the oil spill. They have threatened Chevron executives with criminal prosecution if it is determined that they intentionally misled Brazilian authorities and they are insisting that Chevron pay compensation for natural resource damages. Simon Romero, Brazilian Officials Warn Chevron Over Offshore Spill, N.Y. Times, Nov. 19, 2011, at A8.

On November 18 the Intergovernmental Panel on Climate Change (IPCC) reported that some severe weather events already can be attributed to ongoing climate change. Ongoing weather anomalies include the worst drought in the Horn of Africa in 60 years, heavy snow in the United States, and severe flooding in Thailand. However, the IPCC agreed that it was premature to attribute more intense hurricanes to climate change. It predicted that extreme weather events will occur more frequently and with greater intensity even as human vulnerability to them will grow in the future. Justin Gillis, Panel Finds Climate Change Behind Some Extreme Weather, N.Y. Times, Nov. 19, 2011.

Last week a spate of investments were announced in large renewable energy projects around the world. On November 17 the World Bank announced that it would help fund a massive solar energy project to be built in Morroco’s desert. The Ouarzazate solar complex, which will be built southeast of Marrakesh, will have a capacity of 500 megawatts, enough to power 90,000 homes. Morocco plans to build five large solar energy complexes by 2020 with a total capacity of 2,000MW. Pilita Clark, Morocco Wins Green Light for Solar Plant, Financial Times, Nov. 18, 2011, at 6. General Electric agreed last week to help build a $100 million wind energy farm in Mongolia. The project is expected to meet 5% of Mongolia’s energy needs when it is completed in the second half of 2012. Kathrin Hills, GE Signs $100 Million Mongolia Wind Deal, Financial Times, Nov. 18, 2011, at 17. Fourteen foreign energy companies have asked the Spanish government for more than 100 million Euros in compensation for Spanish government’s March 2011 reductions in subsidies for solar energy. The compensation is being sought under the 1998 Energy Charter Treaty. Miles Johnson, Investors Seek Compensation for Cuts to Spain’s Solar Subsidy, Nov. 18, 2011, at 17.

This has been a busy week for me. On Tuesday I presented a paper “On Coal, Climate and Carp: Reconsidering the Common Law of Interstate Nuisance” at a Faculty Research Workshop at Georgetown. The paper focuses on three recent decisions involving efforts by states to use federal or state common law to control transboundary pollution, including North Carolina’s effort to control pollution from TVA’s coal-fired power plants, the American Electric Power climate change litigation, and efforts by Great Lake states to stop the spread of invasive species. The paper argues that the common law remains an important backstop to prod regulatory action to redress environmental problems that are newly emerging or long-neglected by regulators.

On November 17 I spoke on a panel on presidential review of rulemaking at the fall meeting of the American Bar Association’s Section on Administrative Law and Regulatory Pracrice. On the panel with me were former Bush White House Counsel and former Ambassador to the EU (recess appoinment) C. Boyden Gray, current OMB general counsel Boris Bershteyn, Brian Callanan from the office of Senator Rob Portman, and Alan Raul from Sidley & Austin. Boyden Gray took issue with my opening statement when I noted that if President Reagan had had directive authority over agencies, EPA would have been forced to abolish all limits on lead in gasoline. The White House had forced EPA to propose such a disastrous policy, but they ultimately backed down in the face of environmental opposition. Bershteyn had the best line of the day when he said that he was glad that OMB was being criticized for events that occurred during the Reagan administration. However, it was quite telling that Callanan argued that by vetoing the ozone rule, President Obama had conceded that a super cost-benefit mandate, which is not in the current Clean Air Act, should be adopted by enactment of Senator Portman’s proposed Regulatory Accountability Act (RAA). I argued that the RAA would paralyze efforts to protect public health and the environment by codifying the Toxic Substance Control Act’s “least cost” mandate that prevented the U.S. from banning asbestos, a substance that has now been banned by virtually all other developed countries.

On November 18 I attended a conference on regulatory takings at Georgetown cosponsored by Vermont Law School and the Georgetown University Law Center. Tom Merrill gave a great presentation on the way courts are interpreting the Supreme Court’s 1978 Penn Central decision. Gregory Stein from the University of Tennessee explained why the Supreme Court’s Palazzolo decision has not had much impact on takings decisions. Georgetown Dean Michael Treanor, whose student note in the Yale Law Journal has become a classic on the history of the takings clause, gave the keynote address explaining why the original understanding of the clause only required compensation for physical takings of property.

On Friday night November 18 Maryland’s Environmental Law Program held its 20th annual program winetasting party. Nearly 200 students, faculty, and alums attended the event which featured a vertical tasting of the wines of Chateau Pichon Lalande, some celebrated California cabernets from the 1970s, and the certifiably perfect 1982 Chateau Mouton Rothschild. This year’s “mystery wine,” tasted blind, was a pinotage from South Africa. None of the participants in the contest identified it correctly, but Delegate Jon Cardin did get the vintage (2009) correct. The event confirmed once again that wine truly is “nature’s thanks for preserving the earth.”

Keystone XL Decision Delayed, China Air Pollution Monitoring, EU to Pass U.S. as Oil Importer, Australian Carbon Tax (by Bob Percival)

2011-11-15T18:28:00.000-08:00

On November 10 the Obama administration announced that it would delay a decision on whether or not to approve TransCanada’s Keystone XL pipeline project to transport heavy tar sands oil to the U.S. The delay will give the administration time to consider routes that skirt around the important Ogalala aquifer in Nebraska. It also should postpone the decision until after the 2012 presidential election, extricating President Obama from a “no-win” situation. Christi Parsons & Paul Richter, Decision on Pipeline Put Off Until 2013, Los Angeles Times, Nov. 11, 2011, at A10.

The latest chapter in the long-running controversy over the accuracy of air pollution monitoring in China occurred last week when Chinese authorities announced that 40 lucky people per week would be allowed to tour Beijing’s air quality monitoring center. Air pollution in Beijing has been particularly nasty this fall and the U.S. Embassy’s online air quality monitoring, made available online through an iPhone app and Twitter, reportedly has been embarrassing Chinese authorities. Last year a Wikileaks cable revealed that the Chinese government had privately asked the U.S. Embassy to stop posting its monitoring data online. Pan Shiyi, a Chinese real estate developer with 7 million followers of his blog, asked the Chinese public to vote on whether more stringent air pollution standards should be adopted. More than 30,000 of the 40,000 respondents voted “Yes”. Andrew Jacobs, Beijing Acts to Calm Anger Over Reporting of Air Pollution, N.Y. Times, Nov. 9, 2011.

Last week the International Energy Agency (IEA) released its annual report. It reported that global carbon dioxide emissions grew in 2010 at the “almost unprecedented” rate of 5.3% to 30.4 billion metric tons. James Herron, Energy Agency Warns Government to Take Action Against Global Warming, Wall St. J., Nov. 9, 2011. The IEA also forecast that in 2015 the EU will surpass the U.S. as the world’s largest importer of oil. This somewhat surprising prediction is a result of the dramatic increase in U.S. fuel economy standards and increased U.S. natural gas and oil production. The report also forecast that by 2020 China would overtake the EU as the world’s largest importer of oil. Global demand for oil is expected to grow from last year’s 87 million barrels a day to 99 million barrels per day by 2035. The IEA concluded that every additional $1 invested in fossil fuel production will cause $4.30 in environmental damage after 2020. Julia Werdigier, Europe’s Oil Imports Poised to Pass Level of U.S., N.Y. Times, Nov. 9, 2011.

On November 7 the Australian Parliament gave final approval to a carbon tax. Beginning in July 2012 the top 500 emitters of greenhouse gases will be required to pay a tax of approximately $24 for each ton of carbon they emit. Beginning in July 2015 an emissions trading program will be launched. The decision represents a huge victory for Australian Prime Minister Julia Gillard as well as a dramatic turnabout for a country that until late 2008 had been the only developed country other than the U.S. that had failed to ratify the Kyoto Protocol.

On November 9 the U.S. Department of Commerce opened an investigation of charges that China is unfairly dumping below cost solar panels on the market. A new trade group representing buyers and installers of solar panels was established this week to press the argument that any trade sanctions imposed on Chinese solar manufacturers will cost U.S. jobs. Due largely to increased Chinese exports, prices of solar panels have plunged from $3.30 per watt in 2008 to only $1 to $1.20 per watt today.

On Friday Nov. 11 I spoke at a conference on “CERCLA and the Future of Liability-Based Environmental Regulation” at Southwestern University Law School in Los Angeles. Professor Percival compared CERCLA with other countries’ programs for remediation of environmental contamination. The conference was terrific. It featured lots of veterans from the early history of CERCLA and the war stories we shared were absolutely fascinating. Southwestern has what Dean Bryant Garth accurately described as the best building of any law school - a 1929 art Deco former Bullocks department store on Wilshire Boulevard. I joined several of the speakers on a fabulous tour of the building that emphasized how the school has gone to great links to preserve its historic builgin. I spent Saturday in a cold and rainy Vancouver, Canada, before returning to D.C. on Sunday.

China Bans Incandescents, EU Airline Carbon Trading Attacked, Oral Argument Set in Challenges to EPA Climate Regulations (by Bob Percival)

2011-11-05T21:30:00.000-07:00

Last week China announced that it will ban the import and sale of 100-watt and higher incandescent light bulbs beginning on October 1, 2012. The ban will be extended to 60-watt bulbs on October 1, 2014 and to 15-watt and higher bulbs on October 1, 2016. With this move China joins the EU and the United States in phasing out these notoriously inefficient light bulbs that waste most of their energy giving off heat rather than light.

The U.S. Food and Drug Administration (FDA) has asked Chinese authorities for help in implementing the Food Safety Modernization Act. The law, which was enacted in January 2011, requires U.S. importers of food to verify through their suppliers the safety of their imports. The FDA is seeking greater information sharing with China and other countries that export food to the U.S. The U.S. actually exports more agricultural products to China than China exports to the U.S., but enforcement of Chinese food safety laws has been notoriously weak, as Li Tairan, director of food safety at China’s Ministry of Health confirmed at a food safety conference on November 2. Laurie Burkitt, FDA Seeks Beijing’s Help Over Food Safety, Wall St. J., Nov. 4, 2011, at A8.

Last week the governing council of the UN’s International Civil Aviation Organization (ICAO) urged the European Union to drop its plan to include airlines flying to or from EU countries in its cap-and-trade program for carbon emissions. A total of 26 countries, including the U.S., China, Russia, and India had lobbied for the declaration, which argues that the ICAO is the best forum for resolving such issues. EU Climate Commissioner Connie Hedegaard criticized these countries for focusing solely on what not to do to reduce GHG emissions from the airline sector. The EU regulations will go into effect on January 1, 2013. Meanwhile the U.S. House of Representatives’ vote to prohibit U.S. airlines from participating in the EU’s cap-and-trade program has received a lot of attention, but for now it stands virtually no chance of being adopted by the full Congress. A report issued by Bloomberg News Energy Finance estimates that the cost to the airlines of participating in the EU program would be less than one-quarter of one percent of revenue from the routes subject to it in 2012 and about one-half of one percent in 2020. Pilita Clark, Nations Step Up Fight Over Air Carbon Permits, Financial Times, Oct. 30, 2011.

On Nov. 2 the U.S. Court of Appeals for the D.C. Circuit announced that it will hear two days of oral argument on February 28 & 29, 2012 on the consolidated legal challenges to EPA’s regulations governing greenhouse gas (GHG) emissions. The panel hearing the case will be Judges Sentelle, Rogers, and Tatel. Judge Sentelle is a severe critic of environmental regulation, but Judges Rogers and Tatel are much more supportive. On November 3, I participated in a dinner of “Distinguished Environmental Advocates” at Bistro Bis in Washington, D.C. The dinner was sponsored by ABA’s Section on Environment, Energy & Resources and the Environmental Law Institute. George Frampton addressed the group and argued that the Fukushima Daiichi accident would not have a gret impact on the demand for nuclear power because the Chinese and Russian governments still are committed to building new nuclear power plants. I expressed disagreement with this view, noting that public opinion in Japan, Germany and China is now distinctly anti-nuclear due to the accident. At the dinner I asked several of the major figures in the environmental bar for their predictions concerning the fate of the legal challenges to EPA’s regulation of GHG emissions. Virtually everyone agreed that EPA’s endangerment finding would be upheld aby the D.C> Circuit. Many thought EPA would beat back all of the legal challenges to its regulation of GHG emissions. Surprinsgly, this group even included some prominent industry lawyers. However, a few others, including a prominent supporter of EPA, believed that EPA’s tailoring rule would be struck down.

I visited Goucher College on November 1 to give a lecture on the Law of the Sea to an environmental studies class. It is really heartening to see how many colleges and universities are expanding their environmental offerings at the undergraduate level.

9th Circuit Rejects Kiobel, Setback for Cape Wind, Nebraska Special Session on Pipeline, Brazil Dam Protest, "Hot Spots" in Japan (by Bob Percival)

2011-10-30T20:21:00.000-07:00

Last week seven of eleven judges from the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, joined the Seventh and D.C. Circuits in rejecting the Second Circuit’s Kiobel decision holding that corporations cannot be held liable for violating the law of nations, the predicate for liability under the Alien Tort Statute. A copy of the court’s decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf As discussed in the October 23, 2011 blog post, the U.S. Supreme Court has agreed to review the Kiobel decision and likely will decide the case by the end of June 2012. The Ninth Circuit’s decision in Sarei v. Rio Tinto, revives a lawsuit filed by citizens of Papua, New Guinea, alleging that the Rio Tinto mining corporation purposefully aided and abtetted the New Guinean government in committing genocide and crimes against humanity. The Ninth Circuit easily could have deferred issuing a decision until after the U.S. Supreme Court decides Kiobel, but the judges likely wanted to make the Court aware of their views before it decides Kiobel.

On October 28 the U.S. Court of Appeals for the D.C. Circuit ruled that the Federal Aviation Administration (FAA) had failed to adequately consider the impact on aircraft safety of the Cape Wind project, the first commercial-size offshore wind project in the U.S. Plaintiffs in the case included the Alliance to Protect Nantucket Sound and the City of Barnstable, Massachusetts. The decision is expected to delay the start of construction work on the project.

Republican Governor Dave Heineman has called Nebraska’s legislature back into special session, beginning on Tuesday, to consider legislation to block or to alter the route of the Keystone XL pipeline. The pipeline is designed to carry oil from Canada’s tar sands fields to the United States. Heineman has objected to the project out of fears that it may endangered the quality of groundwater in Nebraska’s Ogallala Aquifer.

Japanese authorities last week confirmed that they had discovered far-flung “hot spots” of radioactive fallout from the accident at the Fukushima Daiichi nuclear power plant. The “hot spots” were found in Kashiwa, 125 miles from the damaged reactor and just 18 miles northeast of Tokyo. Officials attribute the contamination to cesium-laced rain that fell in the area shortly after the accident. Yuka Hayashi, Tokyo Cite Rain for “Hot Spot,” Wall St. Journal, Oct. 25, 2011, at A15. Scientists now estimate that the amount of cesium-137 released in the Japanese accident was 42% of the amount released in Chernobyl in 1986 and that 79% of it drifted over the Pacific Ocean while 19% ended up on Japanese land and 2% in other countries. A. Stohl, et al., Xenon-133 and Caesium-137 Releases into the Atmosphere from the Fukushima Dai-ichi Nuclear Power Plant: Determination of the Source Term, Atmospheric Dispersion, and Deposition, 11 Atmos. Chem. Phy. Discussion 28319 (2011).

Last week presidential candidate Mitt Romney appeared to backtrack in his views on climate change. “My view is that we don’t know what’s causing climate change on this planet,” Romney said, contradicting his statement earlier this year that humans contribute to climate change. Romney stated that it was not wise to spend “trillions and trillions of dollars to try to reduce CO2 emissions,” despite his support as governor of Massachusetts for a nine-state cap-and-trade agreement. Jonathan Wisman, Romney Rivals See Flip-Flop, Wall St. Journal, Oct. 29-30, 2011, at A4.

U.S. Supreme Court to Hear ATS Case, Chinese Solar Subsidies Challenged, Bolivian Amazon Road Stopped, Pipeline Safety Bill Advances (by Bob Percival)

2011-10-23T21:33:00.001-07:00

On Monday October 17 the U.S. Supreme Court announced that it will review a decision holding that corporations cannot be held liable under the Alien Tort Statute (ATS) because the “law of nations” does not apply to their conduct. The decision the Court agreed to review is a September 2010 judgment by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 10-1491 (see blog post of Oct. 4, 2010). The decision was by a split (2-1) panel of the Second Circuit with Judge Cabranes writing the majority opinion and Judge Leval writing a vigorous dissent. Last summer two other U.S. Courts of Appeal expressly rejected the holding in Kiobel - the D.C. Circuit in a case involving Indonesians challenging alleged human rights abuses by ExxonMobil (see blog posts of July 11, 2011) and the Seventh Circuit in a lawsuit against Bridgestone Firestone Tire (see blog post of July 17, 2011). The split in the circuits virtually guaranteed that the Court would agree to hear the case. Although the issue is one of statutory interpretation - the meaning of the ATS’s authorization of suits challenging conduct in violation of the “law of nations” -- it essentially will require the Court to address the scope of international law. The case is likely to be argued next spring and decided by the end of June 2012.

On October 19 a coalition of seven American companies filed a complaint with the U.S. Department of Commerce and the International Trade Commission arguing that the Chinese government has unfairly subsidized Chinese companies making solar panels. The U.S. companies are asking for the agencies to impose tariffs of more than 100% on solar panels imported from China. Solar companies based in the U.S. have been laying off workers due to competition from Chinese producers who have driven down the price of such panels from $3.30 per watt in late 2008 to between $1.00 and $1.20 per watt today. China has sold more than $1.6 billion in solar panels to the U.S. in the first eight months of 2011. Environmentalists are concerned that the imposition of tariffs could cripple the diffusion of solar technology. The Chinese ministry of commerce described the complaint as creating “a lose-lose situation” that “will cause an adverse impact on the bilateral trade interests of the two counties.” Keith Bradsher, China Charges Protectionism in Call for Solar Panel Tariffs, N.Y. Times, Oct. 22, 2011, at B6.

Last week President Evo Morales of Bolivia responded to protests by indigenous groups by suddenly canceling the construction of a highway through an ecologically sensitive region of the Amazon. The decision was made after indigenous groups completed a two-month march over hundreds of miles to the capital of La Paz to demand that the project be halted. The highway was to be built by a Brazilian construction firm. The indigenous groups feared that its construction would facilitate the expansion of coca leaf farming into the Isiboro Secure National Park, spawning increased deforestation. John Lyons, Bolivian Chief Scraps Road, Wall St. Journal, Oct. 22-23, 2011, at A12.

On October 17 the U.S. Senate unanimously approved a bill updating pipeline safety regulations. A similar bill has been approved by a House committee and awaits a vote on the House floor. The legislation is a response to the September 9, 2010 pipeline explosion in San Bruno, California. It will require more testing of pipelines, increase the number of pipeline inspectors and increase fines for major violations of pipeline regulations to as much as $2.5 million. Ryan Tracy, Pipeline-Safety Measure Passes Senate Unanimously, Wall St. J, Oct. 18, 2011, at A6. In an effort to win approval of the Keystone XL pipeline, TransCanada Corporation agreed last week to post a $100 million bond to ensure that funds would be available to respond to future spills. The company also agreed to build a concrete containment ditch to surround the pipeline when it crosses through environmentally sensitive areas of Nebraska. These and other concessions are designed to prevent the Nebraska legislature from forcing significant changes in the pipeline’s proposed route.

Last week Andarko Petroleum agreed to pay BP $4 billion to cover its share of liability for the Deepwater Horizon oil spill. Andarko owned a 25% stake in the project. Andarko agreed to drop its claim of gross negligence against BP and to transfer its stake in the project back to the British company. The money will be placed in BP’s $20 billion compensation fund for victims of the spill. Last week BP received preliminary approval to drill its first new well in the Gulf since the April 2010 spill. U.S. regulators also announced last week that they will inspect the an offshore oil drilling rig built in China that Repsol YPF SA, a Spanish company, plans to deploy in Cuban waters near the coast of Florida. Russell Gold, U.S. Will Inspect Cuban Rig, Wall St. Journal, Oct. 17, 2011, at A3.

Last week I visited my alma mater Macalester College in St. Paul, Minnesota. On Thursday October 20 I had dinner with faculty from the school’s interdisciplinary Environmental Studies department. On October 21 I gave guest lectures to a seminar on Climate and Society taught by Professor Louisa Bradtmiller and to Professor Katie Pratt’s Environmental Politics and Policy class. I had a wonderful lunch with students interested in environmental law followed by individual meetings with the school’s Environmental Studies faculty and the co-directors of the school’s Legal Studies program. It is so encouraging to see how strong student interest in environmental law is at the undergraduate level.

Australian Carbon Tax, Ozone Lawsuit, Uganda Oil Scandal, 168th House Anti-Environment Vote, ABA SEER Conference (by Bob Percival)

2011-10-16T20:02:00.000-07:00

On October 12 the lower house of the Australian Parliament approved by a narrow 2-vote margin (74-72) a carbon tax to combat climate change. Approval of the tax, which is expected to become law after being approval by a larger margin in the upper house of Parliament, represents a significant victory for Prime Minister Julia Gallard’s Labor government. Under the legislation more than 400 of Australia’s largest emitters of greenhouse gases (GHGs) will pay a tax of A$23 ($23.80 US) per ton of GHG emissions beginning in July 2012. This is a particularly significant development for global environmental law because Australia was the last developed country to approve the Kyoto Protocol except for the U.S., which remains the sole holdout. Due to its economy’s heavy dependence of fossil fuel industries, Australia refused to ratify the Kyoto Protocol until 2008. Peter Smith & Pilita Clark, Gillard Scores Victory as MPs Support Carbon Tax, Financial Times, Oct. 12, 2011.

On October 11 five national environmental and health groups in the U.S. filed suit to challenge the national ambient air quality standard (NAAQS) for ozone initially promulgated by the Bush administration and reinstated by the Obama administration after it decided for now not to tighten the standard. The ozone NAAQS sets the permissible concentration of the pollutant at .075 parts per million, despite the unanimous recommendation by EPA’s Clean Air Scientific Advisory Committee that it be set between .060 and .070 ppm. John M. Broder, Groups Sue After EPA Fails to Shift Ozone Rules, N.Y. Times, Oct. 12, 2011.

Last week three officials of the government of Uganda resigned due to an investigation of alleged bribery by Tullow Oil, a British company seeking to develop the country’s estimated 2.5 billion barrel oil deposits that were discovered in 2006. The officials who resigned included foreign minister Sam Kutesa, the governing party’s parliamentary whip and a lower level labor minister. Tullow had previously caused controversy by proposing to drill for oil in protected areas of the country. The Ugandan Parliament voted to impose a temporary moratorium on new oil development projects while the bribery allegations, which Tullow vehemently denies, are investigated.

Congressman Henry Waxman revealed last week that the U.S. House of Representatives has voted 168 times this year against the environment, making it “the most anti-environmental Congress in history.” Fortunately the Democratic-controlled U.S. Senate has prevented the measures approved by the House, many of which would strip EPA of authority to prevent air or water pollution, from becoming law. On October 14 the House approved a measure to block EPA from regulating coal ash as a hazardous waste. The bill would leave the problem largely to state regulation. A total of 37 Democrats joined Republicans in supporting the bill, which was approved by a vote of 267 to 144.

After class on October 13 I flew to Indianapolis in order to attend the opening of the 19th Annual Fall Meeting of the American Bar Association’s Section on Environment, Energy & Resources. More than 300 people attended the event. I was the opening keynote speaker and I spoke about “The Global Transformation of Environmental Law.” An abstract of my remarks is available online at: http://www.law.umaryland.edu/about/features/documents/aba_keynote.pdf. After my presentation I attended a session on the impact of the Fukushima Daiichi nuclear accident on regulation of nuclear power and a session on the Supreme Court’s American Electric Power v. Connecticut decision before having to return to Washington.

As a member of Maryland’s law school appointments committee I spent October 14 and 15 interviewing faculty candidates at the annual American Association of Law Schools (AALS) Faculty Recruitment Conference in Washington, D.C. We interviewed more than 30 candidates over the two days, an exhausting process, but one that was not without its intellectual rewards. After we finished on Saturday I was able to attend the final half hour of an open house for my dear friend Zhang Jingjing, her husband, and new baby, at the home of her in-laws in Garrett Park, Maryland. Jingjing, who has been called “the Erin Brockovich of China,” is currently the Deputy Director of PILnet: Global Network for Public Interest Law in Beijing. Her daughter Meghan, whose Chinese name means “little flower” is truly adorable. Jingjing will be returning to China on October 25.

EU Airline Carbon Cap Supported, Chiu Symposium, Koh Lecture, Keystone XL EIS, Arctic Ozone Hole & China Course (by Bob Percival)

2011-10-11T14:51:00.001-07:00

On October 6 Juliane Kokott, the European Court of Justice Advocate General, advised the Court that it should reject a legal challenge by non-EU airlines to their upcoming inclusion in the EU’s cap-and-trade program for carbon emissions. Ms. Kokott opined that: "The inclusion in the EU emissions trading scheme of flights of all airlines from and to European airports is compatible with the principle of fair and equal opportunity laid down in the Open Skies Agreement. Indeed it is precisely that inclusion that establishes equality of opportunity in competition, as airlines holding the nationality of a third country would otherwise obtain an unjustified competitive advantage over their European competitors if the EU legislature had excluded them from the EU emissions trading scheme." Her opinion is likely to carry considerable weight with the Court, which is expected to rule on the challenge in the near future.

On October 5 & 6 the University of Maryland School of Law hosted a terrific symposium in honor of my late colleague Hungdah Chiu, one of the top East Asian legal scholars who played a major role in helping Taiwan improve relations with the PRC. Professor Jerry Cohen of NYU, the world’s leading China law scholar, delivered the opening address. The Thursday keynote on “Professor Hungdah Chiu, Taiwan and Cross-Strait Relations” was presented by Su Chi, former secretary general of Taiwan’s National Security Council. He reviewed the history of relations between Taiwan and the PRC and the important role that Professor Chiu played in shaping them. Su argued that Taiwan is no longer the “tail wagging two dogs” (the U.S. and the PRC).

In a lecture at Maryland on October 6 State Department Legal Adviser Harold Koh delivered a strong defense of the Obama administration’s policies. Koh’s lecture on “International Law in a Post 9/11 World” was the Pearl Laurence I. and Lloyd M. Gerber Memorial Lecture given annually at Maryland. Koh disputed the notion that the Obama administration has simply continued the Bush administration’s policies to combat terrorism. He articulated six ways in which Obama’s policies are significantly different from Bush’s. These include that the Obama administration has (1) placed greater reliance on legislation rather than asserting inherent constitutional authority, (2) uses International law to informs its actions, (3) has absolutely banned torture and insisted on humane treatment for prisoners, (4) has employed a mixed paradigm that observes both the laws of war and enforcement of domestic law, (5) is fighting Al-Quaeda and the Taliban rather than a “global war on terror,” and (6) that the Obama administration employs a fact-based, rather than a label-based approach, in determining legitimate targets. Koh explained that while he formerly focused on learning the names of his students, he now must concentrate on knowing the names of terrorists.

Last week it was revealed that Cardno Entrix, a Houston-based environmental contractor hired by the U.S. State Department to help the agency prepare the environmental impact statement (EIS) for the proposed Keystone XL pipeline project, has close ties to TransCanada, the company proposing to build the pipeline. TransCanada is a major client of Cardno Entrix and it recommended that the State Department hire the consultant, who also is playing a major role in organizing public hearings on the project. Environmentalists suggested that this relationship undercuts the credibility of the EIS, while State Department officials defended it. Elisabeth Rosenthal and Dan Frosch, Pipeline Review Is Faced With Question of Conflict, N.Y. Times, Oct. 8, 2011, at A11.

Ozone holes have been common over the Antarctic, but last week the journal Nature reported that the first significant ozone hole had opened up over Arctic regions last winter. The hole, which reached as far south as Russia and Mongolia last February, surprised scientists who attribute it to releases of chlorofluorocarbons (CFCs) during the twentieth century. The Montreal Protocol that phases out such ozone-depleting substances on a global basis has now been signed by 191 countries and is considered the most successful international treaty to protect the environment. The Nature article, Manney, et al., Unprecedented Arctic Ozone Loss in 2011, is available online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature10556.html.

Like millions of other uses of Apple products, I was saddened by the death of Steve Jobs last week. As someone who has regularly attended the annual Macworld conference, I had watched Jobs deliver several of his famous keynote addresses, including the introduction of iTunes in 2001, the iPhone in 2007 and the conference where Jobs gave free copies of the Keynote presentation program to everyone attending his keynote address. Under Jobs’ leadership Apple made so many insanely great products that I often wondered whether the company could have rescued the auto industry by making an iCar. There is no other corporate leader that can fill Jobs’ shoes and his passing leaves a great void.

Last week I agreed to teach a summer course on Comparative U.S./Chinese Environmental Law from July 23-August 4 at Vermont Law School. The course is likely to be followed by a class field trip to China. On October 10 I hosted an informational session for Maryland’s upcoming student trip to China during spring break from March 8-18, 2012. There is still space available on the trip and I am delighted that a few of my Georgetown students have indicated that they may join us.

Myanmar Halts Dam, Girl Scouts Limit Palm Oil Use, Geoengineering Push Urged, VJEL China Symposium (by Bob Percival)

2011-10-04T20:15:00.001-07:00

Perhaps the most stunning news of the last week was the decision by President Thein Sein of Myanmar to cancel the construction of the $3.6 billion Myitsone dam project on the Irrawaddy River in the northern part of the country. The cancellation occurred after vigorous environmental opposition to the dam endorsed by 1991 Nobel Peace Prize winner Aung San Suu Kyi, who recently emerged after seven years of house arrest imposed by the country’s former military government. Myanmar residents questioned why the country was planning to flood an area the size of SIngapore and cause immense environmental damage, as documented in an environmental impact assessment, for a project from which 90% of the electrical generation was to be exported to China. The cancellation apparently has angered Chinese officials, including Lu Qizhou, president of the China Power Investment Corporation that was constructing the 6,000 MW project.

Last week the Girl Scouts of America announced that they will move to reduce the use of palm oil in Girl Scout cookies in response to an environmental campaign launched by two teenager scouts from Michigan - Madison Vorva and Rhiannon Tomtishen. The campaign was launched after revelations that palm oil plantations in Southeast Asia had been contributing to massive deforestation that contributes to climate change. The Girl Scouts announced that they have directed their suppliers to use as little palm oil as possible in Thin Mints, Samoas, and Trefoils and to switch to sustainable palm oil by 2015. Julie Jargon, Girl Scouts Move to Limit Palm Oil in Cookies, Wall St. J., Sept. 28, 2011.

The Bipartisan Policy Center’s 18-member Task Force on Climate Remediation Research has endorsed a crash research program into geoengineering as a means to protect the planet from climate change. Geoengineering includes proposals to scatter particles in the upper atmosphere to reflect sunlight away. A copy of the report is available online at: http://www.bipartisanpolicy.org/sites/default/files/BPC%20Climate%20Remediation%20Final%20Report.pdf

An independent panel in Japan revealed on September 30 that the country’s Nuclear and Industrial Safety Agency had sought to enlist employees of the country’s nuclear power plants to attend public forums and voice support for nuclear power. Mitsuru Ore, Japan Nuclear Agency Adds to Mistrust, Wall St. J., Oct. 1-2, 2012, at A11. This tactic seems to mimic that employed by the American Petroleum Institute in organizing “energy citizen” rallies enlisting employees of fossil fuel power plants to exaggerate opposition to environmental regulation, except for the additional scandal of a government agency being involved in promoting the rallies. Another panel advising the Japanese government concluded that it will be difficult to ensure the financial stability of the Tokyo Electric Power Company without allowing it to restart some of its undamaged nuclear reactors. Mitsuru Ore & Kana Inagaki, Tepco Reactor Restarts Are Push, Wall St. J., Oct. 4, 2011 at B5.

This week I received a copy of the latest issue of the Vermont Journal of Environmental Law with articles from Vermont Law School’s March 2011 symposium on “China’s Environmental Governance.” The articles include John Nagle’s “How Much Should China Pollute?,” Jason Czarneski’s “Climate Policy & U.S. China Relations,” Adam Moser’s “Pragmatism Not Dogmatism: The Inconvenient Need for Border Asjustment Tariffs Based on What Is Known About Climate Change, Trade and China,” Jennifer Turner’s “Choke Point China: Confronting Water Scarcity and Energy Demand in the World’s Largest Economy,” and my article on “China’s ‘Green Leap Forward’ Toward Global Environmental Leadership.” The articles are not yet posted online, but hopefully the VJEL will soon update its website.

Court Lifts Injunction Barring Ecuador Collection of Chevron Judgment, Chinese Protests, Nuclear Power & TRAIN Act (by Bob Percival)

2011-09-26T21:53:00.000-07:00

The long-running dispute between residents of Ecuador and the Chevron Corporation over the cleanup of oil pollution from drilling decades ago in Ecuador took a sudden turn last week. On Monday September 19 the U.S. Court of Appeals for the Second Circuit issued an order vacating a federal district court’s injunction barring enforcement of an Ecuadoran trial court’s $18 billion judgment against Chevron. The order was issued after the three judges hearing an appeal of injunction (Rosemary S. Pooler, Richard C. Wesley, and Gerald E. Lynch) expressed extreme skepticism over its legality at oral argument on September 16. The injunction had been issued by federal district judge Lewis Kaplan in March in response to a RICO lawsuit by Chevron accusing the plaintiffs of trying to shake down the company through a fraudulent conspiracy. The Second Circuit denied the plaintiffs’ request for a writ of mandamus removing Judge Kaplan from the case for bias, but it granted the plaintiffs’ motion for an order imposing a stay to prevent Judge Kaplan from proceeding with a November trial as a prelude to making the injunction permanent. The court indicated that it will issue an opinion explaining its order in due course.

Plaintiffs’ counsel assured the court at oral argument that they will not seek to enforce the Ecuadoran judgment until after review of it has been completed by an appellate court in Ecuador, which is expected to take several months. Thus the main impact of the court’s order is to shift the focus of the litigation for now back to the Ecuadoran courts. Some elements of the judgment are highly questionable, particularly the provision that what initially was an $8.6 billion judgment would double in size if Chevron did not immediately apologize to the people of Ecuador for its actions. Thus, if the Ecuadoran appellate courts are fair they should dramatically reduce the size of the judgment. But Chevron’s claim that the judgment was a product of fraud seems far-fetched. This is a case that should have been settled long ago, but the level of animosity between the parties is so high that this seems most unlikely at this point. Chevron (and its predecessor in interest Texaco) could have had this case decided by a U.S. federal court, which is where it initially was filed by the plaintiffs in 1993, but the company persuaded the U.S. court that Ecuador was a more convenient forum. For the last year or so Chevron’s legal strategy seems to have been to bleed the plaintiffs dry by filing actions in new venues including the Permanent Court of Arbitration in the Hague and several U.S. courts in aid of discovery on its fraud allegations. However, when the plaintiffs obtained financing from several hedge funds, the playing field was leveled so that it is now a battle between well-heeled U.S. law firms with Gibson, Dunn representing Chevron and Patton Boggs representing the Ecuadoran plaintiffs. Stay tuned, but do not expect a quick resolution of this case.

Four days of vehement protests by Chinese citizens about air and water pollution from a solar panel factory owned by the Zhejiang JinkoSolar Company resulted in the Chinese government temporarily shutting down production at the plant. Residents blame the plant, which is located in Haining city in eastern China, for an unusual number of cancer deaths in the area.

New York authorities have arrested 12 people in Chinatown on misdemeanor charges for illegally importing a rat poison that is 60 times more potent than the level considered safe under U.S. pesticide regulations. The pesticide, which contains the chemical brodifacoum, apparently was smuggled into the U.S. from China. U.S. EPA officials expressed particular concern about the impact of the illegal rat poison on young children. William K. Rashbaum, 12 Held in Sale of Pest Poisons, One 60 Times as Potent as the Legal Limit, N.Y. Times, Sept. 20, 2011, at A20.

Siemens, the largest energy conglomerate in Europe, announced that it will stop building nuclear powerplants anywhere in the world. The company had built 17 nuclear power plants in Germany, but it is now concentrating on its renewable energy division, which has experienced the fastest growth of any of its lines of business. Judy Dempsey, Siemens Ends Building of Nuclear Power Plants, N.Y. Times, Sept. 20, 2011, at B2. Russian authorities have decided to extend the life of the country’s nuclear power plants to 45 years from 30 years. These include 11 Chernobyl-era nuclear (RMBK) reactors designed to operate without containment vessels. RMBKs have been retired in Ukraine and Lithuania, but Russia has refused to bow to international pressure to shut down its aging reactors. David Crawford & Rebecca Smith, Russia to Extend Life of Aging Reactors, Wall St. J., Sept. 22, 2011, at A15.

On Friday September 23, the U.S. House of Representatives by a vote of 249-169 approved the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, which is designed to halt EPA Clean Air Act regulations. Fewer than 20 Democrats supported the legislation, which President Obama has threatened to veto. The TRAIN Act would block EPA rules from taking effect while establishing an interagency panel chaired by the Commerce Department to examine the impact of EPA rules on the economy. The legislation is not expected to pass the U.S. Senate.

During down time while in Boston for a family wedding last weekend, I attended the opening session of a Conference on the Constitutional Convention at Harvard Law School. Harvard law professor Larry Lessig and Tea Party Patriot founder Mark Meckler argued at the opening that both fed up conservatives and liberals should support using Article V of the Constitution to call a new convention to rewrite the world's oldest written constitution. I think it is a really bad idea, particularly at a time of extreme political polarization, to put our founding charter up for grabs. My fears were compounded when Texas law professor Sandy Levinson proposed that delegates to such a constitutional convention (that Congress is supposed to call after petitioned by two-thirds of the states) should be selected by lottery.

New BP Spill Report, Shanghai EPB Suspends Lead Plants, Japan Nuclear Regulations, Sotomayor at Maryland Name Launch (by Bob Percival)

2011-09-18T20:17:00.000-07:00

On September 14 the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the U.S. Coast Guard released their final joint report on last year’s oil spill in the Gulf of Mexico. The report was highly critical of BP and its contractors Halliburton and Transocean, while finding that BP bore ultimate responsibility for the spill. Links to each part of the report are available at: http://www.boemre.gov/ooc/press/2011/press0914.htm

On Friday the Shanghai Environmental Protection Board (EPB) ordered operations suspended at two battery manufacturing plants due to the discovery of elevated lead levels in children living nearby. The action was taken after a microblogging campaign by parents of children found to have elevated levels of lead when given health tests at the start of the school year. It was reported that 12 of 25 children found to have elevated lead levels were hospitalized. The levels ranged up to 50 micrograms per deciliter, five times the 10 microgram/dl level of medical concern recognized by health authorities in both the U.S. and China. The plants, which are located in suburban Shanghai near the Pudong International Airport, include one owned by U.S.-based Johnson Controls Inc. A company spokesperson noted that Johnson’s emissions of lead are one-seventh the relevant standard and its wastewater emissions of lead are only one-tenth permissible limits. Johnson’s Shanghai plant is 13 years old and was acquired from another company six years ago. Johnson recently announced that it would build a new $100 million battery plant in China. James T. Areddy, Shanghai Shuts Plants in Lead Probe, Wall St. J., September 17, 2011, at A10. In 1990 the U.S. Supreme Court held that a Johnson Controls’ policy barring women of child-bearing age from positions where they would be exposed to lead from battery manufacturing constituted unlawful sex discrimination. In August China suspended operation of companies that mine and produce rare earth metals in order to conduct a three-month review of their environmental practices. Some suspect that this move, which has sent global prices of compact fluorescent light bulbs soaring, may be motivated by a desire to deflect complaints of protectionism. Keith Bradsher, China Consolidates Grip on Rare Earths, N.Y. Times, Sept. 16, 2011, at B1.

Japan officials are drafting new regulations to govern operation of the country’s nuclear power plants in the wake of the March 2011 tsunami and nuclear accident at the Fukushima Daiichi power complex. Kojiro Irikura, who is chairing the panel drafting regulations for the the country’s Nuclear Safety Commission, stated last week that all plants will have to be able to withstand a 9.0 earthquake and 15-meter tsunami. Only 11 of Japan’s 54 nuclear reactors are currently operating, but federal authorities are trying to encourage the restart of some of the plants. Irikura believes that previous safety guidelines were too lenient because they focused on most likely events rather than worst case scenarios. Chester Dawson, Big Japan Quakes Still a risk, Wall St. J., Sept. 16, 2011, R 10.

Industry efforts to make federal regulations a scapegoat for the sluggish economy continued this week when U.S. Speaker of the House John Boehner told the Economic Club of Washington that “219 new rules” were pending that each would cost the U.S. economy at least $100 million per year. After further investigation Washington Post Fact Checker Glenn Kessler discovered that a significant portion of these “rules” are simply agency actions to transfer federal funds to recipients, many involve rules that generate benefits greatly in excess of their projected costs, and others involve actions already completed or that are not likely to be completed in the near future. As a result Kessler awarded “three Pinnochios” to Boehner. Glenn Kessler, John Boehner’s Misfire on Pending Federal Regulations, Sept. 16, 2011.

On Friday Justice Sonia Sotomayor came to the University of Maryland School of Law to participate in ceremonies marking the launch of its new name as the University of Maryland Francis King Carey School of Law. The new name honors the school’s 1880 graduate whose decendants are responsible for the W.P. Carey Foundation’s $30 million gift to the school. Sotomayor was both warm and eloquent in responding to questions from both Maryland law students and high school students.

Tenth Anniversary of 9/11, NRC Allows Withdrawal of Yucca Mt. Application, More Fallout from Japanese Nuclear Accident (by Bob Percival)

2011-09-11T20:00:00.000-07:00

Sunday September 11 marked the 10th anniversary of the 9/11 terrorist attacks in New York City, Washington, D.C. and Pennsylvania. I remember leaving my home in Washington, D.C. on the morning of September 11, 2001 for the trip to Baltimore and feeling exhilarated by what a spectacularly beautiful day it was. I was on the telephone from my car to a financial services company in New York City when the news broke about the first plane to hit the World Trade Center. I continued to drive to Baltimore and eventually was able to reach my wife who was working in an elementary school on Capitol Hill. She reported that they could see the smoke rising from the Pentagon where another plane had crashed. When I reached Baltimore I called her parents because it was difficult for anyone to make contact by mobile phones given circuit overload.

Two events that occurred the day before and the day after 9/11 remain particularly striking to me. On Monday July 10, 2001 I was a guest speaker at the annual conference of the National Association of Administrative Law Judges in Rehoboth Beach, Delaware. My talk was on the history of environmental risk regulation and I remember noting that two of the concerns that A cartoon published the weekend before depicted someone’s car being hit by a shark talking on a cellphone. While driving back to Baltimore after my morning presentation, I listened in my car to C-Span Radio which broadcast a presentation from the National Press Club by Delaware Senator Joe Biden. He was criticizing the Bush administration for its decision to pursue a missile defense shield for the U.S. Biden argued that future threats facing America were unlikely to include nuclear missiles, but instead would feature unconventional attacks by terrorists, including perhaps suitcase nuclear bombs.

The second memory was that I was scheduled to host a delegation of environmental law professors from Iran who were going to speak at a faculty lunch at Maryland day after 9/11. In May 2001 I had joined Bern Johnson from E-Law International and Richard Lazarus from Georgetown on a trip to Iran to present a week-long environmental law workshop at the University of Tehran. The trip was sponsored by a group called Search for Common Ground. On that trip we met many inspiring individuals from the public interest movement in Iran which was struggling mightily against an oppressive government. I subsequently agreed to serve on the Advisory Board of the University of Tehran’s impressive Journal of Environmental Research. The five-person delegation from Iran was at Georgetown on 9/11 and we agreed to continue with our scheduled program at Maryland the following day. During the program I showed the faculty a film I had made about our workshop that included lots of scenes of daily life in Iran. The five Iranian environmental law professors participated in a panel discussion that touched on the events of the previous day, with the Iranians questioning why their government was immediately considered a suspect. The Iranians reported that their country was in mourning for the victims of the terrorist attacks and that the Mayor of Tehran had sent his condolences to Mayor Giuliani. The group visited my Environmental Law class that day where they discussed their efforts to upgrade Iran’s environmental laws.

I regret that subsequent events have made it impossible for me to continue regular contact with the inspiring public interest community in Iran even though my name is still on the list of advisors to the Journal of Environmental Research, which I receive regularly and read with interest. Prior to 9/11 the Bush administration had tried to justify its abrupt March 2001 about-face on controlling emissions of greenhouse gases by arguing that the cost would wreck the U.S. economy. Yet after 9/11 it spent far more money on the “war on terror” without producing the forecast economic damage (the severe 2008 global recession was spawned by subsequent events). An article in today’s New York Times estimates that the cost of the 9/11 attacks to the U.S. has been $3.3 trillion when one takes into account the physical and economic damage of the attacks ($55 billion and $123 billion, respectively), the cost of increased homeland security ($589 billion), the cost of wars in Iraq and Afghanistan ($1.649 trillion plus $277 in future war funding through 2016 and $589 billion for the future cost of caring for veterans). Amanda Cox, A 9/11 Tally: $3.3 Trillion, N.Y. Times, Sept. 11, 2011, at 13 (special section). For an explanation of how security barriers have become more ecologically conscious, see Henry Fountain, The Age of the Eco-Citadel, N.Y. Times, Sept. 11, 2011, at 23 (“The Reckoning” special section).

Last week the U.S. Nuclear Regulatory Commission (NRC) split 2-2 (with one recusal due to a perceived conflict of interest) in ruling on a motion to deny the Obama administration’s request to withdraw the Department of Energy’s application to site a repository of high-level radioactive waste at Yucca Mountain, Nevada. As a result of this vote, the application will be withdrawn. Ryan TRacy, Regulator’s Vote Dims Prospects for Yucca Project, Wall St. J., Sept. 10, 2011.

Yoshio Hachiro, the new Japanese minister for trade and industry, was forced to resign last week as a result of statements he made about the Fukushima Daiichi nuclear accident. Last Thursday he created a furor by referring to cities in the exclusion zone around the plant as “dead towns.” Later that day he exclaimed “look out, radiation!” while pretending to wipe contamination off his protective clothing on a reporter after returning from a trip to the plant. Martin Fackler, Japense Official Resigns Over Radiation Joke, N.Y. TImes, Sept. 9, 2011.

A bit of good news: the adult smoking rate in the United States fell last year. Only 19.3% of adults in the U.S. smoked in 2010. This is a decrease from the 21% who reportedly smoking five years earlier in 2005.

Obama Blocks Ozone Rule, Chinese Groups Criticize Apple, Nuclear Update, Cheney's Memoir, Expanded Lacey Act (by Bob Percival)

2011-09-05T19:01:00.000-07:00

After fierce lobbying from industry groups, President Obama announced on Friday September 2 that he had directed EPA Administrator Lisa Jackson to withdraw a proposal to tighten the national air quality standard for ozone. President Obama cited “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover” (http://www.whitehouse.gov/the-press-office/2011/09/02/statement-president-ozone-national-ambient-air-quality-standards). In a memo directing EPA to reconsider the rule, OMB’s Cass Sunstein noted that EPA could consider a new standard in two years and that other recent rules also will reduce ozone pollution (which presumably would reduce the cost of meeting a tighter standard). Sunstein’s letter is available online at: http://www.whitehouse.gov/sites/default/files/ozone_national_ambient_air_quality_standards_letter.pdf).

The administration’s decision leaves in place the 2008 ozone standard (0.075 ppm over 8 hours) that the Bush administration had promulgated over the unanimous objections of EPA’s Clean Air Scientific Advisory Committee (CASAC). CASAC had recommended that the standard be set within a range from 0.060 to 0.070 ppm. The best that could be said for Obama’s decision is that he is being honest about the reason for the action, unlike his predecessor who frequently directed EPA in secret to weaken regulatory decisions without publicly disclosing the real reasons. And the Obama administration did pledge to complete a new review of the ozone standard by 2013. But it sets a terrible precedent by buying into industry scapegoating of environmental regulations for economic problems, lending credibility to the “now is not the time” argument that always is used to oppose new environmental laws or regulations. In 1990 when the spectacularly successful 1990 Clean Air Act Amendments were about to be adopted by Congress, industry opponents assembled a group of Nobel Prize-winning economists who argued that it would seriously harm the economy, an argument repeated in 1997 when EPA tightened air quality standards. Both predictions proved dead wrong, see Motoko Rich & John Broder, A Debate Arises on Job Creation v. Environmental Regulation, N.Y. Times, Sept. 5, 2011, at B1, but President Obama has now caved to similar pressure, which will make it harder to explain why other EPA regulatory actions also should not be put on hold.

Of course the “now is not the time” argument is remarkably versatile and is employed even in times of robust economic growth when it is argued that “now is not the time” because any new regulation will kill the robust growth. Actually the ozone rule is particularly ill-suited as a target for this argument because it would take many years to implement since states first have to change their implementation plans, obtain EPA approval, and then issue permits. Describing America’s polluting coal, oil and chemical industries as “masters of the art” of “economic scare tactics,” Christopher Swann reminds us that industry claimed the 1990 Clean Air Act would increase electricity prices by 13% when in fact they fell by 20%. Christopher Swann, “Backing Off Air Rules,” N.Y. Times, Sept. 5, 2011, at B2. Moreover the decision to scrap the new rules penalizes companies who invested in new pollution control technology in anticipation of the existing Clean Air Act being implemented in a timely fashion. The decision will hurt the natural gas industry, which had anticipated increased demand for its product as the ozone rules forced dirtier energy providers to close. Liam Denning, Obama Burns Gas Drillers on Ozone, Wall St. J., September 3-4, 2011, at B16. For a devastating insider’s account of the history behind this decision by NRDC attorney John Walke see: http://switchboard.nrdc.org/blogs/jwalke/the_president_sabotages_clean.html.

Of course the Clean Air Act makes it illegal for EPA to consider economic impacts when setting purely health-based standards like national air quality controls (costs can be considered at the implementation stage). Also the President does not have the legal authority to dictate to the EPA Administrator what decision she should make in setting air quality standards under the Clean Air Act. See Robert V. Percival, “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” 79 Fordham L. Rev. 2487 (2011). However, there is widespread agreement that the President could fire EPA Administrator Lisa Jackson if she refused to comply with his directive. On Friday Jackson appeared to accept the President’s directive while definitely not endorsing it. After citing EPA’s other actions to control air pollution during the Obama administration, she concluded: ”We will revisit the ozone standard, in compliance with the Clean Air Act.” Her statement is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/E41FBC47E7FF4F13852578FF00552BF8

Last week five Chinese environmental groups led by Ma Jun’s Institute for Public and Environmental Affairs released another report criticizing pollution by Chinese suppliers of Apple. The report, entitled “The Other Side of Apple 2” is based on data collected during a seven-month investigation of Apple’s suspected suppliers. It finds that 27 of these suppliers have released toxic pollutants that have harmed communities or the environment. Apple executives responded to the report by reiterating the company’s commitment to environmental compliance by its suppliers and by agreeing to speak with the authors of the report. Last week the World Bank released a report urging China to act to reduce the rise of non-communicable diseases including diseases caused by air and water pollution. The report, entitled “Toward a Healthy and Harmonious Life,” is available online at: http://www.worldbank.org/content/dam/Worldbank/document/NCD_report_en.pdf. The report notes that China can save a staggering $10.7 trillion from 2010 to 2040 if it can just reduce by 1% its rate of cardiovascular disease.

Japan’s new prime minister Yoshihiko Noda confirmed that he supports a gradual phaseout of nuclear power. Last week, in his first address to the Japanese nation, Noda stated that it would be “unrealistic” to build any new nuclear power plants or to extend the life of existing plants in light of the severe accident at the Fukushima Daiichi reactor complex. Last week the Associated Press released the results of a lengthy investigation concluding that seismic risks at U.S. nuclear power plants have been significantly underestimated, by a figure of 24 times in one case. The study concluded that nearly one-quarter of the 104 nuclear plants in the U.S. may need to be modified to protect against seismic risks. Dina Cappiello & Jeff Donn, Quake Risk to Reactors Greater than Thought, AP (http://hosted.ap.org/dynamic/stories/U/US_NUCLEAR_PLANTS_EARTHQUAKES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT). On September 1 the U.S. Nuclear Regulatory Commission (NRC) released for public comment a draft letter requesting its licensees to reevaluate their facilities’ vulnerability to earthquakes and to supply the NRC with data to assist in the revision of safety standards for seismic risks. 76 Fed. Reg. 54507 (Sept. 1, 2011).

Like President George W. Bush’s memoir (see Nov. 14, 2010 blog post), former Vice President Dick Cheney’s “In My Time” almost entirely ignores environmental issues. The words “climate change,” “global warming,” “Kyoto Protocol,” and even “Christie Todd Whitman” are never mentioned in his book. One would have thought Cheney would be proud enough to explain how he engineered President Bush’s repudiation of his campaign pledge to control emissions of CO2 or his successful effort to neuter EPA Administrator Whitman, issues covered extensively in Bart Gellman’s Angler and Whitman’s own memoir (“It’s My Party Too”). However, Cheney cannot resist describing his failed energy task force as a triumph, not because it changed policy, but rather because he was able to defeat lawsuits seeking greater disclosure of its operations. Cheney portrays environmentalists as naive for promoting renewable energy and expresses pride in his famous statement that “Conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.“ Cheney claims that environmentalists do not understand the need to increase the domestic supply of fossil fuels and again raises the bogus specter of the lights going out if we do not do so. He never mentions Ken Lay or the role of Enron’s energy traders in engineering the brief escalation of electricity prices in California that initially was used to justify formation of his task force.

In 2008 the federal Lacey Act that makes it illegal to import wildlife in violation of U.S. or foreign laws was amended to extend its protections to forest products. The law requires companies to use “due care” to ensure that their suppliers of forest products are in compliance with the law, making it a powerful tool to decrease demand for the fruits of illegal logging operations. Federal agents recently raided a Gibson Guitar factory in Tennessee to investigate whether ebony from India was shipped to the company in violation of Indian law. The raid has been taken as a signal that the U.S. Department of Justice will aggressively enforce the Lacey Act as extended to forest products. Anderson Hardwood Floors expresses strong support for the law as a means of protecting it from unscrupulous competitors who obtain wood through illegal logging. Anderson, which now makes 90% of its products in the U.S., imports wood only from Paraguay where it can be confident that its suppliers are complying with the law. Kris Maher & James R. Hagerty, Forestry Law Splits Wood Industry, Wall St. J., Sept 2, 2011, at B2.

Last week I began teaching Environmental Law at both the Georgetown University Law Center, where I am a visiting professor this fall, and the University of Maryland School of Law. There are 56 students in my Georgetown class and 66 in the Maryland class. In both classes we are using my casebook Environmental Regulation: Law, Science and Policy, which has just been issued by Wolters Kluwer in an electronic edition that enables professors to annotate and update the casebook instantly and to embed interactive video links into the text. The new SmartBook technology also enables students to brief cases, highlight the text, prepare outlines, and access the text from mobile media. These are really exciting developments that have been enthusiastically embraced by the students who have elected to use the SmartBook version of the casebook. For more information see my casebook website at http://www.erlsp.com.

Vietnamese Delegation, Superbugs & GMOs, XL Pipeline Decision, Kenya E-Court, Danish Arctic Plan, China Sues Conoco Phillips (by Bob Percival)

2011-08-29T20:43:00.000-07:00

On Tuesday August 23 I hosted a group of visiting environmental professionals from Vietnam at the University of Maryland School of Law. The group included Dr. Loi Van Dang, Deputy Director of the Department of Pollution Control at the Vietnam Environment Administration (VEA), Mr. Son Minh Hoang, Deputy Director of the VEA’s Department of Policy and Legislation, Dr. Dong The Nguyen, VEA’s Deputy General Director in the Ministry of Natural Resources and Environment, and Dr. Khanh Quoc Nguyen, Director of the VEA’s Center for Environmental Information and Data. It also included Mr. Phuong Nam Nguyen, Director of the Vietnam Environment Protection Fund, Mr. Sy Thi Nguyen, Deputy Director of the Environmental Crime Prevention Unit in Vietnam’s Ministry of Public Security and an environmental journalist, Dr. My Thi Pham, who is the Editor-in-Chief of the newspaper Natural Resources & Environment. Vietnam is in the process of revising its environmental laws, as is customary every five years, and the group was visiting the U.S. under the sponsorship of the U.S. Department of State’s International Visitor Leadership Program. I was asked to present a lecture to them summarizing aspects of U.S. environmental law that might be useful to them in updating Vietnam’s laws.

When I visited Vietnam in May 2008, I spent an afternoon in Hanoi at what was then called the Vietnam Environmental Protection Agency, meeting with Dr. Tran Hong Ha, who was then the agency’s Director General. (See May 4, 2008 blog posting). Last Tuesday I showed the Vietnamese visitors a photo of my visit with Dr. Ha, who they explained has been promoted to an even more important position in the Vietnamese government. Half way through my presentation the ceiling started rumbling and the floor shook. One of the interpreters who had lived for many years in California jumped under a table and declared that it was an earthquake. I continued lecturing for another 15 minutes until a security guard burst into the room and asked why we had not evacuated the building (answer: no one told us to). The evacuation enabled me to introduce the visitors to several members of our faculty, gathered in the park across the street from the law school, but it precluded us from completing our workshop.

Hurricane Irene hit the east coast and the Washington area this weekend. While it was not nearly as bad as people initially had feared, the concern that major urban areas like New York City could be flooded by Katrina-like storm surges seems to have pointed the way to what we can expect in the future as sea level rise and stronger hurricanes (both forecast by the IPCC) occur with greater frequency.

Despite a strong stock market rally today, Monsanto Corp. was one of the few companies that saw its stock decline in price. The reason apparently was an article in the Wall Street Journal that publicized a discovery by scientists from Iowa State University. The scientists found that some agricultural pests appear to have developed immunity tonsanto’s genetically modified crops that are supposed to be resistant to the bugs. Scott Kilman., Monsanto Corn Plant Losing Bug Resistance, Wall St. J., Aug. 29, 2011, at B1. Are presidential candidates who question the theory of evolution listening?

Despite strong protests from environmental groups, the U.S. State Department on August 25 approved construction of the XL pipeline to transport crude oil from Alberta’s tar sands to U.S. refiners. Several prominent environmentalists,, including Gus Speth, were arrested and spent last weekend in jail after protesting in front of the White House. Environmentalists fear that the piepline will help Canada market oil derived from Alberta tar sands that generates significantly more greenhouse gase emissions than alternative fuels.

In August 2010 the nation of Kenya adopted an ambitious new constitution that, among other reforms, created a Land and Environmental Court. The constitution was approved by a vote of 67% of Kenyans who voted in a referendum in August 2010. Under the terms of the new constituton, Kenya’s Parliament was supposed to enact implementing legislation within one year of adoption of the constitution. With the deadline looming, Kenya’s Parliament did in fact adopt legislation to implement the terms of the new constitution. While I do not have direct confirmation that this included legislation to establish Kenya’s Land and Environment Court in July 2011, draft legislation to implement this provision of the constitution was unveiled in late July 2009.

On August 23 the Foreign Ministry of Denmark unveiled a new 10-year plan for the Arctic that shifts the focus of government policy from environmental protection to commercial and economic development. The strategy was agreed upon by the governments of Denmark, Greenland, and the Faroe Islands. Danish Foreign Minister Lene Esperson explained that “Previously, the discussion about the Arctic region has focused on the environment, on whether we oughtn’t turn the region into one large natural preserve. But Denmark, Greenland and the Faroe Islands have now agreed that we want to utilize the commercial and economic potential of the area.” The plan seeks to encourage private investment in the area to improve the living standards of people residing there. Flemming Emil Hansen, Arctic Strategy Shifts to Economic Development, Wall St. J., Aug. 24, 2011, at A6.

Press reports last week confirmed that the Chinese government’s maritime authority is about to sue the U.S. oil company Conoco-Phillips for two major oil spills that occurred in June 2011 in Bohai Bay. China’s State Oceanic Administration is reviewing applications from 49 Chinese law firms to help with the litigation. The two spills released 3,2000 barrels of oil and drilling fluids in the Penglai 19-3 offshore oil field, spreading pollution over 324 square miles of Bohai Bay. Conoco states that its cleanup of the spills is more than 95% complete and that it will “do the right thing” with respect to compensating victims of the spills. Edward Wong & Clifford Krauss, Chinese Maritime Agency Plans to Sue American Oil Company Conoco Phillips Over Two Spills, N.Y. Times, Aug. 25, 2011 (http://www.nytimes.com/2011/08/26/world/asia/26china.html).

Dalian Protest, Japan Reorganizes Nuclear Regulation, Uganda Mabira Forest Dispute, GOP Candidates v. EPA (by Bob Percival)

2011-08-21T15:15:00.000-07:00

Last week a large group of Chinese citizens - officially estimated to number 12,000, but many more by other estimates -- gathered in the northern port town of Dalian to protest the operation of a $1.5 billion chemical plant. The Fujia chemical plant, which has been operating for two years, makes paraxylene, a toxic chemical used to manufacture polyester. The plant is located on the coast. After the plant’s seawall was breached in a typhoon that hit a week earlier, seawater lapped at the walls of the plant, causing the public to fear that toxic chemicals would be released. The city’s Communist party secretary reportedly stood atop a car to beg the demonstrators to disperse, promising them that the plant would be closed. Sharon LaFraniere & Michael Wines, Protest Over Plant Shows Citizen Pressure on China, N. Y. Times, Aug. 15, 2011. The demonstration, organized in part through social media and other internet communications, is another sign of the potential power of public protests in China. Although the Dalian protest was peaceful, my Chinese sources indicate that some of the protesters may have been roughed up by police.

On August 15 the Japanese government announced that it will move the agency responsible for regulating nuclear power from the Ministry of Economy, Trade and Industry to the Environment Ministry. A new Nuclear Safety Agency will be created in April replacing the current Nuclear and Industrial Safety Agency and the Nuclear Safety Commission. It will be an affiliate of the Environment Ministry. The move is widely viewed as a means of strengthening regulation of nuclear power in light of the perception that the existing regulatory agencies were too close to the industry. Mitsuru Ore, Japan Tightens Nuclear Oversight, Wall St. J., April 16, 2011, at A9.

The shutdown of nuclear power plants in Japan in the wake of the March 2011 accident at the Fukushima Daiichi nuclear power complex continues to spread. Strong pressure from the Japanese public has prevented the restart of reactors temporarily idled for routine inspections. As a result, only 15 of the country’s 54 nuclear power plants are in operation now. If this trend continues through next spring Japan’s entire nuclear power industry, which accounted for 30% of the country’s electric generation prior to the accident, could be shut down. Although conservation measures reduced peak electric demand in Japan in July 2011 by 20 percent, several old fossil-fueled power plants have been placed in operation to prevent severe power shortages. In addition to increasing the cost of electricity generation by nearly $40 billion per year, increased use of oil and coal could increase Japan’s greenhouse gas (GHG) emissions by 16% over 1990 levels by the year 2013. Hiroko Tabuchi, Quake in Japan Causes Costly Shift to Fossil Fuels, N.Y. Times, Aug. 20, 2011, at B2. The Kyoto Protocol requires Japan to reduce its GHG emissions by 6% over 1990 levels during the 2008-2012 period. Meanwhile in the U.S. the board of the Tennessee Valley Authority has voted to resume construction of a nuclear power plant that had been put on hold in 1988. The decision to restart construction was taken to replace old coal-fired plants that are being retired in part due to pollution and climate change concerns. Matthew L. Wald, Alabama Nuclear Reactor, Partly Built, to Be Finished, N.Y. Times, Aug. 19, 2011, at A12.

The U.S. Department of Interior announced on August 19 that on December 14 it will conduct the first sale of leases for offshore oil drilling in the Gulf of Mexico since the Deepwater Horizon oil spill in April 2010. The Department raised the minimum bid to $100 per acre from $37.50 per acre in an effort to prevent oil companies from stockpiling properties that are never developed. Leases that are not developed can revert back to the federal government at the end of their term, though extensions routinely have been granted in the past. ExxonMobil recently sued the Interior Department for refusing to extend the term of its leases for the Julia oil field in the Gulf of Mexico that the company estimates may contain one billion barrels of recoverable oil. Russell Gold, Exxon, U.S. Government Duel Over Huge Oil Find, Wall St. J., Aug. 18, 2011, at A1. Statoil ASA of Norway, whose lease extension request also was denied, filed suit on August 15, claiming that Interior’s action was unprecedented because lease extension requests never previously have been denied for deepwater oil fields.

On August 15 the U.S. Fish & Wildlife Service released its draft comprehensive conservation plan (CCP) for the Arctic National Wildlife Refuge (ANWR) in northern Alaska. 76 Fed. Reg. 50490. Public comment on the CCP and a companion draft environmental impact statement will be accepted until November 14. The CCP governs how ANWR will be managed for the next 15 years. Among the alternative it proposes are inclusion of parts of ANWR in the National Wilderness Preservation System as well as inclusion of some of the rivers in the area in the Wild and Scenic Rivers System.

Opposition reportedly is growing to Uganda President Yoweri Museveni’s plan to turn over part of the protected Mabira Forest Reserve for development by a family of sugar magnates. The Mehta family is promising to create jobs by developing the land for sugar cane production and to build a road and a power plant. Environmentalists are outraged that the property transfer, first proposed several years ago, would be done without observing procedures required by existing laws. While President Museveni is framing it as a “jobs v. environment“ dispute, the opposition to the proposal is broadening to include many groups not normally aligned with environmental concerns as well as some members of Museveni’s own party. Frederick Golooba-Mutebi, Uganda: Nation Lines Up Against Museveni Over Protected Forest, The Nigerian Daily, Aug. 20, 2011.

“Jobs v. the environment” may become a prominent theme of Republican presidential candidates in the U.S. Many are bashing EPA for issuing “job-killing regulations” even as public opinion polls continue to show strong public support for the agency. John M. Broder, Bashing EPA Is New Theme in G.O.P. Race, N.Y. Times, Aug. 18, 2011, at A1. Texas Governor Rick Perry’s claims that climate scientists “have manipulated data so that they will have dollars rolling into their projects” and that “almost weekly or even daily scientists . . . are coming forward and questioning . . . man-made global warming” received “Four Pinnocchios” as whopping lies by Washington Post “Fact Checker” Glenn Kessler. Noting that five investigations into the East Anglia email hacking had exonerated the scientists involved, Kessler declared the “scandal to be a figment of Perry’s imagination.” When asked to substantiate the claim that scientists increasingly are questioning climate change, Perry’s campaign cited “The Petition Project” (http://www.petitionproject.org/) that claims 31,487 American scientists question climate change. The Fact Checker noted that the petition includes very few people with expertise in climate research, that 10 million people in the U.S. would qualify under the project’s broad definition of “scientists” (see http://www.skepticalscience.com/scrutinising-31000-scientists-in-the-OISM-Petition-Project.html), and that there have been virtually no new signers in the last three years. Glenn Kessler, “Rick Perry’s Made Up ‘Facts’ About Climate Change,” Washington Post, Aug. 20, 2011.

Last Sunday afternoon my former student Neal Kemkar, who works at the White House’s Council on Environmental Quality (CEQ), was kind enough to give my wife and I a private tour of the West Wing of the White House. White House staff are allowed to give such tours on nights and weekends when it will not interfere with other business being conducted there. Among the sites we visited were the Office of the Vice President, the White House Mess, the Rose Garden, the Cabinet Room, the Oval Office, and the Roosevelt Room. The Situation Room, where the famous photo was taken of President Obama monitoring the raid that killed Osama bin Laden, is not on the tour, but it is directly across from the White House Mess and as staffers entered and exited it was possible to get a brief glimpse inside of what is a surprisingly small room crammed with technology. Outside of the Cabinet Room is the “Blackberry basket” where all cabinet officers must leave their cellphones prior to entering cabinet meetings. As cabinet officers enter the room, a White House staffer posts stickies on each cellphone to identify its owner. The highlight of the tour is the Oval Office. President Obama has placed busts of Abraham Lincoln and Martin Luther King on the wall opposite his famous desk that is made from timbers of the HMS Resolute. One of the three original copies of the Emancipation Proclamation is above the bust of King. A bowl of Washington apples, delivered fresh each day, sits on the table between couches.

New Casebook Website, Suu Kyi Protests Dam, U.S. Environmental Politics, Japan "Astroturf" Scandal, DOE Fracking Report (by Bob Percival)

2011-08-14T19:42:00.000-07:00

Tomorrow I am launching a new website for my environmental law casebook (Environmental Regulation: Law, Science and Policy). The URL for the site is simply the acronym for the title of the casebook: www.erlsp.com. The site contains comprehensive updates for the material in the 6th edition of the casebook, which has been the most popular environmental law casebook used in U.S. law schools. By creating my own website that I personally maintain I am now freed of dependence on the University of Maryland campus IT department (hurray!), which will enable me to post frequent updates instantly from wherever I am in the world. The new 7th edition of the casebook will be published by Aspen Law and Business in early summer of 2012. Aspen has just launched an electronic version of the casebook, which is available through through Aspen’s SmartBooks program (https://www.brainshark.com/WKLB/vu?pi=zEwzmRA44z2C9Vz0). The 2011-2012 edition of my Statutory and Case Supplement arrived in book stores last week (I saw the first copy at Georgetown’s bookstore even before I received a copy from Aspen).

Aung San Suu Kyi, winner of the 1991 Nobel Peace Prize and long-time leader of Myanmar/Burma’s democratic opposition, has joined a campaign to protest China Power Investments’s construction of the Myistone Dam on the Irrawaddy River. Tension Over Dam Project Shifts Myanmar’s Politics, Wall St. J., Aug. 13, 2011. The NGO Burma Rivers Network leaked a copy of a 945-page environmental impact assessment prepared jointly by Burmese and Chinese scientists in 2009 that recommended that the project be scrapped. The project has been strongly opposed by many Burmese villagers who are being relocated due to its construction. They argue that it will cause enormous environmental damage and social dislocation while largely benefiting Burma’s authoritarian military government by increasing its revenue from cross-border sales of electricity to China.

This week’s Republican presidential debate in Iowa illustrated the bizarre state of environmental politics in the U.S. today. The Republican candidates in the debate (including even former Governor Huntsman, who says “conservation is conservative” and claims to take climate change seriously) decried overregulation and sought to demonize EPA as a voracious, “job-killing” agency bent on regulatory overreach. Yet as attorney John D. Walke of the Natural Resource Defense Council points out on his blog (http://switchboard.nrdc.org/blogs/jwalke/out-of-control_criticism_of_ep.html) , most of EPA’s regulatory actions are mandated by law, many to correct actions by the Bush EPA that were struck down by the courts as illegal. Even as Republicans denounced President Obama as anti-business, on August 9 President Obama announced a landmark agreement supported by the trucking industry and truck manufacturers to require heavy trucks to improve their fuel economy by up to 20% by the 2018 model year. It is estimated that the agreement will save 530 million barrels of oil over the lifetime of trucks built from the 2014 to 2018 model years. The industry groups reportedly were attracted to the initiative because it will harmonize federal and California fuel efficiency standards. Mark Clayton, Cheers All Around as Obama Sets Fuel Efficiency Goals for Big Trucks, Christian Science Monitor, August 9, 2011.

What explains the new anti-environmental orthodoxy where Republican presidential candidates attack each other for previously supporting cap-and-trade programs to control greenhouse gas emissions? Washington Post business columnist Steven Pearlstein blames business leaders for bankrolling what has spun into an out-of-control anti-regulatory campaign. In today’s Washington Post he writes: “When it started out, all you really wanted was to push back against a few meddlesome regulators or shave a point or two off your tax rate, but you were concerned it would look like special-interest rent-seeking. So when the Washington lobbyists came up with the clever idea of launching a campaign against over-regulation and over-taxation, you threw in some money, backed some candidates and financed a few lawsuits.” But then it morphed into “hundreds of millions of the shareholders’ dollars, laundered through once-respected organizations such as the Chamber of Commerce and the National Association of Manufacturers, phony front organizations with innocent-sounding names such as Americans for a Sound Economy, and a burgeoning network of Republic PACs and financing vehicles.” Coupled with the Supreme Court’s Citizens United decision that removed limits on corporate campaign spending, the result was the election of “Frankenpols” who turned what “started out as a reasonable attempt at political rebalancing . . . into a jihad against all regulation, all taxes and all government, waged by right-wing zealots who want to . . . shut down the regulatory agencies that protect you from unscrupulous competitors . . .”. Steven Pearlstein, Who’s To Blame for this Mess? Let’s Start with the Corporate Lobby, Wash. Post, Aug. 14, 2011,at G1.

The prospect for Japan restarting some of its undamaged nuclear reactors dimmed last week with the disclosure by a whistleblower at Kyushu Electric Power Co. that some of Japan’s largest electric companies had collaborated with government officials to stage manage public forums on the issue. Their activities allegedly included organizing phony “astroturf” groups to pack public fora with utility employees, planting questions, and coordinating email drives. The disclosures, which include allegations of document destruction to cover up the campaign, generated considerable public outrage in Japan. Chester Dawson, Scandal Taints Japan Nuclear Sector, Wall St. J., Aug. 13, 2011. Private citizens are now taking their own radiation readings and uploading them on public websites. Hot Concern, The Economist, Aug. 13, 2011, at 39. Last week Tokyo Electric Power, owner of the stricken reactors, began constructing a giant tent around them to contain the spread of radioactive contaminants, even as the Japanese government moved toward shrinking the size of mandatory evacuation areas around the crippled Fukushima Daiichi site. Mitsuru Obe, Japan Moves to Narrow Some Evacuation Areas, Wall St. J., Aug. 10, 2011.

On August 11 the Secretary of Energy’s Advisory Board (SEAB) Shale Gas Production Subcommittee issued a draft 90-day report on the rapidly growing use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. Bobbie Brown & Ian Urbina, Panel Seeks Stiffer Rules for Drilling of Gas Wells, N.Y. Times, Aug. 11, 2011, at A12. The report recommended measures to reduce the environmental impact of “fracking,” including greater monitoring and public disclosure of information about fracking, new controls on air emissions from fracking operations, the adoption of best management practices in well development and construction and the use of a manifest system for water transfers. A copy of the report is available online at: http://www.shalegas.energy.gov/resources/081111_90_day_report.pdf.

A special advertising supplement to the New York Times sponsored by Rossiskaya Gazeta, the Russian government’s paper of record, profiled the rise of environmental activists in Russia. Vladimir Ruvinsky, Out of the Woods a New Opposition, Russia Beyond the Headlines, Aug. 12, 2011, at 2. The article highlighted the efforts of former suburban working mother Evgenia Chirikova and her lawyer Alexei Navalny to try to stop construction of a road through the Khimki Forest. It noted Chirikova’s concern about the extent to which Russia respects the rule of law in light of numerous attacks on environmental activists. Apparently Russian officials believe that publicizing the work of public interest environmental activists will improve Russia’s image in the U.S.

Yesterday I stopped in a Borders bookstore to observe the progress of the chain’s going-out-of-business sale. The advertised 30% discount already had left the travel section of the store severely depleted of books. The travel book that remained in greatest supply appeared to be a guide for touring Syria - not a surprise in light of current events.

Japan Nuclear Compensation Fund, Frank-Dodd & Conflict Minerals, UNEP Nigeria Oil Contamination Report (by Bob Percival)

2011-08-08T20:52:00.000-07:00

On August 3 the Japanese Parliament passed legislation to create a fund to compensate the victims of the Fukushima Daiichi nuclear accident. Under the legislation the Japense government will make an initial contribution of $26 billion to the fund and other Japanese power companies also will contribute. With most of Japan’s nuclear power plants currently shut down, extraordinary measures to reduce consumption of electricity are being employed in Japan. Momentum seems to be building for keeping the reactors shut down. Last week three top Japanese nuclear regulators were fired by Prime Minister Naoto Kan for being too close to the industry and survivors of the World War II nuclear attacks on Hiroshima and Nagasaki joined the opposition to nuclear power. Martin Fackler, Atomic Bomb Survivors Join Nuclear Power Opposition, N.Y. Times, Aug. 7, 2011, at A11.

The conflict minerals provisions of the Frank-Dodd legislation appear to be having a dramatic impact as exports of tin, tantalum and tungsten from the Congo region have dropped by more than 70% in the last year. The legislation requires companies to certify to the SEC what steps they have taken to ensure that their supply chains for such minerals are not funding armed conflicts in the area. While proponents of transparency initiatives are working to establish certification procedures, apparently many companies simply are opting to acquire their minerals from other parts of the world even if they are more expensive there This allegedly is harming legitimate mineral suppliers from the Congo region. David Aronson, How Congress Devastated Congo, Aug. 8, 2011, at A17.

As mentioned last week, I was interviewed for a story about the legal challenge by foreign airlines in the European Court of Justice to the EU’s requirement that all flights to and from EU countries be subject to limits on greenhouse gas (GHG) emissions. The article appear in the online edition of the New York Times last Tuesday. Lawrence Hurley, Airlines Face Uphill Battle in E.U. Emissions Cases, Legal Experts Say, New York Times, August 2, 2011 (http://www.nytimes.com/gwire/2011/08/02/02greenwire-airlines-face-uphill-battle-in-eu-emissions-cas-9359.html?ref=earth). The European experts interviewed for the article think the legal challenge has very little chance of succeeding.

On August 4 the UN Environment Programme released its long-awaited assessment of oil contamination of the Ogoniland region in Nigeria’ Niger Delta. The report concluded that the contamination from repeated oil spills in the area has caused widespread environmental damage and health risks and could take decades to clean up. The complete report can be downloaded at: http://www.unep.org/nigeria/ A copy of the executive summary is available online at: http://postconflict.unep.ch/publications/OEA/UNEP_OEA_ES.pdf

My former student Brooke O’Hanley, who now lives in California, was in D.C. for a conference last week. Prior to starting law school, Brooke was a pro soccer player for the Carolina Courage when they won the WUSA Championship in 2002. After playing soccer with my son on Monday, Brooke and I went to Nationals park to see Washington beat Atlanta. On Tuesday night we went to the White House for a special tour of the West Wing arranged by my former student Neal Kemkar who now works for CEQ. However we had horrendous luck because a fence jumper caused a security lockdown at the White House that resulted in our tour being canceled. Still it was great to catch up with Neal and Brooke over beers at a nearby watering hole. On August 2 I had lunch with Maryland alum Jacob Scherr, director of Global Strategy and Advocacy for the Natural Resources Defense Council (NRDC). Prior to lunch he gave me a brief tour of NRDC’s new D.C. offices on 15th Street next to the Washington Post and across the street from the Madison Hotel. Jacob is working on preparations for the Rio+20 Earth Summit in June 2012. On Friday I moved into my office at the Georgetown University Law Center where I will be teaching Environmental Law this fall as a visiting professor of law.

Fuel Economy Accord, Global Fracking, Japan Conservation, EU Aviation GHG Rules, Riders & Huntsman (by Bob Percival)

2011-07-31T18:09:00.000-07:00

On Friday July 29 the Obama administration announced an agreement with automakers to support further substantial increases in federal fuel economy standards for new motor vehicles. Thirteen automakers support the proposal gradually to increase the standards to 54.5 miles per gallon (mpg) by 2025. The current fleet average standard is 27.3 mpg, rising to 35.5 mpg by 2016. Significantly, the plan has the support not only of U.S. automakers, but also of many foreign companies, although Volkswagen and Daimler AG declined to support the plan. The deal was sealed when the Obama administration agreed at the last minute to abandon a more ambitious 56.2 mpg target and to revisit the standards mid-way through their implementation to determine if they are too strict or too lenient in light of fuel prices, consumer behavior, and the state of technology. Toyota, General Motors, Ford, Chrysler, Honda, Hyundai, Mazda, Nissan, BMW, Jaguar, Kia, Mitsubishi and Volvo reportedly support the plan. Angela Greiling Keane, Automakers Agree to 54.5 MPG Fuel Economy Rule, Obama Says, Bloomberg Business Week, July 29, 2011. It is estimated that over the life of the program the stronger standards will save 12 billion barrels of oil, reduce CO2 emissions by 6 billion tons, and save consumers an average of $8,200 in fuel purchases over the life of vehicles purchased in 2025. Further details are available online at: http://www.whitehouse.gov/sites/default/files/fuel_economy_report.pdf. This agreement represents a kind of global regulatory negotiation that should help defuse legal challenges to the increase in fuel economy standards.

Eighteen months ago this blog ((Jan. 23, 2009 blog post) reported on a new tactic for opposing the flurry of midnight anti-environmental actions by the outgoing Bush administration. On Dec. 19, 2008 Tim DeChristopher, a University of Utah student protester, spontaneously entered a Bureau of Land Management (BLM) auction of lease for oil drilling on federal lands near Bryce and Canyonlands National Parks. DeChristopher outbid oil companies for 22,500 acres of the leases. Although the auction was later declared illegal due to BLM’s failure to conduct necessary environmental reviews, DeChristopher was prosecuted and convicted for making false statements on the ground that he was not a legitimate bidder. Last week a Utah federal court sentenced DeChristopher to two years in prison and a $10,000 fine. Environmentalist Bill McKibben described the sentence as an “unconscionable” punishment for an act of conscience. “It's as if [Martin Luther] King, who was DeChristopher's age when he launched the Montgomery bus boycott, had been charged with defrauding the bus company.”

On July 27 the Arkansas Oil and Gas Commission ordered a shutdown of some disposal facilities for hydraulic fracturing fluid in the state and a ban on construction of new facilities due to concerns that underground injection of these fluids had contributed to hundreds of small earthquakes that occurred in central Arkansas last year. After a six-month moratorium on new disposal facilities, the Arkansas Geologic Survey found a correlation between the earthquakes and the use of the disposal facilities. Concerns that fracking operations have contributedto earthquakes also are surfacing in Europe, causing delays in fracking operations in Blackpool, England. Guy Chazan, Fracking Pioneers Pierce Europe, Wall St. J., July 28, 2001. In an editorial comparing the fracking boom in Pennsylvania to New York’s more precautionary approach to regulating fracking, the Wall Street Journal denounced New York’s approach as a product of “obsessions of rich, big-city greens [that] explain why parts of upstate New York are the new Appalachia.” A Tale of Two Shale States, Wall St. J., July 26, 2011. On July 28 EPA proposed the first national rules to control emissions of air pollutants from fracking operations. Deborah Solomon & Tennille Tracy, EPA Unveils Air Quality Rules for Natural-Gas Fracking, Wall St. J., July 29, 2011.

Due to public concern about the tsunami-induced nuclear accident in Japan, only 16 of that country’s 54 nuclear power plants are currently in operation. This has dramatically reduced electric power production in Japan, forcing extraordinary conservation measures including setting air conditioners at 82 degrees and shifting auto production to weekends. Surprisingly, consumption of electricity has dropped so substantially that the country has power to spare. Peter Landers, Japan Snaps Back With Less Power, Wall St. J., July 29, 2011, at A1. Mikio Katayama, president of Sharp Electronics, Japan’s largest supplier of solar panels, believes that the post-accident investment climate is much more favorable for renewables. However, he notes that China’s current inventories of solar panels are said to be larger than the world’s entire demand for solar power this year. Juro Osawa, Sharp President Pushes Solar Power in Japan’s Nuclear Wake, Wall St. J., July 25, 2011, at B6.

This week I was interviewed by Greenwire about the fascinating litigation in the European Court of Justice by international airlines challenging the requirement that they participate in the EU’s emissions trading scheme for greenhouse gases (GHGs) beginning on January 1, 2012. The airlines are arguing that the EU has violated international law by attempting to regulate extraterritorial emissions (the regulations apply to emissions from all flights that depart from or arrive in the EU). They maintain that the appropriate vehicle for dealing with the growing problem of GHG emissions from aviation is the Convention on International Civil Aviation, known as the Chicago Convention.

Republicans in the U.S. House of Representatives last week added 39 anti-environmental riders to appropriations legislation for the U.S. EPA and Department of Interior. Leslie Kaufman, House Republicans Try to Curb Environmental Rules, N.Y. Times, July 28, 2011, at A16. But one Republican presidential candidate sought to distance himself from the House’s anti-environmental orgy. Speaking on July 28 to the 2nd Annual Theodore Roosevelt Dinner held by Republicans for Environmental Protection, former U.S. Ambassador to China Jon Huntsman declared that “Conservation is conservative.” Huntsman, who has pointedly refused to join other Republican candidates in reversing their prior support for measures to combat climate change, argued that “science should be driving our discussion” on this issue. Outside the Washington hotel where Huntsman spoke, climate change deniers displayed a digital billboard labeling him “Utah’s Al Gore” while Democrats criticized Huntsman for backing away from his previous support for a regional cap-and-trade program.

On Friday July 29 I attended the Washington Nationals/New York Mets game at Nationals Park with my friend Dan Guttman who is briefly back in the U.S. from China to teach summer courses. The Nationals’ starting pitcher was Chien-Ming Wang from Taiwan, who previously had pitched for the New York Yankees. He has been under contract to the Nationals for the last two years, but unable to pitch in the majors due to injuries. Prior to the game Taiwan’s representative to the U.S. Jason Yuan was on the field to be presented with a Wang jersey by Nationals manager Davey Johnson. Wang gave up four runs in the first inning before pitching well and the Nats lost 8-5, but bounced back to win the next two games agains the Mets. Wang will next pitch for the Nats on Wednesday.

IMO Regulates Vessel Emissions, TEL Journal, Light Bulbs, B.C. Carbon Tax (by Bob Percival)

2011-07-24T20:45:00.001-07:00

At its 62nd meeting in London, the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) adopted important new rules to reduce pollution from ships. The rules are amendments to Annex VI of MARPOL, the International Convention for the Prevention of Pollution from Ships that now has 150 member countries representing nearly all of the world’s shipping. Annex VI governs air pollution from ships. The new rules include an Energy Efficiency Design Index (EEDI) that generally will require new ships above 400 gross tons to reduce their pollution by improving their energy efficiency. Ships built between 2015-2019 will have to be 10% more energy efficient, increasing to 20% for ships built from 2020 to 2024, and 30% for ships built after 2025. To mollify developing countries who objected to the new requirements, it was agreed that such countries can elect to delay compliance by ships flying their flags for between four and six years. All ships will be required to have an International Energy Efficiency Certificate and a Ship Energy Efficiency Management Plan (SEEMP). In an editorial the New York Times praised the regulations as “a good step forward,” while warning that the delayed compliance waiver for developing countries was “a huge loophole.” “Changing Course,” New York Times, July 23, 2011.

I am very pleased to announce that an exciting new Transnational Environmental Law (TEL) journal will go online at the end of this year with a print version being published in April 2012. This peer-reviewed journal is the brainchild of Professors Thijs Etty from VU University Amsterdam and Veerle Heyvaert from the London School of Economics, who will serve as editors-in-chief. TEL, which is being published by Cambridge University Press, represents dramatic confirmation of the growth of global environmental law along the lines of the model repeatedly described in this website. I have agreed to serve on the new journal’s editorial advisory board. The editors notes that “TEL strives for a new generation of environmental scholarship that will bridge geographical boundaries, scholarly styles and generations.” For more information about this journal visit http://journals.cambridge.org/tel

While sharp disputes continue in the U.S. Congress over raising the debt limit and future U.S. spending and tax policy, the battle over more energy efficient light bulbs has assumed the dimensions of a cultural war. On July 22, the U.S. House of Representatives actually voted on an amendment that would have prohibited the federal government from installing or buying compact fluorescent light (CFL) bulbs for congressional offices. Authored by Representative Glenn “GT” Thompson (R-Pa.), the amendment was defeated by a vote of 283-130. Thompson, who actually opposed his party’s efforts to repeal the mandate for more energy efficient light bulbs, argued that incandescent bulbs give off better light, that CFLs are dangerous because they contain mercury, and that their production benefits non-U.S. manufacturers.

British Columbia’s carbon tax appears to be a big success. It has not damaged that province’s booming economy, where unemployment remains below, and economic growth above, the average for the rest of Canada. Nor has the tax, which began at C$10/ton of carbon emissions and will increase to C$30/ton next year, harmed the poor, since the proceeds are rebated back to individual taxpayers and companies in the form of lower taxes. Per captia fuel consumption has declined in British Columbia by 4.5%, significantly more than in the rest of the country. The carbon tax now has broad political support from voters and politicians in British Columbia, even as the province conducts a hard fought referendum on repeal of the harmonized sales tax (HST). “We Have a Winner,” The Economist, July 23, 2011, at 35.

An extraordinarily brutal heat wave gripped the U.S. this week. Years ago scientists were predicting that one consequence of global warming would be far more days when the temperature exceeded 100 degrees Fahrenheit in the Baltimore-/Washington area. The temperature in Baltimore on Friday hit a record 105 degrees . On Friday night Jane Barrett, director of Maryland’s Environmental Law Clinic, and I made our annual outing with our research assistants and clinical fellows to Camden Yards to watch the Orioles play the Los Angeles Angels. Temperature at game time was 100 degrees. To help the fans combat the heat, the Orioles provided free ice and had a “misting tent” set up. The temperature was still over 90 degrees when the game finished with a 6-1 victory for the Angels.

Attack on Light Bulb Efficiency Mandate, New Indian Environment Minister, IWC Meeting, 7th Circuit Rejects Kiobel (by Bob Percival)

2011-07-18T09:12:00.000-07:00

Republicans in the U.S. House of Representatives tried this week to repeal the energy efficiency mandate for light bulbs that was enacted with bipartisan support in the Energy Independence and Security Act of 2007. The Better Use of Light Bulbs (BULB) Act, sponsored by Congressman Joe Barton (R-Tex.), would have repealed the mandate to improve light bulb energy efficiency by 27-29% through 2014 and by 60-70% by 2020. These mandates are expected to phase out highly inefficient incandescent light bulbs that waste 80 percent of their energy in creating heat rather than light. Congressman Fred Upton (R-Ill.), who had sponsored the mandates in 2007, now supported the effort to repeal them. When it was brought up under special rules on July 12 that required two-thirds approval, the repeal effort failed by gaining a majority of only 233-193. Later in the week an appropriations rider that would delay the mandates from January 1 to October 1, 2012 was adopted by voice vote in the House. It would prohibit the federal government from spending any money to enforce the mandates during the next fiscal year. The National Electrical Manufacturers Association opposed efforts to change the mandates because it would penalize companies that have made investments in anticipation of the new rules taking effect.

On July 12 outspoken Indian Minister of Environment and Forests Jairam Ramesh was removed from his position by Indian Prime Minister Manmohan Singh. Press reports suggest that the move was motivated by the Prime Minister’s desire to speed up development projects that Ramesh had placed on hold for failure to comply with environmental requirements. Amol Sharma, India Fires Environment Minister Who Held Up Projects, Wall St. J., July 13, 2011. Succeeding Ramesh as the new Minister of Environment and Forests is Jayanti Natarajan. Ramesh was “promoted” to oversee the cabinet-level Ministry of Rural Development. Environmentalists are cautiously optimistic that Natarajan will prove to be a worthy successor to Ramesh.

Last week the International Whaling Commission (IWC) held its 63rd annual meeting on the Channel Island of Jersey. Fifty-four of the 89 countries that are members of the Commission (with Colombia being the latest to join) were present for the commission of the meeting. The Commission made no changes to the present limits on aboriginal subsistence whaling. It adopted a resolution condemning any actions at sea that create risks to human life and property. The Commission deferred action on a proposal to create a South Atlantic Sanctuary after it became apparent that the necessary support of three-quarters of the voting members was lacking. Next year’s meeting will be held in Panama from June 11 to July 6, 2012, but after that meeting the Commission is likely to meet only once every two years and it may start to hold meetings of the Scientific Committee separately from, and in advance of, the Commission meeting.

Within days of each other, two U.S. Courts of Appeals expressly rejected the conclusion by the Second Circuit in its September 2010 Kiobel decision that corporations cannot violate the law of nations and thus are immune from liability under the Alien Tort Statute (ATS). As noted in last week’s blog post (July 11), on July 8 the D.C. Circuit ruled in Doe v. ExxonMobil Corp., No. 09-7125, that corporations can be held liable under the ATS for aiding and abetting actions by governments in violation of the law of nations. On July 11 the Seventh Circuit, in an opinion written by Judge Richard Posner, also rejected Kiobel. In Flomo v. Firestone Natural Rubber Co., No. 10-3675 (7th Cir.), the court recognized that the issue of corporate liability under the ATS “seems to have been left open” by the U.S. Supreme Court “in an enigmatic footnote in Sosa, 542 U.S. at 732 n.20.” However, Judge Posner then expressly rejected Kiobel’s premise that because corporations have never been prosecuted for violating customary international law there cannot be any principle of customary international law that binds a corporation. First, he noted that the allied powers used customary international law to dissolve German corporations that had assisted the Nazi war effort. Second, he concluded that even if such prosecutions have been rare, that does not mean that corporations are exempt from customary international law. While opining that corporate liability would be extended too far if companies were strictly liable for anything that an employee did in a developing country, Posner stated that there was no problem holding companies liable for violations “directed, encouraged or condoned at the corporate defendant’s decisionmaking level.” (The plaintiffs in Flomo allege that Firestone used child labor on its rubber plantations in violation of customary international law). Judge Posner declared that an argument that it would be “bad for business” to hold corporations liable under the ATS, was “irrelevant, but not obvious,” noting that companies that do not use child labor are hurt when competitors are not held liable for doing so. However, the Seventh Circuit panel ultimately concluded that there was insufficient evidence to hold Firestone liable for violation of customary international law.

9th IUCN Academy Colloquium, David Getches, D.C. Circuit Rejects Kiobel, Australia Carbon Tax (by Bob Percival)

2011-07-11T16:36:00.001-07:00

I returned to the U.S. over the weekend after participating in the 9th annual Colloquium of the IUCN Academy of Environmental Law in South Africa. The Colloquium was held from July 3-7 at the Mpekweni Beach Resort east of Port Elizabeth on the southern coast of South Africa. The theme of this year’s colloquium was “Water and the Law: Towards Sustainability.” In keeping with the theme, the conference featured several days of heavy rain, broken by brief bursts of sunshine, something that was supposedly quite unusual in this very dry part of South Africa. Despite the remote location, by my count the Colloquium had 150 participants from 30 countries.

On July 4 I chaired a session of the conference on “Climate Change and Water Management,” which featured presentations by Linda Malone from William & Mary, Antia Foerster from the University of Melbourne, Jose Juan Gonzalez from the Universidad Autonoma Metropolitana in Mexico City, and Rob Fowler from the University of South Australia. On Tuesday night the colloquium featured a winetasting of South African wines. I contributed a bottle of Zevenwacht gewurztraminer that I had purchased while doing a one-day tour of the Cape Winelands in Stellenbosch, Franschhoek and Paarl on the previous Saturday.

Shortly before I was due to give my talk on Wednesday on “Transboundary Water Management and the Emergence of Global Environmental Law,” I was greatly shocked and saddened to learn of the death of David Getches, dean of the University of Colorado School of Law. David was one of the real giants in the field of environmental law and also a truly wonderful human being. I last communicated with him in March when he very kindly invited me to visit at Colorado next year. Although my prior commitments precluded such a visit, I shared with him my fondness for the Rocky Mountains born from many childhood summers in Rocky Mountain National Park. I thought it only fitting at the start of my presentation to the Colloquium to pay tribute to David. The audience from all over the world immediately responded by expressing their enormous regard for him.

I have attended eight of the nine Academy Colloquium (all but the first one that was held in Shanghai in 2003 on very short notice) and once again it was a terrific experience. Nearly 100 high quality presentations were made and the opportunities to network and exchange views with environmental law scholars from all over the world were invaluable. The U.S. law schools represented at the Colloquium included Maryland, Lewis & Clark, Pace, Widener, Willamette, and William & Mary. More are likely to participate in the 10th Colloquium, which will be held next year from July 1-5 at the University of Maryland School of Law. The theme for next year’s colloquium, which will be held one month after the Rio+20 Earth Summit will be “Global Environmental Law at a Crossroads.” For more information about this theme and the 10th Colloquium visit: http://www.law.umaryland.edu/iucnael2012.

At the closing plenary session I was invited to give a presentation on plans for the 10th Colloquium. We are planning several great events, including an opening dinner at the National Aquarium, a crab cruise on Baltimore Harbor during the 4th of July fireworks celebration, our program’s annual winetasting event, and a field trip to an Orioles game (schedule permitting). In addition we will be hosting an international environmental law film festival. To show how easy it is to make a film, while at the 9th Colloquium I made a film trailer promoting the 10th Colloquium that I showed during the closing plenary. It features clips of participants in the 9th Colloquium urging everyone to “Come to Maryland” in more than 20 different languages. A copy of the trailer is online at: http://law.umaryland.edu/iucnael2012.

The schedule for future colloquia was announced at the 9th Colloquium. In 2013 the 11th Colloquium will be held at the University of the South Pacific in Vanuatu. In 2014 the 12th Colloquium will be held at the University of Taragona in Catalonia. On the way to the airport on July 8, I joined many conference participants in a terrific tour of Addo Elephant National Park near Port Elizabeth. We saw lots of wildlife, including elephants, antelope, zebras, eiland, and warthogs. Photos of my trip to Africa, including the visit to Robben Island, the tour of the Cape WInelands and the trip to Addo Elephant National Park, are available online at: http://gallery.me.com/rperci#100879

On July 9 the U.S. Court of Appeals for the D.C. Circuit held that corporations can be held liable for violations of the law of nations. In Doe v. ExxonMobil Corp., No. 09-7125 (D.C. Cir. July 9, 2011), the court by a 2-1 vote rejected the Second Circuit’s Kiobel decision that had held that corporations are incapable of violating the law of nations. Plaintiffs in the case inclued villagers from the Aceh territory of Indonesia who alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), and various common law torts. In an opinion by Judge Rogers, joined by Judge Tatel, the court held that “neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.” The court affirmed the dismissal of the TVPA claims, but reversed the district court’s holding that the plaintiffs lacked prudential standing to bring their non-federal tort claims. Judge Kavanaugh dissented. The decision creates a clear conflict with the Second Circuit’s Kiobel decision, making it increasingly likely that the Supreme Court will have to decide whether corporations can be held liable under the Alien Tort Statute for violating the law of nations. The decision also rejects the trial court’s suggestion that non-resident aliens automatically lack prudential standing to sue because they are not within the zone of interests protected by U.S. law. A copy of the decision is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/567B411C56CD7A6F852578C700513FC8/$file/09-7125-1317431.pdf

On July 10 Australian Prime Minister Julia Gillard proposed a carbon tax of 23 Australian dollars per ton on Australia’s top 500 emitters of greenhouse gases. The tax, which would go into effect in mid-2012, would increase by 2.5% per year until 2015 when a market-based emissions trading scheme will go into effect.

Belated July 3 Post -IUCN South Africa Colloquium, Eskom Protest, Supreme Court Wetlands Case, German Nuclear Power Phaseout (by Bob Percival)

2011-07-11T16:33:00.000-07:00

This post was written on July 3, but due to poor internet connections in rural South Africa, it was not posted until July 11.

I am in South Africa now for the annual Colloquium of the IUCN Academy of Environmental Law. This year for the first time the Colloquium is being co-sponsored by four South African law schools - North-West University, the University of Cape Town, the University of Kwa-Zulu Natal, and the University of Witwatersrand. It is being held in a rather remote part of the South African coast at the Mpekweni Beach Resort several hours east of Port Elizabeth. I arrived at the resort today after spending three days in Cape Town. (Because of the poor internet access, I was not able to post this report until July 11).

While in Cape Town I visited Robben Island, the island several miles off the coast where Nelson Mandela was imprisoned for 18 years. A high-speed ferry takes one-half hour to reach the island where visitors are placed on buses for a tour. Now that the prison has closed down, the island is somewhat of a nature reserve and we spotted a group of penguins from the bus. The bus stopped at important sites on the island including the limestone quarry where Mandela and his fellow political prisoners were forced to work for many years. The bus then ends up at the prison where visitors are given a tour led by a former inmate who also was a political prisoner. The tour includes a visit to the cell where Mandela was held. Shortly after I got off the bus I heard someone call my name and discovered that it was Charles Di Leva, chief counsel for the Environmental and International Law Unit of the World Bank. Charles and other World Bank officials were in Cape Town for the 2011 Climate Investment Fund (CIF) Partnership Forum, hosted by the African Development Bank. At the CIF Forum, which was held at the convention center across the street from the hotel where I was staying, new initiatives were announced to promote renewable energy development in Africa, including a concentrated solar powerplant in Morocco.

The day before I arrived in South Africa, Greenpeace protested the construction of two large new coal-fired powerplant by South African electric utility Eskom by dumping three truckloads of coal in front of Eskom’s headquarters in Johannesburg. Eskom is planning to build the 4,800-megawatt (MW) Kusile plant and the 4,788 MV Medupi plant. The World Bank has helped fund the project, which has been heavily criticized by environmentalists for increasing greenhouse gas emissions. Eskom and the Bank argue that South Africa needs to exploit its extensive coal resources and that the plants will use highly efficient super-critical combustion technology. Greenpeace activists argue that Eskom has made only token investments in renewable energy, including 100 MV of wind power and 100 MV of solar. South Africa, which is growing rapidly, relies on coal for 90% of its electrical generation. While Eskom had hoped to build more nuclear powerplants, the Japanese nuclear accident has cast those plans into doubt.

On July 1 the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to the Obama administration’s effort to kill Yucca Mountain, Nevada as a repository for storing the country’s high-level radioactive waste. The court held that the lawsuit brought by three state and local governmental units in South Carolina and Washington state was not ripe for judicial review until the Nuclear Regulatory Commission (NRC) takes final action that is judicially reviewable. In Re Aiken County, No. 10-1050 (D.C. Cir. July 1, 2011). Even though the U.S. Department of Energy has withdrawn its license application for Yucca Mountain on orders from President Obama, the judges noted that since the NRC is an independent agency, the final decision on the matter rests with the NRC and not the president.

On June 27, the last day of its October 2010 Term, the U.S. Supreme Court agreed to decide another environmental case. The Court granted review in Sackett v. U.S. Environmental Protection Agency, No. 10-1062. The case involves the question whether a failure to grant a hearing to challenge a wetlands determination under §404 of the Clean Water Act prior to EPA’s issuance of a compliance order is a violation of the Administrative Procedure Act (APA) or a denial of due process. The Ninth Circuit had upheld a district court decision that the Clean Water Act precludes pre-enforcement review of compliance orders. The Court’s decision to review the case is somewhat surprising in light of its refusal to hear a similar issue involving pre-enforcement review under CERCLA (see June 12 blog post).

On June 30 the German Parliament overwhelmingly approved the government’s plan to shut down all the country’s nuclear powerplants by the year 2022. The vote in favor of the government’s plan was 513-79. The decision represents a dramatic change in the government’s policy, which previously had supported extending the operating life of existing nuclear powerplants until this year’s nuclear accident in Japan. It will require Germany to be even more aggressive in the development of renewable energy sources. By 2020 Germany plans to generate 35% of its energy from hydro, wind, solar and biogas projects.

INECE Conference, Chilean Dams, Rotterdam COP-5, Asbestos Use in Asia (by Bob Percival)

2011-06-26T21:14:00.000-07:00

On Friday I returned to D.C. after spending the week in Whistler, British Columbia at the 9th Conference of the International Network for Environmental Compliance and Enforcement (INECE). The conference was a remarkable gathering of nearly 200 environmental enforcement officials and NGO representatives from 46 countries. One could see visible evidence of the growing networks that are forming to enhance coordination of environmental enforcement throughout the world. One theme that was discussed was how reductions in government enforcement budgets have increased the importance of global cooperation among regulators and NGOs as agencies seek to employ new and creative means for improving environmental compliance. Criminal enforcement of environmental laws is still in its infancy in many countries, but the U.S. EPA recently hosted enforcement officials from 11 countries for a conference on the use of forensic evidence in the prosecution of environmental crimes. Other themes emphasized by presenters included the importance of reducing bureaucratic barriers to the transboundary sharing of information among enforcement officials and the need for environmental officials to work closely with Customs and border enforcement personnel. I served as the rapporteur for a session on the role of academic institutions in environmental compliance and enforcement networks. Photos from my trip to Vancouver and Whistler are available online at: http://gallery.me.com/rperci#100866.

As mentioned last week (see June 21 blog post), the Chilean government’s plan to build the $3.2billion HidroAysén hydropower project involving the construction of five dams in Patagonia has been the subject of considerable public protest in that environmentally-conscious country. A Chilean appeals court has now blocked the project on the ground that the government commission that approved it had not adequately considered its environmental impact.

On June 22 the International Energy Agency, a consortium of oil-consuming countries, announced that it would release two million barrels of oil per day during the month of July from reserves maintained by member countries. Half of this 60 million barrels of oil will come from the U.S. Strategic Petroleum Reserve. Members of the Organization of Petroleum Exporting Countries (OPEC) decried the move as an unwarranted interference with oil markets, an ironic comment from a cartel. The IEA argued that its move was justified by the disruption of oil exports from Libya due to the continuing conflict there.

The Chinese government reportedly suspended an expected $4 billion purchase of aircraft by Hong Kong Airlines from Airbus that was to be announced this week at the Paris Air Show. The reason? -- China’s displeasure with the EU’s insistence that beginning in January all airlines flying to EU countries take part in the EU’s carbon emissions trading scheme. Daniel Michaels, China Trips Up Major Airbus Deal, Wall St. J., June 25-26, 2011, at B3. On July 5 the European Court of Justice will hear a lawsuit by a group of U.S. airlines challenging the plan, which the EU had hoped would spur other countries to adopt similar plans.

Last week the fifth conference of the parties to the Rotterdam Convention on Prior Informed Consent met in Geneva. India’s representatives surprised the conference by announcing that they had reconsidered their opposition to listing chrysotile asbestos as an Annex III hazardous substance. Although Canada’s representatives reportedly acknowledged the growing scientific consensus concerning the hazardous nature of chrysotile asbestos, they blocked the move to list it in Annex III. Only 450 people continue to be employed in mining asbestos in Canada, but there are plans to expands the Jeffrey Mine to meet increase demand for exports to India. Sarah Schmidt, Canada Concedes Science Against Asbestos Is Sound, Vancouver Sun, June 24, 2011, at B1. A study published in this month’s journal of the Asian Pacific Society of Respirology estimates that asbestos-related deaths will surge in Asia during the next two decades. Although Japan and South Korea have banned the use of asbestos, use of the deadly susbstance is growing in India and China. As a result, Asia now accounts for 64 perent of all asbestos use in the world. Giang Vinh Le, Ken Takahashi, Eun-Kee Park, Vanya Delgermaa, Chulho Oak, Ahmad Munir Qureshi, Syed Mohamed Aljunid, Asbestos Use and Asbestos-Related Diseases in Asia: Past, Present and Future. Respirology, June, 2011.

Supreme Court Decides Climate Case, INECE Conference, Little Progress at Bonn, China Workshop (by Bob Percival)

2011-06-20T08:35:00.001-07:00

Just 90 minutes ago the U.S. Supreme Court announced its decision in American Electric Power v. Connecticut. In a unanimous opinion by Justice Ginsburg the court reverses the decision by the U.S. Court of Appeals for the Second Circuit. Here is my early take on the decision. (1) Environmentalists dodged a bullet - by a 4-4 vote the Court affirms that courts have the constitutional authority and jurisdiction to hear common law nuisance suits by states seeking to address environmental problems. This will be a huge disappointment to industry groups who hoped the Court would declare climate change to be either a nonjusticiable political question or that the states lacked standing to sue over it. Justice Kennedy's vote likely was crucial here, because Justice Sotomayor had recused herself from the case. (2) While the Court unanimously dismisses the climate change case brought by Connecticut, it does so on the narrowest possible grounds - that EPA is already working to regulate greenhouse gas emissions and that it has the clear authority to do so. The latter point reaffirms the Court's narrow 5-4 holding in its 2007 decision that prompted EPA to regulate greenhouse gases. (3) The Court is careful to say that it is not deciding whether the federal Clean Air Act law displaces state common law actions, so actions like Connecticut's can still for now be brought in state court. It is a pleasant surprise that Justice Ginsburg, the Justice most sympathetic to environmental concerns, was assigned the opinion in this case. The outcome is somewhat of a victory for environmentalists, particularly in light of the gloomy forecasts following the oral argument. A copy of the Court’s decision is available at: http://www.supremecourt.gov/opinions/10pdf/10-174.pdf

Right now I am in Whistler, British Columbia for the 9th conference of the International Network for Environmental Compliance and Enforcement. Environmental enforcement officials and NGO representatives from more than 40 countries are here. The conference opened last night with a wonderful welcome from the Chief of the Squamish Nation, Gibby Jacobs, who spoke of the importance of environmental citizen suits to protecting native land. “If we have a right to the fish, the fish have a right to clean water,” he observed. He also spoke about how his tribe used a threat of direct action to preserve 1200 year old trees from being cut down. Brazilian Supreme Court Justice Antonio Benjamin followed with another inspiring talk in which he highlighted next June’s Rio+20 conference and asked people to dream of what it might be possible to accomplish during the next twenty years. Prior to arriving in Whistler, my wife and I spent two days in Vancouver where I introduced her to some of my favorite haunts from my summers teaching at UBC. Yesterday morning we kayaked from English Bay to Third Beach and then hiked through the rainforest at Stanley Park. There are lots of boarded-up windows in downtown Vancouver from the riot that occurred after the Canucks lost in Game 7 of the Stanley Cup. What is really inspiring, however, is that every inch of the plywood is now covered with expressions of opposition to the rioters, something that seems to have really mobilized the community.

On Friday two weeks of global climate negotiations in Bonn ended with little progress. Although some progress was made on technical issues such as carbon trading mechanisms, slowing deforestation and management of the global climate fund, the deadlock over commitments to reduce emissions continued. The next Conference of Parties (COP-17) to the UN Framework Convention on Climate Change will be held in Durban, South Africa from Nov. 28 to Dec. 9.

The decision by the government of Chile last month to approve a plan to build a large hydroelectric power project (HidroAysén) in a pristine area of Patagonia has sparked large environmental protests throughout Chile. Alexei Barrionuevo, Plans for Hydroelectric Dam in Patagonia Outrages Chileans, N.Y. Times, June 16, 2011. While the government argues that hydropower is the best option for fulfilling the country’s expanding demand for electricity, the environmental movement counters that Chile has done very little to encourage improved efficiency in energy use and renewables like geothermal power.

From June 13-15 the University of Maryland Environmental Law Program conducted an environmental law workshop for a delegation of Chinese environmental professionals who visited Maryland (see June 12 blog post). I presented lectures on the history of environmental law, pollution control law, and natural resources and biodiversity protection law. My colleague Jane Barrett gave terrific lectures on environmental enforcement, both civil and criminal. Our alum Andrew Gohn who is the Clean Energy Program Manager for the Maryland Energy Administration walked the group through the steps involved in developing offshore wind energy projects. Nat Keller gave a great lecture on the history of land use regulation in the U.S. We also had a fascinating session on the use of video advocacy by environmentalists presented by Jill Smith, Maryland’s Research and Instructional Technology Librarian, who made a short film to illustrate her lecture. Short presentations also were made on emerging issues in environmental law, including hydraulic fracturing, transnational liability litigation, NEPA and climate change, fisheries management, and control of nonpoint pollution.

I am delighted to report that the Kickstarter project mentioned in my May 23 blog post succeeded in raising the $60,000 needed to build an instructional kitchen for a D.C. public elementary school. Last Wednesday, the day of the deadline, more than $27,000 poured in to put the project over the top thanks in large part to the last-minute support from world famous chef José Andrés who made both a substantial contribution and an appeal to his 31,000 Twitter followers. I am amazed by the power of social media to mobilize 470 people from as far away as Australia to fund this project.

Romney Rejects Climate Denial, EU Reaffirms Airline Limits, Supreme Court Rejects Superfund Challenge, Japan Fallout, China Workshop (by Bob Percival)

2011-06-12T20:49:00.000-07:00

Republican presidential candidate Mitt Romney confirmed last week that he believed that climate change is real, a sharp break with the rest of the field of announced Republican presidential candidates. Romney stated: “I don’t speak for the scientific community, of course. But I believe the world’s getting warmer. I can’t prove that, but I believe that based on what I read that the world is getting warmer. And number two, I believe that humans contribute to that.” While rejecting cap-and-trade, Romney stated that “It’s important for us to reduce our emissions of pollutants and greenhouse gases that may be significant contributors.” For this seemingly sane statement Romney’s chances of winning the Republican presidential nomination were officially declared dead by Rush Limbaugh and others, but it instead could be the sign of the first serious challenger to Obama emerging from the Republican field.

On Monday June 6 a representative of EU Climate Commissioner Connie Hedegaard reiterated the EU’s determination to require all airlines flying to the EU to participate in a cap-and-trade program for their greenhouse gas (GHG) emissions that will begin on January 1, 2012. Airlines will be required to pay a penalty of 100 Euros for each ton of GHG emissions in excess of their allocation. Non-EU airlines are bitterly opposed to the regulation, while EU-based airlines argue that all airlines must be covered or they will be at a competitive disadvantage. Jonathan Buck, Europe to Keep Airlines in Emissions-Trading Plan, Wall St. J., June 7, 2011, at B8.

On Monday June 6 the U.S. Supreme Court refused to review a decision by the U.S. Court of Appeals for the D.C. Circuit upholding the constitutionality of the Superfund cleanup process. Since the late 1990s the General Electric Company (GE) has been arguing that Superfund’s provisions precluding pre-cleanup judicial review of cleanup orders and authorizing treble damages against companies who improperly defy them denies due process of law. GE enlisted Harvard constitutional law professor Laurence Tribe to represent it early on in this crusade (as he did in 2000 when the company argued that the Clean Air Act was unconstitutional on non-delegation grounds) but it lost at every stage of this long-running litigation. The latest round of GE’s efforts to attack Superfund was championed by former Stanford law dean Kathleen Sullivan who represented industry groups in the Burlington Northern case that made it more difficult for the government to hold companies liable under Superfund as arrangers for disposal of hazardous substances.

A bitter battle seems to have broken out over proposals to eliminate a multi-billion dollar subsidy for ethanol blenders. Senator Tom Coburn has drawn the wrath of anti-tax crusader Grover Norquist for breaking ranks to support eliminate of this tax break, which he interprets as supporting a tax increase in violation of the right’s “pledge” never to raise taxes. The environmental community also supports elimination of the tax break.

Fallout continues from the Japanese nuclear accident. The Wall Street Journal reports that “an unofficial nuclear shutdown” is occurring in Japan as Japanese utilities who had nuclear powerplants temporarily shut down when the Fukushima Daiichi accident occurred are declining to restart them even if they were not directly affected by the accident. As a result, only 17 of Japan’s 54 nuclear reactors are now operating. Mari Iwata, Japan Expects Power Shortages Amid Growing, Unofficial Nuclear Shutdown, Wall St. J., June 10, 2011. German Chancellor Angela Merkel conceded last week that her country’s decision to return to its policy of phasing out nuclear energy will require the country to build an addition 10 to 20GW of fossil-fuel powerplants over the next ten years. Bernd Radowitz, German Nuclear Exit Raises Fossil-Fuel Needs, Wall St. J., June 10, 2011, at A12.

Today I accompanied a delegation of young Chinese environmental professionals to Camden Yards to watch the Baltimore Orioles play the Tampa Bay Rays. The delegation is part of a project sponsored by the National Committee on U.S.-China Relations. The group includes Ma Yong (Director of the Department of Inspection and Litigation of the All-China Environmental Federation’s Environmental Legal Services Center in Beijing), Professor Qin Tianbao from the Research Institute of Environmental Law at Wuhan University, Ms. Bo Xiaobo from the China University of Political Science and Law in Beijing, Ms. Hu Wei (an attorney with the Shanghai Debund Law Office), and Ms. Liu Xiaoying (a research fellow at Beijing Children's Legal Aid and Research Center). The group has spent the last two weeks visiting San Francisco, Atlanta and Washington. For the next three days they will be participating in an environmental workshop at the University of Maryland School of Law. Most of the group seemed to really enjoy the baseball game, which I often describe as the very best way for foreigners to experience a slice of truly American culture. The Os lost to the Ray 9-6.

Chinese Electricity Prices, MEP Report, C40 Meeting, French Debate Fracking Ban, Fordham Article (by Bob Percival)

2011-06-06T20:21:00.000-07:00

On Monday May 30 the Chinese government announced that it would increase electricity prices in response to power shortages that occurred when electric utilities cut back on power production due to the high price of coal. The price increases, which became effective on June 1, average approximately 3 percent.

On Friday June 3 the Chinese Ministry of Environmental Protection released its annual report. Despite reporting progress in reducing air and water pollution (a 19% drop in SO2 emissions and a 32% decrease in pollution of surface water), the report described environmental conditions in China as “very grave.” The report cited declining biodiversity and increasing pollution of the countryside as polluting industries were moved from cities to rural areas. Ian Johnson, China Agency Says Threat to Ecosystem is “Grave,” N.Y. Times, June 4, 2011, at A7. Li Ganjie, vice minister for the environment, noted that China needed to write new legislation to control heavy metal pollution. He also conceded that more than one fifth of the country’s nature reserves have been degraded by illegal development projects.

On Wednesday June 1 the World Bank signed an agreement with representatives from 40 large cities (the “C40”) meeting in Sao Paulo, Brazil to provide technical and financial assistance for local efforts to reduce emissions of greenhouse gases (GHGs). The agreement was hailed by New York Mayor Michael Bloomberg and former President Bill Clinton, who have joined forces to promote local initiatives to combat climate change. At present 58 large cities, with a population of 300 million people, that account for 12 percent of global GHG emissions, are participating in the C40 initiative. The World Bank will help the group employ standardized methods for measuring and reporting on GHG emissions to make it easier to attract financing for reduction projects.

On June 1 the French Senate began debate on legislation, approved last month by the French National Assembly, to ban the use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. “Fracking” has become a popular technology in the U.S. where it was exempted from regulation under the Safe Drinking Water Act in 2005. It has raised serious environmental concerns potential contamination of ground and surface water in light of the melange of chemicals injected deep underground to fracture rock formations and release gas deposits. On the very day the French Senate debate commenced, a British company announced that it temporarily would halt fracking operations due to concern that the practice had contributed to earthquakes near a test well. David Jolly, U.K. Company Suspends Controversial Drilling Procedure, N.Y. Times, June 1, 2011.

One little-noticed aspect of the G-8 Summit in France the week before last was a pledge by EU officials to consider replicating a controversial provision in the U.S.‘s Dodd-Frank Wall Street Financial Reform and Consumer Protection Act to require oil, gas and mining companies to disclose all payments to foreign governments. William MacNamara, Transparency Initiative Moves Forward in Deauville, FInancial Times, June 1, 2011. If such legislation is adoption, it should reduce the force of complaints by U.S. companies that Dodd-Frank’s requirements disadvantage them in global competition.

Today I received hard copies of the May 2011 issue of the Fordham Law Review where my article “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” appears. The article was a product of my presentation at a symposium on presidential powers held at Fordham last November (see Nov. 14, 2010 blog post). The symposium produced some great articles exploring a surprisingly uncharted area of law. A copy of my article, which reviews the constitutional and administrative law debate over the president’s authority to direct environmental regulations, can be downloaded at: http://www.fordhamlawreview.org/articles/who-s-in-charge-does-the-president-have-directive-authority-over-agency-regulatory-decisions.

Chinese Power Shortages, Germany to Phase Out Nuclear Power, Brazilian Deforestation & Climate Debate (by Bob Percival)

2011-05-31T14:38:00.000-07:00

Last week I noted that a severe drought in China had reduced hydropower production there and that some regions were experiencing power shortages. It now appears that another major factor contributing to Chinese power shortages is that some electric utilities deliberately have cut power production because coal prices have soared while the government has refused to allow them to increase the rates they charge for electricity. This is being portrayed as setting up a major showdown between the Chinese government and state-owned utilities. Keith Bradsher, Power v. Profit: Chinese Utilities Defy Beijing and Cut Output, N.Y. Times, May 25, 2011, at B1.

Responding to safety concerns raised by the Japanese nuclear accident, the German government announced yesterday that it will phase out the country’s existing nuclear powerplants by the year 2022. German Chancellor Angela Merkel previously had backed extending the lifespan of existing nuclear powerplants, despite a previous government’s commitment to phaseout nuclear power. In light of Germany’s continued commitment to reduce emissions of greenhouse gases (GHGs), the country will be under even greater pressure to increase its already impressive investment in renewable energy. The government of Switzerland, which generates 40 percent of its electricity from five nuclear powerplants, also has announced that it plans to phase out nuclear power, but it has not set a date yet for completing the phaseout.

Last week the lower house of the Brazilian Congress approved a bill that will relax laws restricting deforestation of the Amazon. The legislation reportedly will grant amnesty to those who have engaged in illegal logging in the past while reducing the amount of undeveloped forest that must be protected by farmers and ranchers. Although Brazilian President Dilma Rousseff generally has favored development interests over environmental concerns, officials in her administration have suggested that the legislation may go too far. John Lyons, Brazil Moves to Loosen Amazon-Logging Rules, Wall St. J., May 26, 2011.

On May 25 I was a guest speaker at a luncheon at the U.S. Capitol sponsored by the D.C. Chapter of the Federalist Society. The topic was the “Legal and Policy Implications of the Obama Administration’s Effort to Regulate Greenhouse Gases.” Debating me was former White House Counsel and former U.S. Ambassador to the European Union C. Boyden Gray. To his credit, Gray did not deny that climate change was a serious problem. Instead his basic claim was that until China and India agree to an international treaty to control emissions of GHGs it would be useless for the U.S. to do anything to control GHG emissions. I noted that because the developed world caused most of the climate change problem, it was only fair that developed countries take the first steps to control their GHG emissions, the basic premise of the Kyoto Protocol, which has been ratified by every developed country except for the U.S. Gray made the astonishing claim that the U.S. may not be the largest historic contributor to the problem in light of extensive reforestation that has occurred in the U.S., a claim I quickly debunked. While giving Gray credit for not denying the existence of a problem, I warned that Republican politicians who increasingly are joining the ranks of climate change deniers are making an “historic mistake. “ The problem is only getting more serious and politicians cannot simply wish it away.

On May 26 New Jersey Governor Chris Christie announced that he was withdrawing the state from the northeastern and mid-Atlantic states’ regional plan to control GHG emissions through a cap-and-trade program for powerplants fired by fossil fuels. While stressing that he was not joining the ranks of climate change deniers, Christie argued that the plan was ineffective. States remaining in the Regional Greenhouse Gas Initiative (RGGI) include Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont. New Jersey’s exit is not expected to jeopardize the program, which has raised more than $700 million through the sale of emissions allowances.

Return from China, Dams in China & Chile, Indonesian REDD Initiative & Kickstarter Project (by Bob Percival)

2011-05-24T20:39:00.000-07:00

I spent my last evening in China having dinner with my dear friend Zhang Jingjing, the “Erin Brockovich of China,” who had wonderful news that she is about to be married to an American environmentalist who did pioneering work on levels of air pollution in Beijing. In the fall Jingjing plans to enroll in Harvard’s John F. Kennedy School of Government to pursue a masters degree. During our final day in China, my son used the basketball he received from Ningo University Professor Cai XIanfeng to shoot hoops with Chinese kids at the Dandong Sports complex in Beijing. A gallery of photos of our trip to China and a video of the basketball workout are online at: http://gallery.me.com/rperci#100835 and http://gallery.me.com/rperci#100838.

We returned home from China last Wednesday night. On Thursday I participated in festivities honoring the 30 students graduating from the University of Maryland School of Law with certificates of concentration in environmental law. This graduating class represented our largest class of environmental law students ever. More than one-fifth of Maryland law students now regularly take environmental law and more than one-tenth elect to specialize in it in order to qualify for the certification of concentration. Brooksley Born, the former chair of the Commodities Futures Trading Commission, was our graduation speaker on Friday.

During my time in China, for the first time I detected unusually high levels of concern among Chinese environmentalists about the government’s crackdown on NGOs who receive assistance from foreign sources, a product of the events in the Middle East. Ironically, some Chinese officials are displaying greater candor than ever about the country’s environmental problems. On May 19 CHina’s State Council released a statement approved by Premier Wen Jiaboa that acknowledged that the country’s $23 billion Three Gorges Dam has caused serious problems. In addition to pollution-fed algae blooms, islands of floating trash, and geological problems associated with the dam (see Josh Chin, Critics Hail Admission of Chinese Dam Flaws, Wall St. J., May 21-22, 2011, at A9), a severe drought has reduced power production from Chinese hydropower projects, threatening electrical shortages in some areas of China. Chinese environmentalists are hoping that the government’s new skepticism concerning large dam projects will bolster opposition to several projects planned for other rivers, including China’s Nu River. Chilean environmentalists are upset that their government has approved the construction of five dams on the Baker and Pascua Rivers in Patagonia that will require construction of a transmission line that would involve the largest clearcut of forests in the world. Keep Chilean Patagonia Wild, New York Times, May 22, 2011 (http://www.nytimes.com/2011/05/24/opinion/24tue3.html?_r=1).

On May 20 Indonesian President Susilo Bambang Yudhoyono issued a decree committing the government to a two-year moratorium on the issuance of permits to clear 159 million acres of virgin forest and peatland. The decree was designed to protect sinks for greenhouse gases as part of a $1 billion UN program for Reduced Emissions from Deforestation and Forest Degradation (REDD). Although touted by the government as a major advance in the fight against climate change, environmentalists were highly critical of the plan, arguing that it still allowed too much leeway for deforestation. Aubrey Belford, Environmentalists Criticize Indonesia’s Plan to Save Forests, N.Y. Times, May 20, 2011.

As tornado devastation in the U.S. adds to the toll of record-breaking natural disasters, Bill McKibben has published an op-ed noting that while it is impossible to tie any particular disaster to climate change, the overall pattern is entirely consistent with predictions by climate scientists. See Bill McKibben, See No Climate Change, Washington Post, May 24, 2011, at 21.

For anyone interested in an eco-friendly project to support environmental education efforts at the inner city school in Washington where my wife runs a garden-based curriculum, please visit: http://www.kickstarter.com/e/h9HlP/projects/547484901/build-the-foodprints-kitchen-at-watkins-elementary-0. If you are not able to contribute, please at least consider forwarding this link to your social networks.

China Trip, Compensation for Japanese Nuclear Accident, Environmental Crime in China, Bhopal Appeal Denied (by Bob Percival)

2011-05-18T20:40:00.000-07:00

For the last several weeks technical problems have prevented me from posting on my blog at www.globalenvironmentallaw.com, but regular weekly posts have been made on this blog. I started making parallel posts on these two blogs while teaching in China three years ago because sometimes one site or the other is blocked by the great Chinese firewall. When I was in China during the last week this blogspot site was blocked, while the other site was working. Having just arrived back in the U.S. I am posting to this site the post I made on the other site earlier in the week while in China.

I have had a wonderful time in China since arriving on May 10. On Wednesday night May 11 I had dinner in Beijing with Alan Miller, one of the co-authors of my environmental law casebook, who was in town to work on energy efficiency guidelines for the Chinese cement industry on behalf of the International Finance Corporation. On Thursday May 12 my son Richard and I went to the Summer Palace and the Great Wall. Due to high winds we were forced to go to the Badaling part of the Great Wall, but the winds cleared out most of the pollution and the day ended with blue skies and puffy white clouds - a rarity for Beijing. On Friday we flew to Jinan where I visited Shandong University School of Law. Jinan is a small town for China -- only about 2 million residents -- Shandong University has approximately 20,000 students. After lunch with several law professors, including Zhang Shijun, who was a visiting scholar at the University of Maryland School of Law during the 2009-2010 academic year, I presented a guest lecture on “Transnational Liability Litigation for Environmental Harm.”

On Friday night my son and I flew to Shanghai where we had dinner with Professor Zhao Huiyi from Shanghai Jiao Tong University Law School. Professor Zhao, whose specialties are environmental law and criminal law, has just completed two years on leave from the law school to supervise criminal prosecutions for the procurate in Shanghai. She is hoping to come to the U.S. as a visiting scholar during the 2011-2012 academic year. On Monday May 16, we traveled to Ningbo to visit Ningbo University. Professor Cai Xianfeng, who I had met while he was in the United States in 2010, hosted the visit. After lunch with several law professors I gave a lecture on “Climate Change and the Future of Global Energy Policy in the Wake of Global ‘Tsunamis’.” The tsunamis referred to in my lecture title included the Japanese tsunami and the nuclear accident it spawned, the volatility of global energy prices in the wake of unrest in the Middle East, and the Republican takeover of the U.S. House of Representatives in the November 2010 election. I discussed the effects of each of these three developments on efforts to control emissions of greenhouse gases in the U.S. and other countries. Photos from my trip to China are available online at: http://gallery.me.com/rperci#100835

The accident at the Fukushima Daiichi nuclear power plant in Japan has generated considerable concern in China because China has far more nuclear reactors planned and under construction than any other country and earthquakes are a major concern. On May 12 China marked the third anniversary of the devastating Wenchuan earthquake that killed nearly 70,000 people. Japanese authorities have unveiled a plan for compensating the victims of the Fukushima Daiichi accident. The plan would establish a fund to compensate the 80,000 people displaced due to the accident funded by contributions from plant owner Tokyo Electric Power Company and other utilities that operate nuclear powerplants in Japan. The Japanese government plans to issue special bonds to get the fund up and running.

Chinese authorities have approved the first criminal prosecution for an environmental crime since Amendment VIII was added to the Criminal Law on May 1. The prosecution involves two men caught dumping acid wastes into the Honghe River. Complaints in mid-February about dead fish floating in the river led to an investigation and police eventually caught Mr. Jiang and Mr. Dong pouring the acid into the river. Zhou Xiaqin, the prosecutor responsible for the case, noted that under the old law, a criminal prosecution could not be brought unless it was proven that the offense had caused serious harm to public or private property or injuries or deaths. Wu Yiyao, Two Men to Face Charges for Polluting, China Daily, May 13, 2011, at 5.

China’s National Audit Office (NAO) has discovered that 205 million yuan (US $31.5 million) in subsidies designed to facilitate emissions reductions by power plants and cement and steel manufacturers have been embezzled. Twenty people reportedly have been punished for their roles in the embezzlement schemes and fines totaling more than $1 million have been imposed. The embezzlements represent only a small portion of the nearly $20 billion in subsidies to support energy conservation and emissions reductions projects from 2007 to 2009. Subsidy Fraud Hits Emissions Battle, Shanghai Daily, May 14, 2011, at A7.

On May 11 the Supreme Court of India rejected an appeal challenging as too light the sentences imposed on seven employees of the Union Carbide plant in Bhopal, India, where a release of a toxic chemical killed thousands in December 1984.

Public Trust Climate Change Suits, Global Warming Reducing Crop Yields, Soil Erosion and Runoff Fears, China Airlines & EU ETS (by Bob Percival)

2011-05-10T12:22:00.000-07:00

Last week an Oregon-based group called “Our Children’s Trust” filed lawsuits in federal court in California and many state courts alleging that the atmosphere is a public trust that the state and federal government have a fiduciary duty to protect on behalf of present and future generations. The lawsuits, which feature teenagers as plaintiffs, maintain that the governments have breached their duty to protect the public trust because they have failed to control emissions of greenhouse gases. The public trust doctrine was recognized by the U.S. Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), where it held that the state of Illinois held title to submerged lands within its borders in trust for the public. It has not been Citing an “atmospheric climate emergency,” the suits seek declaratory relief recognizing the public trust in the atmosphere and the duty of government officials to protect it from causing harm due to climate change. Links to copies of some of the complaints are available at: http://www.ourchildrenstrust.org/legal-action/lawsuits. There is considerable skepticism in the legal community concerning whether the lawsuits are likely to be successful as many courts have steered away from applying the public trust concept in environmental cases because of the difficulty of discerning objective standards to apply. Yet the underlying concept that courts should be available to intervene as a last resort if government officials are failing to prevent enormous harm to public resources has some appeal.

On May 5 the journal Science published a study finding that global corn and wheat production has declined by 3.8% and 5.5% respectively since 1980 due to global warming. An abstract of the study, “Climate Change and Global Crop Production Since 1980” by David Lobell and Wolfram Schlenker of Stanford University, and Justin Costa-Roberts of Columbia University, is available online at: http://www.sciencemag.org/content/early/2011/05/04/science.1204531. The study concluded that the effects of global warming on crop production vary from country to country. It has reduced wheat production in Russia by 10% and by a few percentage points each in China, France and India. Corn production has fallen by a few percentage points in Brazil, China and France. Surprisingly, overall crop productivity in the Midwestern U.S. have not yet been affected by climate change, the study found. Global rice and soybean productivity has not yet been significantly affected because losses in some parts of the world have been offset by gains in other areas. The study’s assessment of impacts is likely to be conservative because it excluded the effects of extreme weather events on crop yields. Justin Gillis, Global Warming Reduces Expected Yields of Harvests in Some Countries, Study Says, N.Y. Times, May 5, 2011.

A study by the Environmental Working Group entitled “Losing Ground” concludes that agricultural soil erosion and runoff in Iowa is occurring at nearly twice the rate of 5.2 tons per acre estimated by the U.S. Department of Agriculture. Using an aerial survey and data from Iowa State University researchers, the study concludes that recent storms have triggered alarming soil losses in some areas. A copy of the study is available online at: http://www.ewg.org/losingground/ The current flooding of the Mississippi River is exacerbating fears of Midwestern erosion and runoff. Jeffrey Ball, Floods Raise Runoff Concerns, Wall St. J., May 5, 2011, at A5.

Congress continues to debate the future of U.S. energy policy with the Republican-controlled House of Representatives trying to speed up domestic oil drilling, while the Senate considers a measure to eliminate tax breaks for large oil companies. Last week the Obama Administration established a seven-member panel led by MIT Professor and former CIA Director John Deutch to recommend ways of improving the safety of hydraulic fracturing as a means for extracting natural gas from shale formations. The U.S. Department of Energy’s announcement of the panel is available online at: http://www.energy.gov/news/10309.htm.

I arrived in Beijing this afternoon with my son, who was fascinated by crossing the International Date Line for the first time. He was intrigued to hear that Samoa has decided to switch to the western side of the dateline in order to make trade easier with New Zealand and Australia. American Samoa, which I visited in 1973 while sailing around the world, will stay east of the dateline, creating “exciting tourism opportunities” according to Samoa’s prime minister because with less than an hour’s flight “you can have two birthdays, two weddings and two wedding anniversaries on the same date.” Samoans to Jump Ahead One Day in Zone Shift, China Daily, May 10, 2011, at 10.

The China Air Transport Association (CATA) has threatened retaliation against the EU for insisting that all flights departing or landing at EU airports participate in the EU’s Emissions Trading System (ETS) beginning next January 1. Thirty-three airlines from the Chinese mainland, Hong Kong and Macao are covered by the EU rules, which also are being challenged by the U.S. Air Transport Association. The CATA estimates that Chinese airlines would have to pay nearly $2.7 billion over the next nine years to purchases emissions allowances from the ETS. Xin Dingding, Airlines Battling Costly EU Plan, China Daily, May 10, 2011 at 4.

Black Boxes & bin Laden, Faster Arctic Melting, Nuclear Adviser Quits, Post-Rapanos Guidance, Challenge to Calif. Waiver Rejected (by Bob Percival)

2011-05-03T20:57:00.001-07:00

Just hours before the momentous announcement on Sunday May 1 that Osama bin Laden had been killed by U.S. Special Forces, it was learned that submarines scouring the depths of the Atlantic Ocean finally had located a flight recorder from Air France Flight #447 that crashed on June 1, 2009 on a flight from Rio to Paris. Both events demonstrated that with enough persistence and effort, humans now can locate virtually anything or anyone even in a remote part of the planet (or in bin Laden’s case in the shadow of Pakistan’s West Point). After midnight my children headed downtown to participate in the spontaneous celebration outside the White House. They reported that it was almost entirely young people who were eager to dismiss uninformed claims that their generation had been too young to understand 9/11.

Tomorrow the Arctic Monitoring and Assessment Program (AMAP) will report that Arctic glaciers and ice caps have been melting so fast during the last six years that they may contribute 2 to 3 feet more to sea level rise by 2100 than predicted by the Intergovernmental Panel on Climate Change (IPCC). Despite great uncertainty surrounding the estimates, their projection that sea level will rise between 35 to 63 inches by 2100 dwarfs the IPCC’s 207 project of sea level rise between 7 and 23 inches. AMAP found that average annual temperatures over the Arctic have increased by twice as much as in the rest of the world.

The fallout from the Japanese earthquake and tsunami and the resulting Fukushima Daiichi nuclear accident continues. Last week University of Tokyo Professor Toshiso Kosako, a special adviser to the Japanese government on nuclear safety issues, abruptly resigned to protest the government’s handling of the crisis. Professor Kosako argued that it still was difficult to tell who was in charge of dealing with the crisis. He maintained that Japanese government agencies “have ignored the laws and have only dealt with the problem at the moment.” William Sposato, Nuclear Adviser Quits Over Handling of Crisis, Wall Street Journal, April 30, 2011. Sergei V. Kiriyenko, director of Rosatom, the Russian state nuclear company, last week proposed the creation of an international framework for regulating nuclear power and notifying other countries of serious accidents that may cause transboundary releases of radiation. Russia plans to present the proposal at a meeting of the Group of 8 in France later this year. Andrew E. Kramer, Russia Is Set to Propose Strict Rules for Reactors, N.Y. Times, April 29, 2011, at B6.

Last week the U.S. Environmental Protection Agency released guidance explaining how it intends to interpret its federal jurisdiction over “waters of the United States” in light of the U.S. Supreme Court’s confusing 4-1-4 split in Rapanos v. United States. Rapanos, which was decided in June 2006, has caused enormous confusion because four Justices accepted the Army Corps of Engineers’s long-standing practices for defining “waters of the U.S.,” four Justices adopted a dramatically narrower construction of the term, and Justice Kennedy enunciated a new “substantial nexus” test that none of the other Justices accepted. Because it is a guidance document, rather than a rule, it is unlikely that it can be challenged directly in court, though its application can be challenged when disputes arise in the future over the scope of federal jurisdiction over wetlands. The document, on which EPA is soliciting public comment, is available online at: http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf

On Friday April 29, the U.S, Court of Appeals for the District of Columbia rejected a legal challenge to EPA’s granting of a waiver to the state of California to adopt controls on greenhouse gas emissions from motor vehicles. The court ruled that the National Automobile Dealers Association and the U.S. Chamber of Commerce lacked standing to challenge the waiver because it did not affect them directly. The California standards will require more fuel efficient vehicles, but national automobile manufacturers did not challenge it.

This morning I spoke on a panel on "The Role of Judicial Settlements in Driving Rulemaking" at a conference in Washington D.C. sponsored by the ABA's Section on Administrative Law and Regulatory Practice. John Cruden, Deputy Assistant Attorney General for the Environment and Natural Resources Division of the U.S. Department of Justice, explained the department's long-standing settlement policies. James Nutt from the South Florida Water Management District described legal challenges before the 11th Circuit to a settlement agreement that governs the cleanup of the Everglades. Drawing on a 24-year old article I wrote for the University of Chicago Legal Forum, I focused on the historical background of disputes over the use of consent decrees that originated during the Reagan administration in March 1986 when Attorney General Edwin Meese issued the "Meese Memorandum."

Next Monday I am flying to Beijing to give guest lectures at Shandong University and Ningbo University. It will be my first trip to China since last June, the longest I have gone without visiting that country in more than six years.

Chernobyl & Gulf Spill Anniversaries, BP Advances $1 Billion for Natural Resource Damages, Xayaburi Dam (by Bob Percival)

2011-04-26T20:26:00.000-07:00

As Japan continues to struggle with the aftermath of an earthquake and tsunami that has crippled four nuclear reactors, today is the 25th anniversary of the world's worst nuclear accident at the Chernobyl nuclear power station #4 in north central Ukraine. In the 25 years since the Chernobyl accident the damaged reactor has been at the center of a large human exclusion zone because of radiation released in the accident. It is estimated that the inside of the damaged reactor, which is surrounded by a crumbling cement sarcophagus, will be dangerously radioactive for the next 300 years. Funds are being raised to encase the facility in a new steel containment structure. Radiation in the exclusion zone has declined to the point where small groups of tourists may make brief tours to a monument outside of the damaged reactor to the nearby ghost town of Pripyat, whose 55,000 inhabitants had to be evacuated due to the accident. I visited Chernobyl on one of these tours in March 2009 (see blog post of March 22, 2009. A gallery of photos from this visit is available online at: http://gallery.me.com/rperci#100427.

The effect of the Japanese accident in dampening a revival of the nuclear power industry was apparent last week when NRG Energy Inc. announced that it was withdrawing from a project to build new new nuclear power reactors in Texas. The reactors were to be furnished by Toshiba and financed in large part by Tokyo Electric Power Co., the financially crippled owner of the Fukushima Daichi nuclear power complex where accident response is still ongoing.Rebecca SMith, NRG Drops Plan for Texas Reactors, Wall St. J., April 20, 2011, at B1. Meanwhile Exxon CEO Rex Tillerson predicted that nuclear power's share of global energy production would be unchanged thirty years from now despite the Japanese disaster. David Blair & Sylvia Pfeifer, Exxon Sees Nuclear Holding Its Own, Financial Times, April 21, 2011, at 18.

Wednesday April 20 was the first anniversary of the Deepwater Horizon blowout and oil spill in the Gulf of Mexico. In an op-ed in the Wall Street Journal, BP CEO Bob Dudley expressed regret for the accident and reiterated that BP would pay all legitimate claims. Bob Dudley, The Lessons of Deepwater Horizon, Wall St. J., April 20, 2011, at A15. BP reached a settlement with the Justice Department last week in which BP agreed to provide $1 billion as a down payment on what it will owe for damages to natural resources. The money will be used for coastal restoration projects. In addition BP and other responsible parties are likely to owe the Oil Spill Liability Trust Fund large penalties under the Clean Water Act that could range from $5 to $21 billion on top of the compensation it is paying through its $20 billion compensation fund. Consideration is being given to legislation that would allocate 80% of these penalties to Gulf Coast restoration, as recommended by the President's Commission on the spill, rather than using it to replenish the Trust Fund to a level of $2.7 billion with the rest going to the U.S. Treasury as current law provides. Campbell Robertson, Beyond the Oil SPill, the Tragedy of an Ailing Gulf, N.Y. Times, April 21, 2011, at A16.

Last week BP filed lawsuits in federal district court in New Orleans against Transocean, the owner of the Deepwater Horizon oil rig, and Cameron International, the manufacturer of the blowout preventer that failed in the accident. BP alleges in the lawsuits that negligence by Transocean and Cameron caused the blowout. Transocean and Cameron filed cross claims against each other and BP. BP's case against Transocean may be bolstered by a Coast Guard report released on Friday April 22, which faulty the company for improper maintenance and poorly designed safety systems, though the report focused largely on the fire and sinking of the Deepwater Horizon platform, and not the initial cause of the blowout, because of the Coast Guard's jurisdiction over the rig, which is treated like a ship subject to Coast Guard regulation. Russell Gold & Angel Gonzalez, Spill Report Faults Transocean Rig, Wall St. J., April 23-24, 2011, at A3.

Plans to build a $3.5 billion dam on the Mekong River temporarily were placed on hold last week when Vietnam, Cambodia and Thailand objected to Laos's plan to proceed with the 1,20 megawatt Xayaburi dam. At a meeting sponsored by the Mekong River Commission, the three objecting countries argued that insufficient consideration had been given to the environmental impact of the project. The Commission itself had released a study late last year that found that the dam would "fundamentally undermine the abundance, productivity, and diversity of Mekong fish resources." The project is one of ten or more dam projects being considered in the region. Pursuant to a 1995 regional agreement, the countries are committed to consult with one another before proceeding with such dam projects, but no country has veto power. Thus, Laos ultimately may decide to go ahead with the project despite the objections of the other countries. Patrick Batra, Asian Nations Defer Decision on Dam, Wall st. J., April 20, 2011, at A9.

A week after the oral argument in the Supreme Court in the climate change case (American Electric Power v. Connecticut), a consensus seems to be emerging in the blogosphere that the plaintiff states suing electric utilities with large, coal-fired powerplants are likely to lose, though the grounds for such a decision are uncertain. Most believe the Court will hold that EPA's efforts to regulate greenhouse gas emissions under the Clean Air Act will be held to displace the federal common law of nuisance.

Yesterday it was announced that the University of Maryland School of Law has received a $30 million donation from the W.P. Carey Foundation. Tamar Lewin, Maryland Renames Law School After Gift, N.Y. Times, April 25, 2011, at A14.The law school will now be named the University of Maryland Francis King Carey School of Law, in honor of Francis Carey who graduated from the law school in 1880. The funds are unrestricted and will be a great boost to all of our school's programs, including our environmental law program. The gift, which is one of the ten largest gifts in the history of legal education, is a tribute to the generosity of the Careys and the great work of Phoebe Haddon, our dean. A celebration involving Maryland Governor Martin O'Malley and Baltimore Mayor Stephanie Rawlings, both alums of our law school, as well as other leading figures in Maryland's bench and bar was held at the law school yesterday.

TVA Settlement, BP Annual Meeting, Chevron CEO Interview & AEP Argument (by Bob Percival)

2011-04-19T19:00:00.000-07:00

On Thursday April 14 the U.S. Justice Department announced that the Tennessee Valley Authority (TVA) will close 18 old coal-fired electrical generating units at three power plants in settlement of litigation by states and environmental groups charging the TVA with violations of the Clean Air Act's new source review (NSR) provisions. The plants, which are more than 50 years old, have operated for decades without modern pollution control equipment because they were grandfathered-in when the 1970 Clean Air Act (CAA) was adopted. The idea was that they eventually would be replaced by generating units that would have new pollution controls required by the Act, but the TVA continued to renovate the old plants to take advantage of the CAA's failure to control existing sources. The settlement covers all of the power plants targeted by a state common law nuisance suit brought by North Carolina. Eight of the generating units that will be shut down at two power plants initially had been ordered in January 2009 to install new pollution control equipment due to North Carolina' lawsuit. North Carolina ex rel. Cooper v. Tennessee Valley Authority, 593 F. Supp. 2d 812 (W.D.N.C. 2009). However, in July 2010 the U.S. Court of Appeals overturned this decision, erroneously ruling that as long as the power plants were in compliance with the CAA they could not be nuisances at common law. North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010) (see August 1, 2010 blog post).

What may have spurred the settlement was the filing of a petition for Supreme Court review of the Fourth Circuit's decision. While the TVA generally has independent litigating authority, when a case goes to the Supreme Court the Solicitor General (SG) must weigh in and the SG's office repeatedly had sought extensions of the deadline for its reply to the state's cert petition. Presumably the SG's office consulted EPA which may have insisted that TVA settle the NSR litigation. The settlement will reduce TVA's emissions of sulfur dioxide by 97% below 1977 levels and nitrogen oxides by 95%. TVA also will spend between $3 and 5 billion to upgrade pollution controls at plants that it will continue to operate.

On April 14 BP held its annual meeting of shareholders in London. Protesters covered in what looked like oil greeted the shareholders as they filed into the meeting. The father of Gordon Jones, a worker who had been killed when the Deepwater Horizon oil platform exploded and caught fire, took the microphone and argued that the company could have prevented his son's death. This prompted BP CEO Robert Dudley to read out the names of the 11 workers who were killed by the blowout. Other protesters sought to disrupt the meeting to draw attention to BP's development of Canada's tar sands. Kiran Stacey & Sylvia Pfeifer, BP Shareholders Shaken by Invasion of Motley Protesters, Financial Times, April 15, 2011. Twenty-five percent of BP shareholders voted against the re-election to BP's board of Sir Bill Castell, chair of the board's safety committee.

Last week Chevron's CEO John Watson gave an interview to Kimberley Strassel of the Wall Street Journal where he argued that renewable energy is too expensive to be a significant supply source and that because America has taken "affordable energy for granted" it will need a lot more oil, coal and natural gas. He also strongly attacked EPA's effort to regulate emissions of greenhouse gases. Apparently the interview did not touch on whether Watson believes in Chevron's massive "We Agree" advertising campaign or how he feels about the $8.6 billion judgment against the company for pollution in Ecuador. Kimberley Strassel, Oil WIthout Apologies, Wall St. J., April 16-17, 2011, at A11.

Today the U.S. Supreme Court heard oral argument in American Electric Power v. Connecticut, a case involving whether a federal common law nuisance lawsuit by several states can be brought against utilities operating large coal-fired powerplants. The case initially was brought by the states in 2004, dismissed as a political question by a federal district judge in 2005, and then reinstated by the U.S, Court of Appeals for the Second Circuit in 2009 (see Sept. 27, 2009 blog post). I attended the oral argument and will provide more details in my next blog post. A transcript of the argument is available online at: http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-174.pdf

Last Wednesday Alan Miller from the International Finance Corporation, who is one of the co-authors of my environmental law casebook, attended the Nats/Phillies game with me. On the second to the last pitch of the game I caught a foul ball hit by Pudge Rodriguez (unfortunately he struck out on the next pitch with the tying and winning runs on base and the Phillies won 3-2). On Thursday evening I attended a Fulbright Association reception at the Colombian embassador's residence.

I am currently experiencing technical difficulties posting to my parallel blog at: www.globalenvironmentallaw.com, which contains more photos. I started doing parallel postings because the Chinese government's firewall sometimes would block one of the two websites. Now I have another reason to be glad that I have been doing cross postings.

EPA GHG Riders Deleted in Budget Compromise, ABA Int'l Section: India & China, Texas Senate Seeks to Bar Climate Change Suits (by Bob Percival)

2011-04-12T08:24:00.000-07:00

Faced with the specter of a shutdown of the U.S. government at midnight last Friday, a last-minute compromise was reached that continued funding for a week in return for a promise of $38 billion in overall budget cuts. Fortunately the Obama administration insisted on the deletion of “policy riders” adopted by the House that would have barred EPA from regulating emissions of greenhouse gases (GHGs). Although EPA still faces the prospect of significant budget cuts, President Obama has made it clear that he will veto legislation that includes similar policy riders. Separate legislation to amend the Clean Air Act to bar EPA from regulating GHGs (deceptively titled the “Energy Tax Prevention Act”) passed the House last week by a vote of 255 to 172 with the support of 19 Democrats. An effort to get the Senate to approve similar legislation on Friday fell ten votes short of the 60 votes needed to avert a filibuster. President Obama has promised to veto such legislation.

This week the section on International Law of the American Bar Association (ABA) held its annual Spring Meeting in Washington. On Thursday April 7 I was on a panel on “Evolution of the Environmental Rule of Law in China and India.” The panel was moderated by former EPA General Counsel Roger Martella. Jay Pendergrass from the Environmental Law Institute (ELI) and Stanford professor Armin Rosencranz discussed the state of environmental law in India. They noted that despite a burst of judicial activism on behalf of the environment by the Supreme Court of India during the 1990s, development interests now are prevailing in most environmental conflicts in the country. The legal system works notoriously slowly in India and enforcement of environmental law has not been a high priority as the country pursues rapid development. India’s Minister of Environment and Forests Jairam Ramesh has made a splash by temporarily halting certain projects for failure to comply with India’s environmental laws. These include the Lavasa project, India’s first planned hill city. However, most of these projects ultimately will be completed, as is occurring with the Posco steel mill. There has been hardly any public interest litigation in India in the last decade, although the Supreme Court of India retains continuing jurisdiction over forest management to implement its 1995 Godavarman decision.

Tseming Yang described the structure of the Chinese legal system and Chinese environmental laws. I discussed five developments in Chinese environmental policy: (1) Increasing awareness of the need to combat climate change, as reflected in the 12th Five Year Plan the government adopted last month, (2) The growth of environmental courts in the provinces, (3) civil society initiatives to encourage multinational companies to “green” their supply chains in China, (4) increasing production and consumption of asbestos in China despite the trend in the developed world to ban its use, and (5) the possibility that Chinese companies may become targets of transnational litigation over their resource extraction practices in Africa and South America.

I also noted that China and India are relying heavily on construction of nuclear powerplants to supply their future energy needs. China is beginning construction of 27 reactors and has 50 more in stages of planning. India has five under construction and 18 more in planning stages. Together the two countries account for more than 60 percent of new nuclear construction (37 of 60 plants under construction and 68 of 109 reactors in the planning stages worldwide). Max Colchester & Liam Moloney, Japan Crisis Dims Nuclear Plans, Wall St. J., March 30, 2011, p. A14. While both countries have indicated that they do not expect the Japanese nuclear accidents to affect their energy plans, China has temporarily suspended licensing and ordered a safety review. Last week Indian Minister of Environment and Forests Jairam Ramesh conceded that the possibility of a tsunami had not been considered in connection with planning for the Jaitapur nuclear power project to be constructed on the coast of the Arabian Sea in Maharastra state.

Copies of materials prepared for the Thursday sessions are available online at: http://www2.americanbar.org/calendar/section-of-international-law-2011-spring-meeting/Pages/Thursday.aspx. (Links to the panel’s materials can be found under the 2:30-4:00pm Thursday time slot).

On Tuesday April 19 the U.S. Supreme Court will hear oral argument in a climate change nuisance suit brought by several states against utilities with large coal-fired powerplants. The Court’s decision in American Electric Power v. Connecticut could have a major impact on the future of federal common law nuisance litigation. Meanwhile the Texas Senate voted last week to bar state common law nuisance suits based on emissions of GHGs. SB 875 would create an affirmative defense for anyone subject to such litigation so long as they are in compliance with their existing permits for emissions of air pollutants. The bill does not cover emissions that create a “noxious odor”.

Pace Environmental Courts Symposium, EPA Appropriations Riders, Obama Energy Speech & Tiger Comeback (by Bob Percival)

2011-04-04T20:56:00.000-07:00

On April 1st and 2nd I participated in an International Symposium on Environmental Adjudication at Pace Law School. A terrific opening keynote address was delivered by Brazilian Supreme Court Justice Antonio Herman Benjamin, who spoke on “Judges, the Environment, and the Rule of Law.” I have known Justice Benjamin, who was the founder of Brazil’s Green Planet Society (an environmental NGO), since before his appointment to Brazil’s Superior Tribunal de Justiça by President Luiz Inacio Lula da Silva in 2006. Justice Benjamin contrasted two models of the role of the judiciary - the juiz espectader and the juiz protaganista. In the former a judge just performs a passive role of “calling balls and strikes” in enforcing property and contract rights, while seeking to avoid environmental controversies because of their technical nature. In the latter, judges acknowledge that they often must decide highly technical issues, like those posed by intellectual property law, and they treat environmental rights created by newly amended constitutions as more than merely cosmetic.

The conference also featured fascinating presentations by the Honorable Brian J. Preston, Chief Judge of the Land & Environment Court of New South Wales, Australia, and the Honorable Donald Kaniaru, who is directing the launch of the new Environmental Court of Kenya created by the country’s new constitution adopted in August 2010. Rock and Kitty Pring reported on their findings concerning the burgeoning movement to establish environmental courts throughout the world, offering a dozen guidelines for good practices to maximize the effectiveness of such courts.

I spoke on two panels at the conference - a panel on “The Rule of Law and Environmental Adjudication” and a panel on the “Capacity of Environmental Courts in China.” The first panel was chaired by Judge Meredith Wright of the Environmental Court of the State of Vermont. It featured presentations by Charles DiLeva of the World Bank and Ken Markowitz of the International Network on Environmental Compliance and Enforcement (INECE). I argued that whether or not countries establish specialized environmental courts, they need to resolve environmental disputes that often involve highly technical issues of environmental science. I traced the history of the U.S. federal courts’ involvement in environmental dispute resolution from the early transboundary pollution cases heard by the U.S. Supreme Court exercising its original jurisdiction over disputes between states. I noted that the federal courts often seek environmental experts to advise them, noting my own service as a special master presiding over a multi-week trial in federal court in a Superfund dispute. On the second panel I emphasized the difficulties China’s environmental courts face while operating in a country without an independent judiciary. Many of the federal regulatory programs to protect the environment in the U.S. were implemented only after citizen suits against the federal government, something that is unlikely ever to be authorized in China so long as the Communist party monopolizes power.

On Saturday April 2nd the speakers at the conference met with Professor Nick Robinson of Pace Law School to discuss a draft U.N. General Assembly Resolution to promote the development of environmental courts throughout the world. Justice Benajmin chaired the session and demonstrated a new website the Supreme Court of Brazil has created to facilitate contacts among judges throughout the world.

Fearful that the Obama administration might accede to appropriations riders restricting EPA’s ability to act, environmental groups last week launched a concerted effort to pressure the administration to threaten to veto them. By the end of the week the effort seemed to have borne fruit as Senate Majority Leader Harry Reid declared that the administration would not accept such riders as part of a budget agreement.

President Obama gave a major energy policy speech at Georgetown University last week, urging the country to shift away from imported foreign oil and to reduce U.S. consumption of it by one-third. This made President Obama the latest in a string of presidents to endorse such policies, even though they have had little success in the past.

At the opening of an International Tiger Conservation Conference last week the government of India released the results of a tiger census. The census showed that the number of tigers in the wild in India had climbed to 1,706, a substantial increase since the last tiger population estimate of 1,411 in 2007. The 2007 number did not include tigers in Sunderbans, making the actual increase somewhat smaller than it appears, but nonetheless a positive sign for tiger conservation efforts.

On Sunday I was in Charlottesville, Virginia for the University of Virginia Law School’s annual national law school softball tournament. This year 130 teams from 52 law schools competed in the tournament. One of Maryland’s coed teams advanced to the Elite Eight before losing to the University of Virginia. Florida Coastal won the coed division and UVA won the men’s division. Photos of the tournament are online at: http://gallery.me.com/rperci/100817

ASIL Conference, Golden Tree Awards & RFF Book Launch (by Bob Percival)

2011-03-28T20:08:00.000-07:00

From March 23-26 the American Society of International Law (ASIL) held its annual conference in Washington, D.C. Due to a host of other commitments I only was able to attend a few sessions on Friday March 25, but they were very worthwhile. I attended a great session on “Harmony and Dissonance in Extraterritorial Regulation,” followed by a terrific session on “International Law and Liability for Catastrophic Environmental Damage.” The speakers in the latter session included Tulio Treves from the International Tribunal for the Law of the Sea, Alan Boyle from Edinburgh University, Peter Sand from the University of Munich, Monika Hinteregger from the University of Graz, and Gunther Handl from Tulane University. The speakers were highly critical of the state o international law on liability for transboundary environmental harm, a subject on which I have been writing recently. Even though the nuclear accidents in Japan are commanding public headlines, the speakers focused largely on the BP oil spill in the Gulf of Mexico.

Treves noted that although the International Seabed Authority had not required a precautionary approach in its Regulations on Prospecting and Exploration for Polymetallic Nodules, it was now moving in that direction. Boyle observed that the International Court of Justice (ICJ) in its Pulp Mills decision established that the primary obligation of nations under international law in regulating private enterprises to prevent transboundary harm essentially is a due diligence requirement that does not make states guarantors against such harm. However, he concluded that in light of he extensive evidence of federal regulatory failures concerning deepwater drilling in the Gulf, the United States was extremely lucky that the spill was largely confined to U.S. waters. Handl noted that Mexican states have filed claims in Texas federal court for damages to fisheries and tourism due to the spill. He also noted that the U.S. was lucky that it was BP who was responsible for the spill, since many companies engaged in offshore drilling are thinly capitalized and would be unable to afford the level of compensation BP will have to pay. He noted that Indonesia has sued Australia over the Montara oil platform blowout in 2009 and that the International Maritime Organization (IMO) wants to negotiate a new international liability regime for oil spills. The speakers seemed to think that a new global liability regime was necessary, though they questioned whether the IMO is the appropriate organization for developing it.

When asked about the decades-long efforts by the International Law Commission (ILC) to formulate principles of international law applicable to transboundary environmental harm, the panelists noted that the ILC was deeply conservative and largely attempted to restate existing law without advancing liability standards. However, the ILC’s effort was helpful to the ICJ in its Gabcikova decision. Professor Hinteregger discussed the European Commission’s Directive 2004/35/CE on Environmental Liability. She argued that it turned out totally different from what initially was expected because it established a public law regime of liability rather than seeking to influence the development of private civil law. The directive is very limited, focusing on reimbursing states for costs they incur for preventive and remedial measures, while not developing the law applicable to compensation for harm to private parties. Peter Sand concluded the presentations by discussing the work of the United Nations Compensation Commission for Iraq’s invasion of Kuwait, noting that it had made the largest award for environmental harm that actually was paid - more than $5 billion. He emphasized that the Commission had been a pioneer in awarding damages for harm to ecosystem services.

On Wednesday March 23 Maryland’s Environmental Law Program held its Eighth Annual Environmental Law Film Awards Ceremony. The ceremony presented the coveted “Golden Tree” awards in ten categories to students who made films in my Environmental Law class last fall. The film “Silent Running,” a Lego-based animated remake of the 1972 first-ever environmental sci-fi film won awards for Best Picture, Best Use of Humor, and Best Special Effects. The film was made by law students Ovais Anwar, Becca Brown, Mike Spinelli, and Matt Standeven. Awards for Best Acting and Best Sound were given to the film “The Story of the Patapsco,” which examined the history of efforts to protect Maryland’s Patapsco River from pollution. The film was made by Luis Diaz, Andrew Goldman, Jacob Holtz, and Esther Houseman. The film “Don’t Jump in the Harbor” by Matt Peters and Christina Gubitosa won the award for Best Cinematography. The Golden Tree for Best Interviews went to “Go Beyond,” a film describing how a Baltimore couple became part of BP’s “Beyond Petroleum” advertising campaign. The film was made by Amalia Pleake-Tamm, Steven Isbister, and Peter Hogge. Since Peter is working in Maryland International Clinic in Namibia, the award ceremony was taped for him.

The Golden Tree award for Best Music went to the film “Trashy Mermaid,” made by Nathan Horne, Natasha Mehu, Emily Estrada, and Ajoke Agboola. The film used the theme song from “The Little Mermaid” to examine the dangers of plastic pollution in the oceans. The Golden Tree for Most Educational film went to Corin Vick’s “Geoengineering,” which explored engineering proposals to slow the pace of climate change. A Special Judge’s “Ken Burns” Award for Best Panning over Still Photos went to “Oysters in the Chesapeake Bay,” a film by Mike Adams, Hajrah Ahmad, Kasia Fertala, and Justine Moreau.

The Environmental Law Program is grateful to our independent panel of judges who voted on the Golden Tree awards. This year the panel consisted of Maryland Law faculty members Taunya Banks, Danielle Citron, Kathleen Dachille, and Kathy Vaughns, librarian Jill Smith, Yale World Fellow Kala Mulqueeny, Shanghai Roots and Shoots official Zhenxi Zhong, former Fulbright researcher Mary O’Laughlin, and youth judges Dominic Dachille and Richard Percival.

On Friday morning I attended a book launch at Resources for the Future for The Reality of Precaution, edited by Jonathan B. Wiener, Michael D. Rogers, James K. Hammitt, and Peter H. Sand. The book is the culmination of a decade-long project to assess whether European risk regulation is really more precautionary than U.S. regulation, as many people have argued. It presents numerous case studies of regulation on both sides of the Atlantic Ocean, and concludes that the evidence generally does not support the prevailing thesis. The book is a wonderfully valuable addition to the growing literature on global environmental law. I have argued that the precautionary principle is widely misunderstood by its critics (particularly Cass Sunstein) as requiring extreme levels of precaution when it actually says nothing about how precautionary regulatory policy should be. While this study’s thesis may seem to assume that Europe’s more explicit embrace of the principle should render its risk regulation policies more precautionary than such policies in the U.S., its conclusions seem to confirm my argument that this need not be the case.

Int'l Environmental Moot Court, WHO Asturias Conference, EPA Mercury Rule, Spanish Water Decision (by Bob Percival)

2011-03-21T20:15:00.001-07:00

On March 18-20 the University of Maryland School of Law hosted the International Finals of the Stetson International Environmental Moot Court Competition. A total of 18 teams from 10 countries (Brazil, China, Ghana, India, Ireland, Phillippines, Trinidad, Ukraine,the United States, and Zimbabwe) qualified for the International Finals after regional competitions throughout the world. After Friday’s competition eight teams advanced to the quarterfinals on Sunday March 20: two teams from the Law Society of Ireland, the University of the Phillippines College of Law and the Ateneo de Manila School of Law from the Phillippines, the National University of Advanced Legal Studies from India, the High Wooding Law School from Trinidad, the University of Hawaii William S. Richardson School of Law, and the University of California Hastings College of Law.

Advancing to the semifinals were one team from the Law Society of Ireland and teams from Hawaii, Trinidad, and the University of the Phillippines. The final round featured the University of Hawaii against the Law Society of Ireland. Judges for the final round included Rock Pring from the University of Denver School of Law, Tim Sellers, director of the Center for International and Comparative Law at the University of Baltimore, and Tseming Yang from the U.S. Environmental Protection Agency. For the second time in three years the winner of the competition was the Law Society of Ireland. Laura Allen from the University of Hawaii won the award for best oralist in the final round.

The team from Atenco de Manila won the award for best memorial for the second year in a row. Lance Cidre from Hasting won the award for Best Oralist of the Preliminary Rounds. The most inspirational story of the competition was the University of Zimbabwe, which won the Spirit of Stetson Award. Prior to the competition, the team members had never studied international law or environmental law. They initially tried to raise the funds to finance their trip through collecting small donations on street corners. Just when it looked like this effort would fall short, the publicity it received convinced a local corporation to make a last minute contribution that allowed the team to come to Maryland.

After five terrific days of vacation in Rome, my wife flew home on Wednesday while I flew to Spain to speak at a World Health Organization (WHO) Conference on “Environmental and Occupational Determinants of Cancer: Interventions for Primary Prevention.” The conference, which was held in the Asturias area of northwestern Spain was organized by Maria Neira, director of the Public Health and Environment Division of the WHO. The conference featured nearly 100 scientists, health journalists and NGO officials from 21 countries as well as a dozen WHO officials. I apparently was the only law professor invited to speak at the conference. On Thursday the conference opened at the spectacular new International Art Centre Oscar Niemeyer in Avilés, on which construction is still being finished. A huge press contingent attended drawn by the presence of Princess Letizia of Spain. Following the opening ceremonies, the conference speakers had an audience with the Princess and I was able to meet her and speak briefly with her. Local participants in the conferences were uniform in their praise of the Spanish royal family for helping hold the country together and for supporting causes such as cancer prevention through environmental regulation.

The conference marked the launch of a new WHO initiative to focus on primary prevention of cancer by controlling human exposure to toxic agents. Despite bans on the use of asbestos in most of the developed world, asbestos use actually is increasing in developing countries such as China and India. The power of global NGO networks to expose such practices in developing countries has forced all major multinational corporations out of the asbestos business, but it is still yielding windfall profits to less well known companies. Shockingly, Canada is considering reopening an old asbestos mine to export more of this deadly product to poor countries.

On Friday the conference was held at the Laboral City of Culture in Gijon, an impressive setting that formerly had served as the Franco government’s school for the children of laborers. I spoke about what the WHO should do to promote improved global environmental regulation to prevent human exposure to carcinogens. The conference concluded with the participants agreeing to The Asturias Call for Action, which was drafted in large part through the efforts of Dr. Philip Landrigan, the dean for global health at the Mt. Sinai School of Medicine in New York. The final version of this document is not online yet, but a press release describing the Call for Action is online at: http://www.who.int/phe/news/events/international_conference/PR_cancer_conf2011_en.pdf

I was supposed to return to the United States on Saturday to speak on a panel at the International Environmental Moot Court Competition and then to judge the quarterfinal round on Sunday morning. Unfortunately, after sitting for three hours on a plane awaiting takeoff at Madrid’s Barajas Airport on Saturday morning, my flight was canceled when repairs could not be completed in a timely fashion. That meant that I was unable to return to the U.S. until after the competition was completed on Sunday afternoon. I am so appreciative of the work of Suzann Langrall, David Mandell, William Piermattei, and Karla Schaffer in making the competition such a great success. On Friday night at the annual Fedder Dinner, Maryland law professor Rena Steinzor introduced Joel Fedder, whose generosity helped make Maryland’s hosting of the competition possible. Rock and Kitty Pring gave the annual Fedder lecture. Sunday was Karla Schaffer’s birthday and she was presented with a cake and flowers and then serenaded with “Happy Birthday” by the competitors in five different languages (English, Chinese, Portuguese, Russian, and Shonu (by Team Zimbabwe)). An after-competition party was organized at a local pub by the Brazilian delegation. Despite not advancing to the quarterfinals, the students were so enthusiastic about the competition that the vowed to encourage more Chinese schools to participate in a new regional competition next year.

On March 16 the U.S. Environmental Protection Agency (EPA) proposed national standards to limit emissions of mercury, arsenic and other toxic pollutants from U.S. power plants. EPA estimates that the standards will save 17,000 lives each year while preventing 11,000 heart attacks annually. While compliance with the standards will be costly, EPA estimates that they will generate net benefits five to 13 times their cost. Details of the proposal are available online at: http://www.epa.gov/hg/. EPA’s action is an historic step in the regulation of mercury emissions from U.S. powerplants. However, because nearly 30 percent of all mercury in the U.S. originates in Asia, predominantly from Chinese coal-fired powerplants, it also will be essential to negotiate a global treaty to achieve progress in reducing human exposure to mercury.

Spain’s Constitutional Court has struck down statutes in Andalusia and Castilla y Léon that gave the regions’ governments control over the Guadalquivir River and the Duero River, respectively. The court ruled that Article 149 of the Spanish Constitution trumped the laws by giving exclusive control over hydrological resources that pass through more than one region to the central government. The decision represents a sharp challenge to efforts by Spain’s regional governments to resist the European Union’s efforts to manage each river basin as a single unit. “A Watershed Decision,” El País, March 19, 2011 (English edition), at p. 2.

Japan Earthquake, Tsunami & Nuclear Accidents; Chevron Wins Ecuador Injunction, House Climate Vote, Exxon Blames BP, China Forum (by Bob Percival)

2011-03-14T15:24:00.000-07:00

On Friday March 11 the largest earthquake ever to strike Japan, registering 8.9 on the Richter scale, triggered a massive tsunami that hit the northern coast of Japan, killing thousands and disabling cooling systems at nuclear power plants located along the coast. The quake moved Japan’s main island of Honshu eight feet eastward, shifted the earth’s axis nearly four inches, and sped up the earth’s rotation by 1.5 microseconds. The epicenter of the quake was 80 miles east of the town of Sendai, Japan, which was devastated by the tsunami. Japanese authorities are struggling to contain nuclear reactors whose cooling systems failed at the Fukushima Daiichi Nuclear Power Station. Fearing partial meltdowns of their nuclear fuel, authorities injected seawater mixed with boron in desperate attempts to cool the reactors, but two explosions released some radiation. The disaster is Japan’s greatest tragedy since World War II and the world’s worst nuclear accident since Chernobyl. It ultimately may slow plans to resume building new nuclear power plants in the U.S., which had been part of the Obama administration’s energy strategy to combat climate change.

On Monday March 7 the Chevron Corporation obtained a preliminary injunction from a federal district court in New York barring the enforcement of the $8.6 billion judgment against the corporation for polluting the Oriente region of Ecuador. Judge Lewis A. Kaplan ruled that there was "ample evidence of fraud in the Ecuadorean proceedings" and "abundant evidence . . . that Ecuador has not provided impartial tribunals or procedures compatible with due process of law." He cited a report from a legal expert commissioned by Chevron that the judiciary in Ecuador is subject to political pressure from the government and that Ecuador ranks among the lowest nations in assessments of the strength of the rule of law. Luis Gallegos, Ecuador’s ambassador to the United States, defended the country’s judicial system and expressed "consternation that a U.S. court has elected to pass judgment on Ecuador's courts." Lawrence Hurley, Ecuador’s U.S. Ambassador Speaks Out on Chevron Case, New York Times, March 10, 2011.

On March 10 the Republican-controlled House Energy and Commerce Committee gave preliminary approval to legislation that seeks to revoke EPA’s endangerment finding for emissions of greenhouse gases (GHGs) and that prohibits EPA from regulating them under the Clean Air Act. At the committee hearing, Democratic Congressman Ed Markey denounced the committee’s proposed action by stating: “Mr. Chairman, I rise in opposition to a bill that overturns the scientific finding that pollution is harming our people and our planet. However, I won’t physically rise, because I’m worried that Republicans will overturn the law of gravity, sending us floating about the room. I won’t call for the sunlight of additional hearings, for fear that Republicans might excommunicate the finding that the Earth revolves around the sun.”

In a meeting with Wall Street analysts last week, ExxonMobil CEO Rex Tillerson rejected the notion that the oil industry needs to reassess the safety of its deepwater drilling operations as recommended by the President’s oil spill commission. Tillerson argued that the Deepwater Horion blowout and subsequent Gulf oil spill was solely the result of management failures by BP. On Monday March 7, Alaska federal district judge Russel Holland rejected an effort by environmental activist Rick Steiner to reopen the Exxon Valdez settlement agreement, concluding that it was up to the state and federal governments to seek such a reopener if they believe that damage from the spill is continuing in ways not covered by the agreement. The judge ordered the governments to study continue harm from the spill and to report back to him by September 15.

On Wednesday March 9, several of China’s top environmental law professors appeared at a program at the Wilson Center in Washington, D.C. to discuss “Green Governance Victories and Ongoing Challenges in China.” The professors included Wang Canfa from the China University of Political Science and Law (CUPL), Li Yanfang from Renmin University School of Law, Li Zhiping from Sun Yat-sen Law School and Yu Wenxuan from CUPL. I attended the program with six of the students from my Global Environmental Law seminar. The professors expressed considerable optimism about developments in Chinese environmental law, including the government’s new Five Year Plan that makes environmental protection and responding to climate change major priorities. Several agreed that a “tipping point” had been reached in which sustainable development was now an important priority of the central government. On Thursday Professor Yu visited the University of Maryland School of Law and attended one of my classes before flying back to Vermont where he is a visiting professor this year.

On Thursday evening I flew to Rome for a spring break vacation with my wife. Rome is an amazing city with clean spring water provided from public outlets, though efforts to green the city by creating bike lanes have had only partial success, something locals attribute to the global economic downturn. Photos of the trip may be viewed online at: http://gallery.me.com/rperci/100799. Before returning to the U.S. later this week I will stop in Spain to participate in a World Health Organization Conference on prevention of environmentally-induced cancer. I will arrive back in the U.S. on Saturday in time to help judge the quarterfinal round of the Stetson International Environmental Moot Court Competition that Maryland is hosting for the first time.

Vermont China Conference, Regulation of “Fracking”, Lease Sale Protester Convicted, Exxon Valdez Reopener, LIbya (by Bob Percival)

2011-03-07T19:54:00.000-08:00

On Tuesday March 1 I flew from Washington to Vermont to participate in Vermont Law School’s conference on “China’s Environmental Governance: Global Challenges and Comparative Solutions.” The conference, which was held on Wednesday March 2, featured China’s top environmental law professors, including Wang Canfa of the China University of Political Science and Law (CUPL), Li Yanfang of Renmin University, and Li Zhiping of Sun Yat Sen University. Zhang Jingjing, from the Public Interest Law Net Beijing’s office, also spoke at the conference. The Chinese professors reported on recent developments in environmental law in China, including the development of environmental courts, the first successful suit by a federation of Chinese environmental lawyers, and controversy over the use of civil suits by the Chinese procurate, public prosecutors who traditionally focus on criminal actions.

Other U.S. professors participating in the symposium included Pat Parenteau from Vermont, who gave a terrific talk on the state of environmental enforcement in the U.S., Patricia McCubbin, who spoke about EPA’s efforts to regulate greenhouse gas (GHG) emissions, and Jon Nagle who explored “how much should China pollute. “ Judge Meredith Wright described her work as the first judge on Vermont’s environmental court and Jennifer Turner of the Wilson Center gave a fascinating presentation linking Chinese energy development to increasing pressures on Chinese water supplies. I spoke on how globalization is affecting Chinese environmental policy, including actions by Chinese NGOs to “green” the supply chains of multinationals, and I warned that Chinese companies extracting resources from developing countries should learn from transnational liability litigation like the long-running lawsuit against Chevron for pollution in the Oriente region of Ecuador. Papers prepared for the symposium will be published in the Vermont Journal of Environmental Law. The Chinese professors are now in Washington where they will be featured at a program sponsored by the Wilson Center’s China Environment Forum on “Green Governance Victories and Ongoing Challenges in China” on Wednesday morning March 9 (see http://www.wilsoncenter.org/index.cfm?topic_id=1421&fuseaction=topics.home).

As the use of hydraulic fracturing to extract oil and natural gas continues to grow, see Sheila McNulty & Ed Crooks, U.S. Groups Unlock Secret Recipe for Oil, Financial Times, March 4, 2011, at 5, the New York Times explored why the practice has been largely exempted from U.S. environmental laws. Ian Urbina, Pressure Stifles Efforts to Police Drilling for Gas, New York Times, March 3, 2011, at A1. The article alleged that political pressure during previous administrations had forced EPA to limit studies that might have exposed environmental hazards from the increasingly popular drilling practice. It alleged that conflicts are now occurring between EPA and state environmental officials in Pennsylvania where “fracking” has been widely permitted despite EPA concern that disposal of untreated waste generated by the practice violates the Clean Water Act. On Friday Arkansas authorities ordered two companies temporarily to stop the practice of injecting wastewater generated by hydraulic fracturing into deep underground wells following a recent cluster of earthquakes in the areas. Daniel Gilbert, Arkansas Shutters Two Wells in Area of Quakes, Wall St. J., March 5-6, 2011, at A4. With so much at stake economically and environmentally, it would behoove companies using fracking to produce natural gas not to blindly oppose all precautionary measures to ensure that the practice does not cause unnecessry harm. See Christopher Swann, Address the Fears on “Fracking”, New York Times, March 7, 2011, at B2.

On March 3 a federal court jury in Utah convicted Tim DeChristopher on two counts of illegally disrupting a federal auction of public lands for oil drilling during the last days of the George W. Bush administration (see blog post on January 23, 2009). Judge Dee Benson prohibited the defense from telling the jury that DeChristopher had bid on the leases in order to block what he believed to be illegal and environmentally damaging lease sales rushed to auction prior to the Obama administration taking office. DeChristopher, who rejected a plea bargain, now faces up to five years in prison on each count. Kirk Johnson, Utah Man Convicted in Fraud at 2008 Energy Auction, New York Times, March 4, 2001, at A15.

On Friday March 4 a federal judge in Alaska conducted a hearing on whether a reopener provision in a settlement agreement over the 1989 Exxon Valdez oil spill should be invoked to require ExxonMobil to pay an additional $92 million for continuing environmental damage and to repay a $125 million criminal fine previously returned to the company. William Yardley, 22 Years Later, the Exxon Valdez Case Is Back in Court, New York Times, March 4, 2011, at A15. The hearing is being held at the request of marine biologist Rick Steiner.

With violence continuing in Libya as Colonel Muammar Gaddafi seeks to repress a major rebellion, significant legal questions are arising concerning who should be paid for exports of Libyan oil and investments by the country’s $70 billion sovereign wealth fund. Landon Thomas, Jr. Libya’s Hidden Wealth May Be Next Battle, New York Times, March 4, 2011, at B1. Libya’s former Justice Minister, who has joined the rebels, alleges that Colonel Gaddafi personally ordered the bombing of Pan Am Flight #103 that exploded over Lockerbie, Scotland on December 21, 1988, killing 270 passengers. The only person held accountable for the bombing, Abdel Basset Ali al-Megrahi, was released from serving a life sentence in a Scottish prison in August 2009, on the ground that he was near death from cancer. Aside from the release making a mockery of the concept of a life sentence, the fact that Megrahi remains very much alive in Libya more than a year and a half later, must be a source of unbelievable angst for the victims‘ families. Clyde Haberman, Viewing Libya through Prism of Lockerbie, New York Times, March 4, 2011, at A20. As surprising as the unrest sweeping the Middle East may be to many, in retrospect it seems incredible that rulers like Gaddafi have been managed to remain in power for so long.

On Friday I flew to Florida with my daughter to watch spring training for the Washington Nationals baseball team. On Saturday March 5 we watched the Nats beat the Yankees 10-8 in a game on the Yankees home turf in Tampa. On Sunday we saw the Braves beat the Nats 5-0. A photo gallery from spring training has been posted online at: http://gallery.me.com/rperci#100786.

Global Law Conference, China's Historic UN Vote, Spanish Speed Limit, Oil Drilling in Congo Park, Walmart Bans PBDEs & GM Plantings (by Bob Percival)

2011-02-28T19:03:00.000-08:00

On Friday February 25 I spoke at a symposium on “Global Law and its Exceptions” at the University of Washington School of Law in Seattle. The conference featured a terrific group of speakers who explored how global law is evolving in several fields, including constitutional law, corporate law, environmental law, administrative law, human rights, and family law. The symposium agenda is online at: https://www.law.washington.edu/cle/seminars/Global/agenda.pdf. I gave a presentation on “Global Law and the Environment,” and Professor Bill Rodgers responded to my presentation. The symposium was the brainchild of Professor Joel Ngugi who did an excellent job of framing the issues for discussion by proposing four ways to think about global law: legal harmonization, the transplant thesis (countries have always “borrowed” law from one another), the resistance thesis (that what’s happening is pernicious and should be resisted), and the emancipation thesis (that law is malleable and can be used for many ends).

Duncan Kennedy of Harvard then gave a keynote presentation. David Law of Washington University in St. Louis made a terrific presentation on global constitutional law, noting the high degree of borrowing in constitutional language (90 percent of constitutions have the same 9 rights and 70 percent the same 25 rights). He disputed the notion that Supreme Court judges from different countries are engaged in a cross-national “dialogue” and argued that citation of foreign sources by courts was largely a function of the extent to which judges had been trained in comparative law. Professor Frank Gevurtz of McGeorge expressed skepticism about global law, arguing that legal convergence occurs in cycles over time as corporate law tracks whatever fad is in vogue. There was a terrific audience of nearly 200, consisting mostly of lawyers, who generated a lively dialogue following the presentations. Papers prepared for the conference will be published in a symposium edition of the University of Washington Law Review. The University of Washington School of Law has a required first year course in Comparative and International Law.

The continued turmoil in Northern Africa and the Middle East is posing an immense challenge to global foreign policy. The unanimous vote by the United Nations Security Council to impose sanctions on Libyan leader Moammar Gadhafi and to refer his brutal repression of protests to the International Criminal Court represents an historic vote by China in favor of sanctions on another country for suppressing dissent. It is estimated that China has 30,000 citizens in Libya, which supplies 3 percent of China’s imports of oil. The temporary surge in oil prices last week that followed the shutdown of oil supplies from Libya spurred the government of Spain to lower that country’s national speed limit from 120 km/hour to 110 km/hour (from 74 to 68 miles per hours) in order to conserve gasoline.

A group of 41 members of the Parliament in the Democratic Republic of the Congo (DRC) are asking the government to redraw the boundaries of Africa’s oldest national park to permit oil exploration activities there. Virunga National Park is a World Heritage Site that is home to some of the famous mountain gorillas. But after Tullow Oil, a British company, discovered oil just west of the park in Uganda, Soco International and Dominion Petroleum have been pressing the DRC to grant them permission to drill in the park. Katrina Manson, Battle Over Oil in Congo National Park, Financial Times, Feb. 21, 2011.

Walmart continues to use its market power over suppliers to promote greener products. The company recently informed its suppliers that it would begin testing on June 1 to ensure that the products it carries do not contain polybrominated diphenyl ethers (PBDEs), a class of chemicals widely used as a flame retardant in a wide variety of products. Even though use of the chemical remains legal in the United States, studies have linked it to a variety of health problems. Last year EPA listed PDBEs as “chemicals of concern,” but it will take some time before the agency is able to regulate them, making Walmart’s action another example of voluntary private action to reduce risks to consumers. Lyndsey Layton, Wal-Mart Turns to “Retail Regulation” to Ban Flame Retardant, Washington Post, Feb. 27, 2011, at A4.

The Financial Times reported today that the size of land throughout the world planted with genetically modified (GM) crops increased by 10% in 2010 to 148 million hectares. This means that approximately 10 percent of all global cropland is now planted with genetically modified crops. Last year’s growth in GM crops represented the second largest growth since their commercial introduction in 1996.

My visit to Seattle coincide with that city’s lowest temperatures on record for this time of year. But I was delighted to get a chance to visit my brother and his family and to discover a wonderful boutique winery run by a lawyer that is making some of the best cabernets in Washington state. Tomorrow I am flying to Vermont to participate in Vermont Law School’s symposium on China’s Environmental Governance. I am looking forward to being reunited with China’s top environmental law scholars who will be participating in the symposium.

Reaction to Chevron/Ecuador Decision, US GHG Emissions Fall, Japanese Whale Hunt Ends Abruptly, House Rages Against the Environment (by Bob Percival)

2011-02-21T20:01:00.000-08:00

An Ecuadoran court’s $8.6 billion judgment against Chevron for polluting the Oriente region of the Amazon received considerable press attention last week. I was interviewed by reporters from several publications including the Christian Science Monitor (from both Quito and Boston, see http://www.csmonitor.com/Environment/2011/0218/In-Ecuador-s-landmark-9-billion-judgment-against-Chevron-all-sides-unhappy), Bloomberg Business News (from San Francisco, see http://www.bloomberg.com/news/2011-02-14/chevron-to-appeal-adverse-judgment-in-ecuador-pollution-case.html), Greenwire (from D.C., see http://www.nytimes.com/gwire/2011/02/16/16greenwire-despite-86b-ruling-long-road-remains-for-chevr-74410.html), BBC World News Mundo (from London see http://www.bbc.co.uk/mundo/noticias/2011/02/110218_ecuador_chevron_financiamiento_rg.shtml), and the San Francisco Chronicle (see http://articles.sfgate.com/2011-02-16/business/28538735_1_small-ecuadoran-town-luis-yanza-pablo-fajardo/3). Protests were held at Chevron’s headquarters in San Ramon, California, while the plaintiffs in Lago Agrio appealed the judgment as too low and Chevron filed a 31-page request for clarification of the judgment.

Considerable press attention focused on the hedge funds providing financial assistance to the plaintiffs. This was the focus of an interview I gave to Scott Tong on American Public Radio’s “Marketplace” program (see http://marketplace.publicradio.org/display/web/2011/02/15/pm-a-long-long-legal-bet/). The hedge funds stepped in to provide the plaintiffs with funding to continue their litigation after the defendants opened up several new forums, making the case more expensive to litigate. I noted that if this is a case of David against Goliath, the hedge funds are providing David with a lot of additional stones, helping to level the playing field between the two sides.

Perhaps the most astonishing press “spin” on the case came from the editorial page of the Wall Street Journal, which on Feb. 15 declared in an editorial entitled “Shakedown in Ecuador” (see http://online.wsj.com/article/SB10001424052748703652104576121941625806096.html?mod=googlenews_wsj) that “The Ecuador suit is a form of global forum shopping, with U.S. trial lawyers and NGOs trying to hold American companies hostage in the world's least accountable and transparent legal systems.” The Journal editors have thrice before denounced the lawsuit, but what is astonishingly false about their “forum-shopping” claim is that the plaintiffs originally filed suit in New York federal court in 1993 and the case was dismissed in favor of the Ecuadoran forum at Chevron’s behest in 2002. I was disturbed enough by this falsehood that I wrote a letter to the Journal editors which will be published in tomorrow’s edition (see http://online.wsj.com/article/SB10001424052748704900004576152370171056008.html).

Last week the U.S. Environmental Protection Agency (EPA) reported that emissions of greenhouse gases (GHGs) declined in 2009 for the second year in a row. EPA estimated that they declined by 6 percent in 2009 due to reduced economic activity caused by the global financial downturn and a shift from coal to natural gas in electricity generation. Total U.S. emissions of GHGs were estimated to be 5.5 billion metric tons in 2009, below the 5.92 billion tons emitted in 2008 and the 6.12 billion tons in 2007. John M. Broder, Emissions Fell in 2009, Showing Impact of Recession, N.Y. Times, Feb. 21, 2011. However, U.S. GHG emissions were still 7.4% above their level in 1990, the Kyoto Protocol baseline.

Last week the Japanese whaling fleet cut short its annual whale hunt in the Antarctic in part out of frustration that an environmental group had been so successful in obstructing its whaling activities. Sea Shepherd Conservation Society disrupted the whale hunt, reportedly because it has acquired vessels that are faster than those used by the Japanese whalers. The United Kingdom last week launched prosecutions against criminal gangs that have been shipping toxic waste to developing countries in the guise of recycling. Most of the 30 prosecutions involve electrical waste sent to West Africa, while others involve used tires and household waste sent to Asia. UK Takes Action Against Toxic Waste Gangs, Financial Times, Feb. 19, 2011.

While many brave people in the Middle East and Northern Africa are holding “days of rage” to protest their authoritarian governments, last week the new Republican majority in the U.S. House of Representatives held its own “Week of Rage” directed against the Environment. By week’s end the U.S. House of Representatives passed an appropriations bill that cuts EPA’s budget by 30% while barring any use of funds for nearly all the agency’s most significant current initiatives. The funding cuts clearly are directed more at crippling protection of the environment than at saving money. Amendments added during the week bar EPA from using funds to implement regulation of GHG emissions, disposal of coal ash and wastes from mountaintop removal mining, mercury emissions from powerplants, and enforcement of the Chesapeake Bay cleanup. They also defunded NOAA’s proposed Climate Service, barred U.S. contributions to the Intergovernmental Panel on Climate Change, and suspended payments under the Equal Access to Justice Act that allows successful plaintiffs to recover attorney’s fees against government agencies who take positions that are not “substantially justified” in fighting citizen suits. The House also barred the use of funds to implement certain energy efficiency measures, including the phaseout of incandescent lightbulbs. A big battle is likely in the Senate and a possible government shutdown looms if no compromise is reached between the two houses of Congress. Consider whether some of these measures, if enacted, could open the U.S. to charges that it is not carrying out commitments made in trade agreements to implement and enforce its environmental laws.

BP’S $20 billion settlement fund, far larger than the magnitude of the House’s environmental budget cuts, was the subject of controversy last week. In comments filed last week BP criticized fund administrator Kenneth Feinberg for providing settlements that it claims are too generous in calculating future losses. The fund has paid out $3.5 billion to settle interim claims and 100,000 people are now seeking final settlements. Final payments can commence after a two-week comment period on Feinberg’s proposed settlement criteria ends on March 2. BP’s comments can be viewed online at: www.gulfcoastclimsfacility.com

Ecuador Hits Chevron With $8.6 Billion Judgment, U.S. Court Blocks Enforcement, Namibia Coast a National Park, Deja Vu in U.S. House (by Bob Percival)

2011-02-14T18:18:00.000-08:00

After nearly two decades of litigation that began in the U.S. in the early 1990s, plaintiffs from the oil-contaminated Oriente region of Ecuador today won a $8.6 billion judgment against the Chevron Corporation in a trial court in Lago Agria, Ecuador. The plaintiffs claim that they have been harmed by pollution caused when Texaco, which Chevron acquired in 2001, developed oil fields there at the request of the government of Ecuador during the 1970s and 1980s. The judgment includes $5.39 billion to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat people affected by the pollution, $600 million to restore polluted water sources, $200 million to help native species recover, $150 million supply water to the community from unpolluted sources, and $100 million to create a community cultural reconstruction program. A Chevron spokesman denounced the judgment as “illegitimate,” “unenforceable,” “the product of fraud,” and “contrary to the legitimate scientific evidence.”

The judgment was widely anticipated, and six days before it was issued Chevron won a temporary restraining order from a federal district court in New York prospectively blocking enforcement in any court in the world of any judgment from the Ecuadoran court. The order is premised on Chevron’s allegations that the plaintiffs and their lawyers are engaged in a racketeering conspiracy to shake down the company. At a hearing in New York on February 8, Chevron alleged that lawyers and experts for the plaintiffs had doctored evidence. Ironically, Texaco could have had the lawsuit decided by courts in the U.S. during the early 1990s, but the company insisted that Ecuador was a more convenient forum. The federal court in New York dismissed the case on the condition that the company accept the jurisdiction of the courts of Ecuador. After a change of government, Ecuador no longer became the friendly forum Chevron had anticipated. The battle is likely to continue as the judgment is appealed in Ecuador and the parties fight over its enforceability in countries where Chevron has assets. Texaco (before being acquired by Chevron) pulled out of Ecuador after settling claims against it with the government.

Namibia just became the first country in the world to set aside its entire coastline as a national park. The park, which extends along all 976 miles of the nation’s coastline, covers an area larger than the entire country of Portugal. On Friday some of my environmental law students are leaving for Namibia to participate in Maryland’s new international clinic. While in Namibia they will be working on water rights issues under the direction of Professor Barbara Olshansky, a well known human rights lawyer. Professor Olshansky’s first major victory as an environmental lawyer came in 1993 when she prevailed over Floyd Abrams in the U.S. Court of Appeals for the Ninth Circuit while defending a California anti-greenwashing law defining what materials can be called recycled against a First Amendment challenge brought by advertising companies.

Last week the Committee on Energy and Commerce of the Republican-controlled U.S. House of Representatives held hearings on legislation to strip EPA of authority to regulate GHG emissions. The legislation is entitled “The Energy Tax Prevention Act of 2011” (Does that imply that something can be a tax even if it is not debated as such, exactly the opposite of what opponents of the constitutionality of the health care mandate are saying?).” EPA Administrator Lisa Jackson sparred with committee Republicans over the value of Clean Air Act regulations, including the agency’s plan to regulate emissions of greenhouse gases (GHGs). The committee’s website displays a banner reading: “In a power grab that rivals ObamaCare in audacity and job-killing effects, the EPA has claimed unto itself the power to regulate carbon dioxide, a byproduct of human and animal respiration and the basis for all life on earth, as a pollutant.” It seems the committee has forgotten that it was the U.S. Supreme Court in its April 2007 Massachusetts v. EPA decision that ruled that CO2 was a pollutant that must be regulated under the Clean Air Act if it endangers public health or the environment.

After consulting with industry groups, but not environmentalists, House Republicans have unveiled a list of “job-killing” regulations that sounds oddly reminiscent of the list prepared by President Reagan’s Task Force on Regulatory Relief exactly 30 years ago. One of the regulations targeted by the Reagan Task Force was EPA’s limit on the lead content of gasoline, which if relaxed would have caused enormous damage to public health by dramatically increasing lead poisoning. The Reagan effort ultimately backfired because it was not a serious effort to reform regulation, but rather a single-minded effort to reduce costs to industry, regardless of the benefits of such regulations. This was illustrated by the lead regulation which ultimately was strengthened prior to lead additives being banned from gasoline entirely, a measure now being adopted throughout the world.

On Monday February 7 I spoke at a program on “Free Market Environmentalism” sponsored by the Maryland chapter of the Federalist Society. Speaking for the Cato Foundation was my former classmate Doug Bandow. I noted that incorporating market mechanisms into some environmental regulations had proven useful, such as the SO2 emissions trading program in the Clean Air Act and catch quota for managing fisheries, but that the free market vision of going back entirely to the common law was a fantasy. Doug did an excellent job of representing the views that Cato often espouses, including cutting environmentally damaging subsidies, on which we could agee. I was surprised though that he was still bringing up the 1989 Alar controversy as an example of environmental alarmism when it illustrates how informed consumers more quickly forced the removal of an unreasonably dangerous pesticide from the market than regulators could.

Chevron RICO Suit, Rehearing Denied in Kiobel, Legal Victory for Chinese Organization, India Steel Mill Approved (by Bob Percival)

2011-02-07T18:22:00.001-08:00

On February 1 the Chevron Corporation filed a Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit against the plaintiffs, lawyers and environmental consultants for the plaintiffs in the Ecuador litigation over oil pollution of the Oriente region. The lawsuit was filed in federal district court for the southern district of New York. Chevron charges the defendants with a conspiracy to commit fraud by bringing “sham litigation” to extort money from Chevron by seeking damages for oil pollution of the Oriente region of Ecuador. Chevron is asking the court to declare that any judgment against it by the Ecuadoran court will be the result of fraud and therefore unenforceable. Chevron also is asking the defendants to pay its litigation costs. A copy of Chevron’s complaint is available online at: http://www.scribd.com/doc/48005141/2-1-11-Chevron-RICO-Filing. RICO litigation usually is brought against suspected members of organized crime. While I am familiar with SLAPP suits, Chevron’s litigation tactics seem to rise to a whole new level. What a contrast between Chevron’s litigation tactics in this case and its current multi-million dollar “We Care/We Agree” advertising campaign, which is parodied in an ad reproduced on my parallel website at: http://www.globalenvironmentallaw.com.

On Friday February 4, the U.S. Court of Appeals split 5-5 on the question of whether the court should rehear en banc the Kiobel case that in September produced a 2-1 panel ruling that corporations can never be held liable for violations of international law and thus are immune from suit under the Alien Tort Statute (see Oct. 4, 2011 blog post). Thus, by a single vote, the court denies a rehearing en banc, meaning that the U.S. Supreme Court is the only remaining avenue for the plaintiffs to challenge the panel decision. Of some significance should be the fact that Judge Katzmann, whose decision in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), was cited by the Kiobel majority, filed a separate dissent from the denial of rehearing disagreeing with the Kiobel majority’s interpretation of this decision.

Steve Wolfson, on of EPA’s top international attorneys, informs me that on December 30, 2010, the people’s court of Qingzhen city in the Guizhou province of China granted the All China Environment Federation an important legal victory in a lawsuit against a polluting paper mill. The law suit is significant because it is the first time that Chinese courts have allowed a lawyer’s organization to bring a successful action to redress harm from pollution. The Chinese court found that the paper mill had illegally discharged pollutants into a river and ordered that the mill be closed. The U.S. has recognized the standing of organizations to sue on behalf of individual members, which survived by a single vote an effort by the Reagan administration to abolish organizational standing in United Automobile Workers v. Brock, 477 U.S. 264 (1986).

EU authorities have recovered 7.5 million Euros worth of carbon dioxide emissions allowances stolen from the EU’s Emissions Trading System (ETS) in a hacking attack that originated in Austria. Following the attacks, which resulted in the theft of 29 million Euros worth of allowances spot trading in the EU ETS has been suspended since January 19. Flemming Emil Hansen, Authorities Recover Stolen Emission Credits, Wall St. J., Feb. 1, 2011. The recovery sets the stage for the reopening of EU carbon trading markets this week. Markets in Germany, France, the Netherlands and the U.K are expected to be the first to reopen trading. The EU ETS covers 12,000 steel, cement, and power plants and oil refineries that account for nearly half of the EU’s emissions of greenhouse gases. John W. Miller, Europe Emissions Markets Set to Reopen After Thefts, Wall St. Journal, Feb. 2, 2011, at A14.

On Monday January 31, the Indian Ministry of Environment and Forests approved construction of a long-delayed port and steel plant to be constructed by South Korea’s Posco in the Indian state of Orissa. The $12 billion project will be the largest single direct foreign investment in India to date. While approving the project, Jairam Ramesh, India’s environment minister, stressed that “laws on the environment and forests must be implemented seriously.” Environmentalists, tribes, and villagers who have been opposing the project reacted with anger to the decision. They have filed a lawsuit, which is still pending, to stop the project. Vikas Bajaj, India Approves $12 Billion South Korean Steel Mill Project, N.Y. Times, Jan. 31, 2011.

Dutch Lawmakers Question Shell, State of the Union, Change in the Middle East, Botswana Water Decision (by Bob Percival)

2011-01-31T20:44:00.000-08:00

On Wednesday January 26 the Economic Affairs Committee of the lower house of the Dutch Parliament held its long-awaited hearing on Royal Dutch Shell’s oil production activities in the Niger Delta. While conceding that the number of oil spills occurring in this area is “unacceptably high,” Ian Craig, Shell’s executive vice president for sub-Saharan Africa, blamed 70% of them on sabotage by militants or organized oil theft by others. Geert Ritsema of Friends of the Earth accused Shell of tolerating environmental damage in Nigeria that it never would accept in the Netherlands. Shell countered that it was not applying a double standard, citing its much better environmental record in Gabon where it did not face militant attacks. Ritsema argued that Shell’s practice of open burning (“flaring”) of excess gas from 100 wells in Nigeria released emissions equivalent to four million Dutch automobiles. A Dutch lawmaker argued that Shell should openly press the Nigerian government to stop corruption and oil theft, but Craig argued that these matters “should be discussed in private.” David Jolly, Dutch Lawmakers Question Shell on Oil Pollution in Nigeria, N.Y. Times, Jan. 26, 2011.

On Tuesday January 25 President Obama delivered his annual State of the Union message to a joint session of Congress. While pledging a renewed effort to eliminate obsolete regulations, Obama did not directly address climate change. He did challenge Congress to pursue a new goal of producing 80 percent of America’s electricity from clean-energy sources by the year 2035. This challenge initially surprised many observers, but it was subsequently learned that Obama’s definition of clean energy would rely heavily on increased use of natural gas and maybe even “clean coal” technology.

On Friday January 28, the U.S. marked the 25th anniversary of the space shuttle Challenger disaster, which killed seven astronauts. The tragedy occurred on the day President Reagan was to deliver a State of the Union message. I remember it well because the disaster occurred while I was testifying before Senator John Glenn, the first American astronaut to orbit the earth. Glenn was chairing a hearing of the Senate Governmental Affairs Committee on OMB’s abuses of power in blocking regulations by EPA and the Occupational Safety and Health Administration. I was one of the first witnesses because OMB Director James Miller had been delayed at a meeting with President Reagan at the White House to discuss the State of the Union message. I was testifying because I had brought the first lawsuit challenging the legality of OMB’s efforts to block EPA regulations on behalf of the Environmental Defense Fund for whom I worked. Senator Al Gore also was participating in the hearing and I recall their faces turning ashen when aides whispered the news to Glenn and Gore. They decided to continue the hearing and I did not learn about the disaster until after I finished testifying when one of Glenn’s aides told me. Coincidentally that afternoon the federal district court in Washington released its decision ruling that OMB had no authority to block the regulations. Environmental Defense Fund v. Thomas, 627 F. Supp. 566 (D.D.C. 1986).

As the world’s elite were gathering in Davos, Switzerland for the annual World Economic Forum, very different gatherings of people were taking place in Tunisia, Egypt, and other parts of the Middle East. The remarkable cascade in the Middle East began with Tunisians taking to the streets to force the end of President Zine al-Abidine Ben Ali’s 24 years in power. Egyptians are now doing the same in an effort to end President Hosni Mubarek’s nearly 30-year reign. Some have attributed the Tunisian protests in small part to the release of U.S. diplomatic cables by wikileaks that reported on astonishing levels of corruption by President Ben Ali and his family. Egypt’s government responded to the protests by shutting down the internet and cellphone traffic, a strategy that could easily backfire. Meanwhile Chinese internet censors are trying to keep China’s people from hearing about the protests in the Middle East. They reportedly have blocked web searches using the word “Egypt.” Jeremy Page, Beijing Blocks Protest Reports, Wall St. J., Jan. 31, 2011. Another jarring disclosure by the global press last week occurred in connection with Afghanistan’s decision to sign an agreement with the United Nations to end the use of child soldiers. The young boys in the Afghan military reportedly have been widely used as sex slaves by military commanders, a tradition known as “bacha bazi” (boy play) in Dari. Maria Abi-Habib, Officials Move to Curb Use of Underage Soldiers, Wall St. J., Jan. 30, 2011.

On Wednesday the New Mexico Supreme Court unanimously ruled that the state’s new governor Susana Martinez did not have the authority to prevent environmental regulations adopted by the previous administration from taking effect. The regulations require annual 3% reductions in greenhouse gas (GHG) emissions and control discharges of wastes from dairies. Arizona’s attorney general last week withdrew the state’s support for EPA’s “endangerment finding” for GHG emissions, which is being challenged in the U.S. Court of Appeals for the D.C. Circuit.

Last week a five-member Court of Appeals in Botswana overturned a decision that had barred the Baswara tribe from drilling new bore holes and using old ones to obtain water in the Central Kalahari Game Reserve. The decision is viewed as a major victory for the opposition Botswana Democratic Party. Baswara representatives are questioning whether the government will comply with the decision, citing the government’s failure to comply fully with a 2006 decision that had allowed the tribe to remain in the CKGR despite a government relocation program. A copy of the Court of Appeals decision is available online at: http://assets.survivalinternational.org/documents/545/bushmen-water-appeal-judgement-jan-2011.pdf

This week I attended the annual Macworld conference in San Francisco’s Moscone Center. Attendance appeared to be lower this year, but many companies were displaying cool new accessories and apps for Apple’s products. I was amazed at how many of these vendors were from foreign countries. I purchased a case for my iPhone that is made of baseball leather with stitching that gives it the look and feel of a baseball. The case is made by Trexta, a company headquartered in Turkey. There was considerable buzz about possible use of Near Field Communications “wave and pay” technology on the upcoming iPhone 5. The local press in San Francisco were trying to locate for comment the entrepreneur from Silicon Valley’s Narus who reportedly had sold Telecom Egypt the real time traffic intelligence equipment that facilitated that country’s internet shutdown.

Chinese NGOs Question Apple's Supply Chain, Hong Kong Biodiversity, New Obama Executive Order, European Carbon Trading Suspended (by Bob Percival)

2011-01-23T15:35:00.000-08:00

Last week Ma Jun’s Institute for Public and Environmental Affairs (IPE) released a report rating Apple, Inc. last in responsiveness to health and environmental concerns in its Chinese supply chain from among 29 global technology companies studied by the IPE. BT Group PLC and Hewlett Packard Co. were among the highest-rated companies. The report cited an incident in which 49 workers were poisoned by exposure to a toxic chemical at a Chinese touch screen assembly plant in Apple’s supply chain. Apple maintains that the supplier no longer uses the toxic chemical that sickened the workers and that its own supplier responsibility reports document the success of the supply chain auditing program it launched in 2006. Thirty-six Chinese NGOs participated in the “Green Choice” initiative that prepared the report, which is available (in Chinese) online at: http://www.ipe.org.cn/Upload/IPE报告/苹果的另一面_Draft+Final_20110118-3.pdf

Last week Hong Kong-based NGO Civic Exchange announced a new program to promote protection of biodiversity in the former British outpost. The program will include annual biodiversity conservation reviews and a new strategy to improve nature protection in the Hong Kong area. The strategy is outlined in a report Nature Conservtion: a New Policy Framework for Hong Kong,” which Civic Exchange prepared through funding from the ExxonMobil Hong Kong Ltd. A copy of the report, which is designed to enable Hong Kong to participate in the Convention on Biological Diversity, is available at: http://www.civic-exchange.org/wp/wp-content/uploads/2011/01/110121NatureConservationEN.pdf Civic Exchange will host the first summit of local environmental NGOs in Hong Kong on March 21.

On Tuesday January 18 President Obama signed a new executive order on regulatory review. A copy of the order is available online at: http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order The new executive order largely continues the type of regulatory review that has been in operation since September 1993 when President Clinton issued Executive Order 12866. It supplements that order by asking agencies within 120 days to develop and submit to OMB’s Office of Information and Regulatory Affairs (OIRA) plans to streamline, modify, expand or repeal existing regulations to make them more effective or less burdensome. Although some business groups hailed this as a step in the right direction, when contacted by reporters to cite specific examples of rules to be repealed, they did not respond. Binyamin Applebaum & Edward Wyatt, Obama May Find Useless Regulations Are Scarcer than Thought, N.Y. Times, Jan. 22, 2011, at B1. The regulations the U.S. Chamber of Commerce has complained about in the past, including EPA’s regulations of greehouse gas emissions, are unlikely to be among the agency’s or the administration’s candidates.

Ever since the federalization of U.S. environmental law during the Nixon administration, every president has used some form of regulatory review because presidents care intensely about the work of regulatory agencies. I have written extensively on regulatory review and I brought the first successful lawsuit challenging the Reagan administration’s abuse of it. See, e.g., “Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency” 54 Law & Cont. Problems 127 (1991); “Presidential Management of the Administrative State: The Not-So-Unitary,” 51 Duke L. J. 963 (2001); Environmental Defense Fund v. Thomas, 627 F.Supp. 566 (D.D.C. 1986). My overall conclusion is that if it is conducted even-handedly, regulatory review may have modest benefits in improving the quality of regulation and spurring agencies to do their jobs. However, as the experience of the Reagan administration demonstrated, it also can used as a tool to prevent agencies from carrying out their statutory duties, sacrificing public health and the environment and serving as a back channel for favored industries. While it is simply too early to tell if the new executive order will produce any significant change in how the Obama administration conducts regulatory review, Republican Majority Leader Eric Cantor expressed irritation that President Obama was claiming credit for what Cantor believes was his idea.

The European Commission (EC) suspended trading in carbon allowances on January 19 after the revelation that cyber pirates stole 7 million Euros worth of permits during online attacks over the last two months. The permits were stolen from the Czech Republic’s permit registry. The suspension will last at least a week as the EC determines how to increase cyber security. Security was enhanced after a similar cyber attack stole 4 million Euros worth of permits from Germany in early 2010. Carbon trading has been underway in Europe for six years. From 2005 to 2007 the permits were distributed to companies for free. Companies now have to pay for a portion of their quotas but the EC has proposed to require that all permits be purchased at auction beginning in 2013 for European power companies and in 2020 for other heavy industries. Joshua Chaffin, Hackers Cast Cloud Over EU Emissions Trade Scheme, Jan. 20, 2011, at 22.

On Wednesday January 19 my Global Environmental Law seminar met for the first time this semester. We were pleased to host guest speaker Craig Dilworth, an environmental philosopher who teaches at Uppsala University in Sweden. Dr. Dilworth explained the philosophy outlined in his book “Too Smart for Our Own Good: The Ecological Predicament of Humankind.” Explaining his “vicious cycle principle,” Dilworth argues that whenever technological development creates surplus, human population expands and creates resource scarcity due to human consumption and pollution. Dr. Dilworth was accompanied to class by David Zoll, former general counsel of the Chemical Manufacturers Association (now the American Chemical Council) and Sam Hopkins, who has long worked on population issues.

2010 Hottest Year, Oil Spill Report, "Crude" Outtakes Decision, British Protesters Freed, Wikileaks on Icelandic Whaling (by Bob Percival)

2011-01-16T20:36:00.000-08:00

On Wednesday January 12 the National Oceanic and Atmospheric Administration (NOAA) and NASA announced that 2010 tied 2005 as the warmest year since global temperature readings began to be recorded in 1880. The agencies reported that nine out of the ten warmest years on record have occurred in the last decade. NOAA scientists attributed the temperature anomalies to the influence of greenhouse gas (GHG) emissions.

Last week the U.S. Court of Appeals for the D.C. Circuit rejected a third request from the state of Texas to block EPA’s takeover of issuance of Clean Air Act permits in Texas. On Friday EPA held a hearing in Texas where its actions were widely supported by local environmental groups. Texas officials did not testify at the hearing. EPA Regional Administrator Al Armendariz stated that EPA was forced to take the action due to the refusal of Texas authorities to implement new requirements for controlling GHG emissions. Randy Lee Loftis, EPA Gets Citizen Backing in Texas Greenhouse-Gas Disp[ute, Dallas Morning News, Jan. 15, 2011.

On January 11 the President’s Commission on the Deepwater Hortizon oil spill released its final report. The report called for “fundamental reform” to produce dramatic improvements in oil industry safety practices. The Commission recommended that an independent safety agency be created to regulate offshore oil drilling and it called for significantly increased funding on oil spill response planning. The Commission expressed “serious concerns” about offshore drilling in Arctic waters off the northern coast of Alaska because of very limited industry response capabilities there. A copy of the report is available online at: http://www.oilspillcommission.gov/final-report. One indication of how eager the oil industry is to drill in Arctic waters was last week’s stock swap agreement between BP and Russia’s state-controlled Rosneft oil company. The agreement, which gives BP an additional 9.5% stake in Rosneft and Rosneft a 5% stake in BP, is expected to facilitate drilling by the companies in Russian Arctic waters. On January 11 the Trans Alaska pipeline restarted after a three-day shutdown caused by a leak at a pump station. While work continues to repair the damage, oil is flowing through the pipeline at a reduced rate.

On January 13 the U.S. Court of Appeals for the Second Circuit rejected the claims of a filmmaker who produced a documentary on the Ecuador litigation against Chevron that outtakes from his film are protected by the press privilege. Chevron sought the outtakes to bolster its claim that plaintiffs lawyers had colluded with Carlos Beristain, the special master appointed by the Ecuadoran court to assess environmental damage caused by oil drilling. In rejecting the press privilege the court emphasized that plaintiffs had asked Joe Berlinger, the filmmaker, to tell their story, which the court said undermined his claim that he collected the information for independent reporting. The court also noted that the film had been altered at the Ecuadoran plaintiffs’ request to delete scenes in which they interacted with the special master prior to his appointment. A copy of the decision, Chevron Corp. v. Berlinger, is available online at: http://www.ca2.uscourts.gov/decisions/isysquery/8b2ec3ba-a15a-46d8-a8ae-fcfe27105709/1/doc/10-1918_opn.pdf

On January 13 the U.S. Environmental Protection Agency (EPA) revoked a crucial Clean Water Act §404 permit that had been granted to Arch Coal for its proposed Spruce No. 1 mountaintop coal mining operation in Logan County, West Virginia. The project, which would have been one of the nation’s largest mountaintop removal operations, had been approved in 2007 by the George W. Bush administration. EPA concluded that by burying miles of streams under millions of tons of residue the project would have caused unacceptable environmental damage. The project reportedly is the only individual mountaintop mining operation to have been subject to a full blown environmental impact analysis. John M. Broder, U.S. Revoke Permit for West Virginia Mining Plan, N.Y. Times, Jan. 14, 2011, at A14.

On January 10 environmental activists who were scheduled to go on trial in Nottingham, England for plotting to occupy and temporarily shut down Britain’s largest coal-fired power plant had the charges dismissed against them. The dismissal came 12 hours after a British newspaper revealed that the group had been infiltrated by a government agent provocateur named Mark Kennedy. A jury previously had rejected the claim by other members of the group that they had a “lawful excuse” because they were acting to prevent greater harm of death and serious injury from the plant’s emissions. The defendants who had the charges dismissed argued that Mr. Kennedy, who assumed the fictitious name of Mark Stone, was responsible for involving them in the action. Kennedy has quit the police and gone into hiding abroad. The protesters previously convicted were given only minimal sentences earlier this month by Judge Jonathan Teare who stated that he had “no doubt that each of you acted with the highest possible motives.” John F. Burns, Charges Dropped Against British Protesters, N.Y. Times, Jan. 10, 2011.

On January 13 Wikileaks released diplomatic cables from the U.S. Embassy in Reykjavik, Iceland. The cables discussed the January 27, 2009 decision by Iceland’s outgoing Fisheries and Agriculture Minister Einar K. Gudfinson quietly to authorize a massive increase in commercial hunting of fin and minke whales from 2009 through 2013. The cables reported the initial anticipation that the minister who succeeded Gudfinson would quickly withdraw the order. But they subsequently noted that the new government claimed that it was legally bound by the action. The British and Swedish ambassadors proposed a strong, joint protest with the United States. The ambassadors from these three countries later were joined by those from Finland, Germany, France and the Netherlands at a meeting with the new minister to protest the action. The new minister Steingrimur J. Sigfusson expressed an interest in scaling back the new quotas, while noting that support for whaling in Iceland was so deap-seated it constituted a “clash of cultures” with the outside world. He also claimed that if he rescinded the quotas he might be removed from office by Parliament. At a subsequent meeting in April 2009 the minister confirmed that he had read a letter from the Whole Foods grocery conglomerate warning that it would boycott Icelandic products if whaling continued, but he “did not seem to take it seriously” according to the cable. “He admitted that he had received a stack of similar letters but hadn’t read them all.”

Oil Prices & Drilling Push, Regulatory "Hit List," Ecuador's Yasuni Fund, Dutch to Probe Shell in Nigeria, AALS (by Bob Percival)

2011-01-10T08:01:00.000-08:00

Last week the International Energy Agency (IEA) warned that soaring oil prices may threaten the global economic recovery. The IEA reported that the cost of oil imported by the 34 OECD countries had risen by $200 billion a year to $790 billion annually. “High Oil Prices Pose Threat to Global Economic Recovery” at http://www.iea.org/index_info.asp?id=1737. The American Petroleum Institute (API) has launched a campaign to open more areas of the United States to oil drilling. Even before the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (Presidential Commission) releases its final report next Tuesday, API is lobbying to lift restrictions on offshore and onshore drilling. API points to a study it commissioned predicting that if drilling were permitted off the east and west coasts of the U.S., the eastern Gulf of Mexico, the Rocky Mountains and the Alaska National Wildlife Refuge (ANWR),150,000 jobs could be directed created by 2025 and another 380,000 jobs indirectly. Ed Crooks, U.S. Oil Groups Seek Easing of Drilling Curbs, Financial Times, Jan. 4, 2011. Meanwhile EPA’s Environmental Appeals Board (EAB) has reversed the granting of air quality permits for offshore drilling in the Beaufort and Chukchi seas off the northern coast of Alaska. The EAB found that the permits were premised on an inadequate analysis of nitrogen dioxide emissions as claimed by environmental groups who challenged the permits.

Last week the Presidential Commission investigated the BP oil spill released a draft chapter whose conclusions sounded remarkably similar to those of previous investigations of BP accidents, as ProPublica’s Abraham Lustgarten reported. Lustgarten compared quotations from the draft chapter with those from a 2007 U.S. Chemical Safety and Hazard Investigation Board inquiry and an internal BP inquiry into an explosion at a BP refinery in Texas, and a 2003 Scottish Environment Protection Agency report into accidents that occurred in 2000 at BP’s refinery in Grangemouth, Scotland. See http://www.propublica.org/article/deja-vu-the-national-commission-report-on-bps-gulf-disaster-echoes-old-find Lustgarten concludes that BP does not seem to learn from its past mistakes.

As newly-elected officials take office, some are acting quickly to change environmental policies. Susana Martinez, the new governor of New Mexico who is a skeptic of climate change, blocked a regulation from taking effect that would have required 3% annual reductions in greenhouse gas (GHG) emissions in the state. She also blocked a regulation to control waste discharges from dairies and dismissed the members of the state’s Environmental Improvement Board. Felicity Barringer, 2 Environment Rules Halted in New Mexico, N.Y. Times, Feb. 6, 2011. Representative Darell Issa, the new chair of the House Committee on Oversight and Investigations, has written a letters to 150 business leaders asking them to identify regulations that should be relaxed or repealed. This is reminiscent of the Reagan Administration’s efforts to compile a regulatory “hit list” through its Vice Presidential Task Force on Regulatory Relief, chaired by George H.W. Bush. That task force also contacted business leaders, including many in the oil industry, and then pressed EPA to abolish limits on the lead content of gasoline. This effort badly backfired once its horrendous health consequences were appreciated and EPA ultimately was able to phase out leaded gasoline.

As reported in this blog on August 9, 2010, Ecuador has agreed to block development of massive oil reserves under its Yasuni National Park if it receives $3.2 billion in compensation over 13 years from the international community. Yasuni is one of the most biodiverse areas on earth with a single hectare of the park containing more species of trees than found in the U.S. and Canada combined. However, less than $2 million has been raised for the UN-administered trust fund to compensate Ecuador for not developing the oil. Ecuador’s government has announced that it will abandon its promise to block oil development if the fund does not receive $100 million by the end of 2011. While Norway has agreed to contribute $1 billion to compensate Indonesia for a two-year moratorium on the issuance of logging permits, it has declined to contribute to the Ecuador fund because the fund is not yet covered by the UN’s REDD (Reducing Emissions from Deforestation and Forest Degradation) program. David Blair, Ecuador’s Novel Plan to Save Rain Forest, Financial Times, Jan. 4, 2011, at 4.

The Dutch Parliament has announced that it will hold hearings on January 26 to probe the activities of Royal Dutch Shell in Nigeria. The hearings, which long have been sought by opposition parties in the Dutch Parliament, will examine widespread oil pollution in the Niger delta. Shell blames most of the pollution on sabotage and oil theft. Guy Chazan, Shell Faces Query on Nigeria, Wall St. J., Jan. 4, 2011, at A10.

Last night I returned from San Francisco where I attended the Annual Meeting of the American Association of Law Schools. At the conference I counted at least five publishers of law books who were holding drawings for free iPads, perhaps an indication that publishers are starting to appreciate the coming shift toward e-readers for law school textbooks. I attended several terrific programs including panels on water law, what future environmental lawyers should learn in law school, and the constitutionality of the Affordable Care and Patient Protection Act. My wife and I also found time to do our own field trips to Alcatraz and a fabulous culinary tour of the Mission District of San Francisco (see www.foodieadventures.com). Photos of these can be viewed online at: http://gallery.me.com/rperci/100765.

U.S. GHG Regulations Take Effect, New Congress, Tea Party and Cancun "Astroturf", Beijing Auto Limits, Review of 2010 Developments (by Bob Percival)

2011-01-02T17:45:00.000-08:00

Today (January 2) EPA regulations to control greenhouse gas (GHG) emissions from large new or modified sources (sources of more than 75,000 tons of carbon dioxide per year) take effect. The regulations are not horribly draconian -- they simply require these sources to use the best technology to control their emissions. Three weeks ago the U.S. Court of Appeals for the D.C. Circuit refused to stay the regulations, despite a legal challenge to them the court will hear. On December 30 Texas filed a new lawsuit against EPA in the D.C. Circuit challenging the agency’s decision to take over issuance of Clean Air Act permits in Texas response to the state’s refusal to implement the new GHG regulations. Texas previously had asked the U.S. Court of Appeals for the Fifth Circuit to block EPA’s takeover of permit-issuance authority in Texas, but the court denied the motion on December 29.

The new session of the U.S. Congress will convene this week with the Republicans taking control of the House of Representatives. In an op-ed on December 28, Congressman Fred Upton, the new chairman of the House Energy and Commerce Committee, decried EPA’s GHG regulations as “an unconstitutional power grad that will kill millions of jobs -- unless Congress steps in.” Fred Upton and Tim Phillips, How Congress Can Stop the EPA’s Power Grab, Wall St. J., Dec. 28, 2010. Upton proposes to have Congress “overturn” the regulations “outright,” but he recognizes that this will be politically difficult since the Republicans control only the House. His second best solution is “a sensible bipartisan compromise to mandate that the EPA delay its regulation until the courts complete” their review of them. Of course, as even Upton acknowledges, the regulations were issued by EPA in direct response to the Supreme Court’s decision in Massachusetts v. EPA, which makes his claim that they are “an unconstitutional power grab” ludicrous. I suspect that a major reason opponents of the EPA regulations are pressing for a stay is because the longer they remain in effect the harder it will be to ascribe to them the kind of dire consequences opponents currently are forecasting. When asked to predict what the biggest political surprise of 2011 will be, former Bush press secretary Dana Perino opined that Fred Upton will lead a successful charge to repeal the portion of the 2007 energy legislation he sponsored that mandates a phaseout of incandescent light bulbs by 2014.

For the second year in a row no new coal-fired powerplants commenced construction in the U.S. in 2010. While some environmentalists are hailing the death of coal as a source of new electric power generation in the U.S., coal-fired plants in Kansas, Illinois and Texas received permits last year and a project in Mississippi is about to begin construction. The nation’s largest generator of electric power, American Electric Power, has only one new coal-fired plant under construction, an “ultra supercritical” model that would meet the new EPA best technology standards. Steven Mufson, Coal’s Burnout, Washington Post, Jan. 2, 2010, at G1.

The co-author of Upton’s op-ed was Tim Phillips, president of Americans for Prosperity, an “astroturf” group founded by oil billionaire David Koch who helped spearhead the initiative to repeal California’s regulation of GHG emissions that California voters soundly defeated last November. On January 1 the Washington Post ran a profile of Ohio Tea Party activist Gena Bell who described how Americans for Prosperity gave her an all expense-paid trip to the Cancun climate summit last month. While Bell had looked forward to engaging in a genuine debate over climate change, she instead found herself “standing where she was told and smiling for the cameras” as a prop at rallies staged by the group. They gave her and other Tea Party activists they flew to Cancun t-shirts with the slogan “Bureaucrats Gone Wild” and had them hold a giant novelty check made out for $100 billion to mock proposals to help the developing world reduce GHG emissions. The article states that Bell found the experience “irritating” and doubted whether she would participate in similar events in the future. Amy Gardner, Tea Party at Turning Point as GOP Takes House Reins, Washington Post, Jan. 1, 2011, at A1.

With Republicans taking over the U.S. House of Representatives with many new Tea Party supporters, it would be nice for everyone to recall the issue that inspired the original Boston Tea Party: taxation without representation. If the Tea Party is true to these roots, its number one priority should be voting rights for the District of Columbia whose more than 601,000 residents have no voting representation in Congress. Wyoming, which has more than 18,000 fewer residents than D.C., is represented by two Senators and a Congressman. (Full disclosure: This issue particularly galls me since I have been a D.C. resident for more than 30 years since moving to Capitol Hill to clerk for Supreme Court Justice Byron White in 1979). Here’s a challenge: if Tea Party members want to demonstrate that they truly are not beholden to the Republican party and that they are loyal to the initial movement from which their name is taken, will a few brave souls step forward to champion D.C. voting rights, as Republican Senator Prescott Bush (father of one president and grandfather of another) and Republican President Eisenhower did to spur adoption of the Twenty-Third Amendment that at least gave D.C. electoral votes?

In an effort to combat horrendous traffic congestion, Beijing authorities have severely restricted the number of new automobiles they will license in 2011 to 240,000, about a third of the 750,000 licensed in 2010. Thus, instead of more than 2,000 new vehicles taking to the streets of China’s congested capital each day, only 657 will. The lucky licensees will be decided by lottery. During the first 11 hours of 2011 a total of 40,000 people applied for the lottery to receive new auto licenses. To deter Beijing residents from simply registering their cars elsewhere only cars licensed in Beijing will be allowed to enter the city center. China’s Administration of Taxation also increased the tax on small cars from 7.5% to 10%, eliminating a preferential low rate that had been designed to encourage the purchase of more fuel efficient vehicles.

With the arrival of 2011, it is time to look back on the top global environmental developments of 2010. Here is my list, in no particular order: (1) the BP oil spill in the Gulf of Mexico, (2) developments in transnational environmental tort litigation, including the continuing battle between Chevron and Ecuadoran plaintiffs, a Dutch court’s conviction of Trafigura, the Second Circuit’s Kiobel decision, and the Ninth Circuit’s Carijano decision permitting U.S. courts to hear a lawsuit against Occidental Petroleum for oil pollution in Peru; (3) the Chinese government’s more enlightened position on climate change and China’s push to become a global leader in green energy technology, (4) EPA’s development of GHG regulations and the failure of the U.S. Congress to enact climate change legislation, (5) the uneven, but determined European effort to transition to a greener energy infrastructure even as financial problems spurred cutbacks in renewable energy subsidies and France abandoned a planned carbon tax, (6) the Cancun conference building on Copenhagen’s recognition that a global, consensus multilateral agreement may no longer be a practical response to climate change, (7) burgeoning interest in the creation of specialized environmental courts in many countries, (8) the growing importance of sub-national environmental initiatives, including California’s program to reduce GHG emissions which is taking effect following voters’ overwhelming rejection of a referendum to repeal it, (9) surprising decisions in favor of environmental concerns in developing countries, such as the Costa Rican Administrative Litigation Court’s disapproval of Infinito Gold’s Crucitas gold mine, and (10) increased demands for transparency on the part of multinational corporations, particularly in extractive industries, as reflected in provisions in the Dodd-Frank legislation in the U.S. and Britain’s new Bribery Act.

Shark Legislation, Class Trailers, China's PITI, Iran Fuel Subsidies, Canada's Oilsands, EPA GHG Regulations (by Bob Percival)

2010-12-26T19:00:00.000-08:00

Before it adjourned last week the U.S. Congress approved the Shark Conservation Act of 2010 to restrict the practice of cutting the fins off sharks and then dumping the sharks overboard. The legislation requires any fishing vessel landing sharks in U.S. waters to keep their fins attached and it prevents nonfishing vessels from transporting fins without their carcasses. The legislation, which had been introduced by Guam Delegate Madeleine Bordallo, initially was approved by the U.S. House by voice vote in March 2009. Before it was approved in the Senate last week an exemption was added at the insistence of Senator Burr (R-N.C.) to allow those catching smooth dogfish off the coast of North Carolina to bring in their fins separately.

In October Apple Computer released the latest version of its popular iMovie software program (iMovie ‘11) that includes among its new features templates to make movie trailers. It struck me that it would be fun to make trailers for my upcoming classes. Last week I tried using the templates and was amazed at how easy it was produce movie trailers. I made them for my Global Environmental Law Seminar, my Constitutional Law class, and for the upcoming Stetson International Environmental Moot Court Competition that Maryland will be hosting in March. The trailers can be viewed online from with any browser that can view Quicktime files. The trailer for my Global Environmental Law seminar is at http://gallery.me.com/rperci#100744. The trailer for my Constitutional Law class, featuring video I shot at Independence Hall earlier this month after speaking at a conference in Philadelphia, can be viewed at http://gallery.me.com/rperci#100738. The International Environmental Moot Court trailer, which includes photos from previous competitions and from last May’s Jordanian National Moot Court Competition, can be viewed at http://gallery.me.com/rperci#100753.

Last week I had an opportunity to review an advance draft of the results of the second Pollution Information Transparency Index (PITI) for China, which will soon be published by the Beijing office of the Natural Resources Defense Council (NRDC) and Ma Jun’s Institute for Public and Environmental Affairs. PITI ranks Chinese cities on how well they are implementing China’s Open Information Law, which is similar to the U.S.’s Freedom of Information Act, with respect to environmental information. It has had a remarkable impact on some cities whose officials view it much like deans view the U.S. News rankings of schools in the United States. I will not steal their thunder in advance of the publication of the second PITI, but I can note a couple of positive developments it lauds that already are public information in China. Last March China’s Ministry of Environmental Protection (MEP) disclosed a list of hundreds of key enterprises whose emissions exceeded applicable standards, the first time the central government had disclosed monitoring results for major polluters. Hubei Province subsequently released a similar list for polluters in its region and in August 2010 the Chinese Ministry of Industry and Information Technology released a list of 2,087 companies that were being required to phase out outdated production facilities in 18 industries, including the iron, steel, cement and smelting industries. Some local governments also are engaging NGOs. In May 2010 Weihai City in Shandong Province held a public workshop on information disclosure with NGOs, the media, and officials of the local Environmental Protection Boards (EPBs). Last month Jiaxing City in Zhejiang Province held a similar public forum.

Last week Iran finally implemented its plan to reduce dramatically the $100 billion it has been spending annually to subsidize the price of fuel and other basic commodities. Officials estimated that the move would at least quadruple the price of gasoline while raising prices for electricity and water by threefold. To ease the impact of the reduced subsidies on its citizens the government is spending half of its cost savings to provide compensation payments that it promises to double next year. Drivers now will receive 16 gallons of gasoline per month at a price of approximately $1.52 per gallon and they may purchase additional gasoline for a price 75% higher, which is close to the world market price. Spain’s plan to reduce its costly subsidies for solar energy projects has come under fire from investors who claim that it will exacerbate the country’s banking crisis by forcing many solar producers into default. Because the Spanish government agreed to pay solar photovoltaic projects ten times the price of electricity generated from gas and coal, Spain now has 3,200 megawatts of solar capacity, more than six times what the government had expected to have by the end of 2010. Guy Chazan, Spain’s Cuts to Solar Aid Draw Fire, Wall Street J., Dec. 23, 2010.

On December 21 Canada’s Oilsands Advisory Panel released a report concluding that there is insufficient data to monitor the environmental effects of development of Canada’s oilsands. The panel had been appointed by former Canadian Environment Minister Jim Prentice. Canada’s current Environment Minister John Baird reacted to the report by announcing that the federal government of Canada accepts its findings and will work to establish a better system to monitor the environmental impact of oilsands development. Two other reports released this month - by Canada’s environment commissioner and the Royal Society of Canada also have faulted current environmental monitoring. U.S. environmental groups have asked the State Department to reject a Canadian request to double the size of Tanscanada Corporation’s Keystone pipeline for transporting oil from the Alberta area where the oilsands are concentrated. Edward Welsh & Nirmala Menon, Oil-Sands Monitoring Faulted in Report, Wall St. J., Dec. 22, 2010, at B4.

On December 23 the U.S. EPA announced that it had completed its plans for state greenhouse gas (GHG) permitting programs that will take effect in January. EPA will temporarily take over issuance of air permit in the states of Arizona, Arkansas, Florida, Idaho, Kansas, Oregon and Wyoming until these seven states have revised their programs to cover GHG emissions. Because Texas has refused to revise its air permitting program to include GHG emissions, EPA will take over the program. While this is the procedure specified in the Clean Air Act when a state implementation plan fails to meet federal standards, that did not stop Texas officials from denouncing it as “an arrogant act by an overreaching EPA that is trying to implement new, unnecessary controls on American industry.” James C. McKinley, Jr., “EPA Challenges Texas Over RUles on Emissions,” N.Y. Times, Dec. 23, 2010.

EPA also announced that it will propose new standards for controlling GHG emissions from power plants by July 2011 and for refineries by December 2011. Stung that many utility executives who have invested in clean energy projects support EPA’s new regulations on both GHG emissions and other pollutants, the Wall Street Journal ran an editorial last week denouncing “utility CEOs cheering on the Obama Administration’s plans to wipe out large portions of U.S. electric power capacity.” The editorial charged that “EPA is abusing environmental law to achieve policy goals that the democratic process has rejected, while also engineering a transfer of wealth to certain companies,” The EPA’s Utility Men, Wall St. J., Dec. 23, 2010, at A16. So companies who foresaw the need eventually to invest in clean energy sources because of long overdue regulations to improve protection of health and the environment are faulted by the Journal for (shockingly) actually making money at the expense of those who have profited for years from harming others with their pollution.

Russia Forest Road, Wikileaks, Culturomics, U.S. Sues BP, California GHG Regulations, SEC Regulations, New Counsel in Ecuador Suit (by Bob Percival)

2010-12-20T18:59:00.000-08:00

On Tuesday December 14, Russian Deputy Prime Minister Sergei Ivanov announced that the controversial Moscow-St. Petersburg toll road will be routed through the Khimki Forest after all, despite environmental protests that led President Dmitry Medvedev to suspend work on the project last August (see Aug. 29, 2010 blog post). Ivanov chaired a commission examining the controversial $8 billion road project. Russia’s ministry of natural resources announced that it would seek to provide greater protection for the remaining portions of the forest and that it would increase the compensation to be paid for the road’s damage to the forest from 3 billion to 4 billion rubles (approximately $130 million). Ivan Blokov, Greenpeace’s Russia program director, vowed to take the fight to Vinci, a French company involved in the road construction project.

Wikileaks continues to publish leaked cables from U.S. embassies. Of the more than 250,000 cables it reportedly possesses, a total of 7,992 deal with the “environmental affairs.” Cables published last week revealed that U.S. diplomats in Brazil saw President Lula de Silva as simply bowing to political reality when he decided in December 2009 to postpone enforcement of the Brazilian Forest Code’s requirement that rural landowners in the Amazon retain 80% of their forest holdings as reserves. Following the December 2009 Copenhagen Conference, U.S. diplomats specializing in Cuba complained that “Climate change is Fidel Castro’s latest pet project in which poor, socialist countries are the victims and rich, capitalist countries are entirely to blame. . . .Some element of the [Government of Cuba] may see climate change as a legitimate concern, but the view from the top is that of a political propaganda goldmine.” In November 2009 the U.S. Embassy at the Vatican notes that Pope Benedict is stressing environmental concerns. It reports: “While the Vatican's message on caring for the environment is loud and clear, its message on biotechnologies is still low-profile. Quietly supportive, the Church considers the choice of whether to embrace [gentically modified organisms] GMOs as a technical decision for farmers and governments. The Vatican's own scientific academy has stated that there is no evidence GMOs are harmful, and that they could indeed be part of addressing global food security. However, when individual Church leaders, for ideological reasons or ignorance, speak out against GMOs, the Vatican does not -- at least not yet -- feel that it is its duty to challenge them. Post will continue to lobby the Vatican to
speak up in favor of GMOs, in the hope that a louder voice in Rome will encourage individual Church leaders elsewhere to reconsider their critical views.” The cables also indicate that Saudi officials were privately telling U.S. diplomats that they understood the need for the world to work together to combat climate change even as they were publicly questioning the science behind it and doing everything they could to obstruct a global agreement at Copenhagen.

Last week a new searchable Google database was publicized that includes all 2 trillion words contained in 15 million books the company has scanned. The books represent about 12% of all books published in every language since the Gutenberg Bible in 1450. Researchers using the database have discovered that the number of words in the English language has nearly doubled in the past decade to more than 1 million words, including 500,000 that do not appear in any dictionary. The database, which is available online at http://ngrams.googlelabs.com/, allows one to search the relative frequency with which terms of up to five words appear in the database each year. This is spurring interest in a new field that has been dubbed “culturomics” to explore changes over time in the popularity of certain terms. A search for the term “global environmental law” indicates that the term first appeared in books in 1980, but increased significantly in use during the 1990s. A chart showing the frequency of the use of "global environmental law" in books between 1975 and 2000 is displayed as part of my December 19, 2010 post on my parallel blog at: www.globalenvironmentallaw.com.

On Wednesday December 15, the U.S. government filed a lawsuit seeking civil penalties against BP and others involved in drilling and insuring the Macondo well whose blowout caused the catastrophic oil spill in the Gulf of Mexico. The lawsuit, which was filed in federal district court in New Orleans, did not specify a dollar amount of the penalties the government is seeking, but they could run to more than $20 billion. The suit was filed to meet a deadline imposed by the judge overseeing the consolidated oil spill litigation.

On December 15 the U.S. Securities and Exchange Commission (SEC) issued its proposed rule implementing the “conflict minerals” provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (see July 18, 2010 blog post). The proposed rule would require a broad array of companies, including retailers who sell store brand products, that use certain minerals to report to the SEC what steps they have taken to verify that the minerals did not help fund rebel groups in the Democratic Republic of Congo. A fact sheet on the proposed rule, on which public comment will be accepted until January 31, 2011, is available online at: http://www.sec.gov/news/press/2010/2010-247.htm. The SEC also proposed a rule to implement another provision of the Dodd-Frank legislation that requires resource extraction industries to report on payments they made to foreign governments.

On Thursday December 16, the California Air Resources Board by a 9-1 vote adopted regulations to implement the state’s cap-and-trade program to reduce greenhouse gas (GHG) emissions in the state by 15 percent below 2012 levels by 2020. Felicity Barringer, California Approves Stringent Pollution Controls, N.Y. Times, Dec. 17, 2010, at A19.

Plaintiffs suing the Chevron Corporation over pollution of the Oriente region of Ecuador have hired new legal counsel in response to Chevron’s efforts to discredit its existing lawyers. The plaintiffs have hired the Washington law firm of Patton Boggs and they have received new funding from Burford Capital Ltd., a London-based hedge fund that invests in litigation. Ben Casselman & Angel Gonzalez, Chevron Forces Legal Change, Wall St. J., Dec. 18-19, 2010, at B4.

Last week Beijing’s Municipal Commission of Transport indicated that it is considering severe new measures to combat horrendous traffic congestion in China’s capital. The measures may include congestion fees and barring vehicles from certain roads at certain times based on license plate numbers. There are now 4.7 million cars in use in Beijing, 2.1 million more than in 2005 - more than 1,000 new cars a day. Chinese officials estimate that if present trends continue traffic will slow to an average speed of 15 kilometers (9 miles) per hour on the city’s expressways by 2015.
 Construction started last week on Israel’s first large project to generate electricity from solar energy. The project in the Arava Valley in southern Israel will employ 18,000 solar panesl on 20 acres of land to generate 5 megawatts of electricity. Larger projects are in the planning stage as Israel seeks to meet its goal of generating 10% of its energy from renewable sources by the year 2020. Charles Levinson, In Israel, Big Solar Field Begins to Rise, Wall St. J., Dec. 14, 2010, at B12.

Cancun Agreement, EPA GHG Regulations, Supreme Court to Hear Climate Suit, Iran Killer Smog (by Bob Percival)

2010-12-12T19:33:00.000-08:00

After all night talks on Friday December 10 and the last minute dismissal of objections from Bolivia by Mexican Foreign Minister Patricia Espinosa, who was chairing the conference, the nations participating in COP-16 adopted the Cancun Agreement. The agreement postpones until next year’s conference in South Africa a decision on whether to extend the Kyoto Protocol for a year. But it adopts 33 pages of text outlining a framework for further progress negotiating emission reductions, monitoring and verifying emissions, funding adaptation and forest protection, and facilitating technology transfer. The most remarkable achievement of the conference seems to be the willingness of all but one of the 194 nations to put aside their differences to reach agreement on a path forward. An advance, unedited copy of the agreement is available online at: http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf

Last week there were two very significant developments in climate change litigation in the U.S. courts. On Friday December 10, the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA regulations governing emissions of greenhouse gases (GHGs) that are scheduled to take effect on January 2, 2011. In a brief order the court stated that the plaintiffs had not met the standard for a stay because they “have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).” The court also ordered that the legal challenges to EPA’s endangerment finding, vehicle rule, timing rule and tailoring rule be heard by the same panel of the court on the same day. While these decisions do not address the merits of the litigation in which 35 petitioners are raising 80 challenges to four EPA rules, they will allow the rules to take effect for now.

On Monday December 6, the U.S. Supreme Court announced that it had agreed to review the Second Circuit’s September 2009 decision (see Sept. 27, 2009 blog post) to allow a public nuisance action by a group of states to go to trial against major electric utilities with coal-fired powerplants. Justice Sotomayor did not participate in the decision to review the case, probably because she initially was on the Second Circuit panel that heard oral argument in the case, even though she was not on the panel that decided it after she became a Supreme Court Justice. In the Supreme Court the case will be known as American Electric Power v. Connecticut (No. 10-174). The U.S. is supporting the utilities by claiming that EPA’s actions to regulate GHG emissions should preempt the lawsuit. The utilities would like a broader ruling that lawsuits involving climate change should not be heard by the courts because they are nonjusticiable political questions. Justice Kennedy’s vote may be critical to the outcome in the case. With Justice Sotomayor’s recusal, the best the states could do is likeluy to be a 4-4 split, if Kennedy, Ginsburg, Kagan and Breyer voted in their favor. This would affirm the decision below and allow the lawsuits, which seek an injunction ordering gradual reductions in GHG emissions and not damages, to go forward.

On Thursday I spoke at a conference held in Philadelphia on “Significant Legal Developments Affecting the Chemical Industry.” I discussed China’s new program for regulating new chemicals that is modeled in part on the EU’s REACH program. One of the other speakers, a lawyer who represents Exxon, presented a litany of the arguments used by climate change deniers and reported a “growing consensus” that climate change science “simply isn’t there.” He expressed hope that the Supreme Court’s ultimate decision in the AEP v. Connecticut lawsuit would bury climate change litigation that he claimed is being brought by greedy lawyers seeking contingency fees (an observation not applicable to the AEP v. Connecticut litigation which is being brought by government officials and does not seek damages).

Horrendous air pollution continued to afflict Iran this week, reportedly causing thousands of deaths. Iran’s minister of health said that emergency room admissions of people with respiratory problems increased 30% and an unofficial report put recent deaths from pollution at 2,500. Some Iranians are blaming the pollution on Western sanctions that have forced Iran to place greater reliance on domestic oil refineries to produce gasoline. Iranian gasoline reportedly has 10 times more particulates than imported gas. Farnaz Fassihi, Iranians Blame Smog on West’s Sanctions, Wall St. J., Dec. 11-12, 2010, at A8.

Now that classes are finished, I had a very busy week making presentations -- four in five days. On Monday December 6 I presented a paper promoting a petroleum price stabilization tax as a means for promoting investment in green energy technology at a meeting held in Berlin by the American Institute for Contemporary German Studies (AICGS). The meeting, part of AICGS’s Translatlantic Climate and Energy Dialogue, was held in the historic Haus Huth, the only building in Postdamer Platz that escaped World War II without significant damage. On Sunday afternoon I toured the Topography of Terror, an exhibit built on the site of Hitler’s bunker, that documents Hitler’s meticulous efforts to neutralize the legal system. I had hoped to fly back to D.C. Monday night, but mechanical troubles with the plane from Berlin to Frankfurt stranded me in Frankfurt for the night, so on Tuesday I flew from Frankfurt directly to New York where I joined my wife to attend a spectacular performance of “The Messiah” at the St. Thomas Church. On Wednesday I flew back to D.C. and spoke to a group of Rawlings Leadership Fellows in College Park at a seminar on environmental leadership. After the chemical industry conference in Philadelphia on Thursday, on Friday I gave a day-long workshop on forestry protection to a group of visiting Chinese officials from Hunan Province.

Cancun Negotiations, BBC Talk Show, Wikileaks, Conflict Minerals, Student Films, Qatar World Cup (by Bob Percival)

2010-12-05T01:42:00.000-08:00

Last Monday representatives of 193 nations began the 16th Conference of the Parties to the UN Framework Convention on Climate Change (COP-16) in Cancun, Mexico. Elizabeth Burleson has posted a guest blog report from Cancun. There are reports that the U.S. and China are making progress in negotiations concerning how to monitor and verify greenhouse gas (GHG) emissions. A proposal to extend the GHG reduction commitments in the Kyoto Protocol beyond their current 2012 expiration date has met with resistance from Japan, Russia and Canada. The talks are scheduled to conclude on Friday December 10.

On Friday December 3, I was a guest on the BBC World Service’s “World, Have Your Say” program to discuss climate change. The program is a kind of global talk show with callers from all over the world interacting with the panelists. We discussed the impact of individual behavior on climate change, the importance of collective action, and the political barriers to an enforceable global agreement. Callers from England, Latvia, Sweden, Mozambique, Belgium, South Africa, New Zealand, Mexico and Botswana spoke during the hour-long program and emails from India, Afghanistan, Uganda, Ireland, and Canada were read. A tape of the program is available online at: http://www.bbc.co.uk/programmes/p00c4pnd

The release of an enormous cache of confidential cables from U.S. diplomats by Wikileaks has caused considerable controversy. I noticed in the initial subject index Wikileaks had prepared that “Environmental Affairs“ was listed as among the most frequent subject discussed in the cables, which may reflect the growing importance of environmental diplomacy. There seem to be few surprises pertaining to the environment in the material released so far. EU External Affairs Minister Chris Patten is quoted in an April 2004 cable from the U.S. Embassy in Brussels as stating that Russia is willing to ratify the Kyoto Protocol in order to gain admittance to the World Trade Organization. A September 2009 cable from the U.S. embassy in Moscow explores why the U.S. should engage and assist Russia in a crackdown on illegal logging there.

The U.S. Securities and Exchange Commission (SEC) is considering how to implement the conflict minerals disclosure provisions of the Dodd/Frank Wall Street Financial Reform and Consumer Protection Act (see July 18, 2010 blog entry). The Wall Street Journal reports that U.S. retailers such as Walmart and Target who carry their own private label products are arguing that they should be exempt from the law because they do not exercise direct control over how these products are manufactured. Jessica Holzer, “Retailers Fight to Escape ‘Conflict Minerals’ Law,” Wall St. J., Dec. 2, 2010, at B1. How the SEC crafts its regulations implementing the law could have a major impact on the extent to which it encourages companies to green their supply chains.

On Monday December 1 my Environmental Law class screened the initial cuts of the short films the students made for this year’s Environmental Law Film Festival. The students made nine films. They included: a lego version of the 1972 film “Silent Running,” a sock puppet rock opera on oil drilling in the Arctic National Wildlife Refuge, the little mermaid takes on ocean pollution, an interview with a couple who were featured in BP’s “Beyond Petroleum” ad campaign, oysters in the Chesapeake Bay, geoengineering, the Leadership in Environmental Energy and Design (LEED) program, the story of the Patapsco River, and the health hazards of jumping into Baltimore Harbor. The films will be submitted to a panel of judges who will vote for the “Golden Tree” awards that will be presented to the students on March 23.

As the U.S. Environmental Protection Agency (EPA) celebrated its 40th anniversary last week, horrendous air pollution afflicted both Shanghai and Tehran. Many Chinese believe that Shanghai’s severe pollution is associated with the end of temporary measures to keep the air clean during the World Expo that closed on October 31. Air pollution was so bad in Tehran that the government closed public offices, banks and universities for a “pollution holiday” last Wednesday.

On Thursday FIFA awarded the 2022 World Cup to Qatar, the country that has by far the world’s largest GHG emissions per capita - 46 metric tons of CO2 per person annually in 2006, compared to 27.5 tons/person in second place United Arab Emirates and 19.3 tons/person in seventh-place U.S. To cope with summer temperatures that can reach 130 degrees Fahrenheit, Qatar plans to air condition the outdoor stadiums, though they are exploring using solar energy to power the cooling systems. Qatar will build nine new soccer stadiums to host the event, but it plans to dismantle and recycle some of them to developing nations after the event.

The U.S. Supreme Court had the Connecticut v. American Electric Power certiorari petition on its conference list for Friday December 3. It may announce tomorrow whether or not it will review the decision by the U.S. Court of Appeals for the 2nd Circuit allowing a common law nuisance action premised on climate change to go forward against large utilities that operate coal-fired powerplants.

On a personal note, my wife received wonderful news last Wednesday when her oncologist declared her chemotherapy complete and her cancer in remission for now. We celebrated together before I left for Europe. I am now in snowy Berlin, Germany where I will be making a presentation tomorrow morning on how to encourage green energy innovation at a conference sponsored by the American Institute for Contemporary German Studies (AICGS).

Guest Blog Post on Cancun Negotiations by Elizabeth Burleson

2010-12-04T10:29:00.000-08:00

Elizabeth Burleson, a visiting professor at the University of Oregon School of Law, has been spending the week at the Cancun climate change negotiations. She submitted this report, which also was shared with the environmental lawprofs listserv. Alan Miller has had to cancel his trip to Cancun.

COP 16 Innovation and Diffusion Update (6pm on Friday December 3) by Elizabeth Burleson

Slow negotiations are creeping forward regarding a new Climate Technology Mechanism, Technology Secretariat, Technology Fund, and a Technology Clearinghouse. I have spoken with World Bank, German, Japanese, G77+China, and a range of other state party, inter-governmental, and non-governmental delegates on efforts underway to removing bracketed language from the negotiating text. The emerging picture is one of retaining good will by postponing controversy. It remains to be seen to what degree technology transfer commitments will emerge as confidence building measures. Finance and technology transfer have been split, leaving many concerned about the means by which innovation and diffusion of environmentally sound technology may come about. Little discussion of the TRIPS / UNFCCC nexus has occurred here or elsewhere. On the bright side, genuinely environmentally sound technology transfer remains an area where mitigation and adaptation can be advanced together.

Global Tiger Forum, ICCAT Conference, Gulf Oil Spill Update, COP-16 in Cancun (by Bob Percival)

2010-11-28T15:17:00.000-08:00

Last week representatives of the 13 countries where tigers still exist in the wild gathered in St. Petersburg, Russia for an International Tiger Conservation Forum. World Wildlife Fund Director General Jim Leape told the forum that if present trends continue tigers in the wild could become extinct by the year 2022, the next Chinese “year of the tiger.” Three of the nine tiger subspecies -- the Bali, Caspian and Javan tigers -- have become extinct in the last 70 years. Countries represented at the forum pledged renewed cooperation to save the tiger including pledges of an additional $127 million for a Global Tiger Recovery Programme. World Bank President Robert Zoellick announced plans for a $100 million loan to help Nepal, Bangladesh and Bhutan with tiger conservation efforts.

The conference was hosted by Russian Prime Minister Vladimir Putin who declared that the fate of the tiger raises “issues that are critical for the entire planet, humanity and its future.” This represented a rare instance in which Putin has spoken out in favor of conservation efforts, perhaps because the tiger fits with the image of strength he seeks to cultivate. Radhika Lokesh, India’s consul general in St. Petersburg, announced that India would add eight tiger reserves to the 39 it already has and would increase efforts to relocate villages away from tiger habitat.

Delegates from 48 countries have just concluded a two-week conference in Paris to discuss how to protect Atlantic fisheries that are declining due to overfishing. At their 17th annual meeting, members of the International Commission for the Conservation of Atlantic Tunas (ICCAT) voted to ban the fishing and sale of seven species of sharks, but rejected proposals for deep cuts in the harvesting of bluefin tuna. They agreed to reduce 2011 bluefin quotas by only 4% from 13,500 to 12,900 tons. The decision was widely criticized by environmental organizations, including Greenpeace, which sharply criticized the secrecy that surrounded the negotiations. Environmental NGOs also denounced the group’s failure to adopt strong measures to address noncompliance with quotas.

Last week the National Commission on the BP Deepwater Horizon Oil Spill released two staff working papers and the BP Compensation Fund administered by Ken Feinberg shifted into a new phase. The Commission, appointed by President Obama last May, released a report concluding that in the two decades since the 1989 Exxon Valdez spill and the enactment of the Oil Pollution Act of 1990 (OPA90) there had been scant development of oil spill response technology even as oil exploration technology changed rapidly. The report concluded that “industry and government underfunded response R&D, and, as a result, the clean-up technology used” to respond to the spill was “dated and inadequate” (http://www.oilspillcommission.gov/document/responseclean-technology-research-development-and-bp-deepwater-horizon-oil-spill). The second staff report examined efforts to kill the Macondo well, noting that BP had no proven technology for stopping such a deepwater spill and that government agencies were unprepared to oversee the efforts to stop it (http://www.oilspillcommission.gov/document/stopping-spill-five-month-effort-kill-macondo-well). Last week BP’s Gulf Coast Claims Facility, the $20 billion compensation fund run by Ken Feinberg, began accepting claims for final payment of damages from the spill. A copy of the Protocol governing such claims is available online at: http://www.GulfCoastClaimsFacility.com/proto_4 Claimants accepting final payment must “waive any rights the Claimant may have against BP and any other potentially liable parties to assert additional claims, to file an individual legal action, to participate in other legal actions associated with the Spill, or to submit any claim for payment by the National Pollution Funds Center.”

Tomorrow the 16th Conference of the Parties (COP-16) to the United Nations Framework Convention on Climate Change begins in Cancun, Mexico. Expectations for a global agreement to control emissions of greenhouse gases (GHGs) following the 2012 expiration of the Kyoto Protocol have been greatly scaled back as have the number of world leaders who plan to attend the conference. I hope to be able to post guest blog reports from Cancun from Elizabeth Burleson and Alan Miller like they submitted from Copenhagen last year. Due to the failure of Congress to pass cap-and-trade legislation the U.S. arrives at the conference even less capable than China of backing up the submission it made in response to the Copenhagen Accord. The U.S. promised a 17% reduction in its GHG emissions from 2005 levels by the year 2020 (only a 4% reduction from Kyoto’s 1990 baseline) based on what the Waxman-Markey legislation would have achieved. China pledged to reduce the carbon intensity of its economy (GHG emissions per unit of gross domestic product) by 40-45% from 2005 levels by 2020, something that is being incorporated into its new Five Year Plan. (A list of Copenhagen Accord submissions is available online at: http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments). Air pollution was terrible in Beijing last week, as a friend who lives there confirmed in an email to me. The U.S. embassy tweeted that it was “crazy bad” as coal-fired heating systems started up to cope with the cold.

On Tuesday November 23 I spoke on global environmental law to an undergraduate class that is part of the multi-disciplinary Environmental Science and Policy Program at the University of Maryland in College Park. I was very impressed with the class, which is taught by Maryland law alum Joanna Goger. The Environmental Science and Policy Program reflects the increasing focus on environmental issues that is occurring across disciplines at many graduate and undergraduate educational institutions.

A gallery of photos from Maryland’s 2010 Environmental Law Winetasting party, described in the November 21 blog post, is now available online at: http://gallery.me.com/rperci#100735. The theme of each year’s event is “wine -- nature’s thanks for preserving the earth.”

Alex Wang Visit, Int'l Clinical Conference, Mongolia Water & Forest Law, BP Spill Report (by Bob Percival)

2010-11-22T19:51:00.000-08:00

Last week was International Law Week at the University of Maryland School of Law. On Monday November 15 we hosted Alex Wang, director of the Environmental Law & Governance Project at the Beijing office of the Natural Resources Defense Council (NRDC). Alex spoke to my Administrative Law class about his work to develop a Pollution Information Transparency Index (PITI) in China. The PITI provides annual ratings of Chinese cities on how well they are implementing China’s Open Information Law, which became effective in May 2008. This is a brilliant project because the local governments are where the power is in China and the wide publicity this kind of U.S. News ranking of cities has received has led many local officials to approach NRDC inquiring about how they can improve their ratings. Alex also spoke about the state of environmental law in China at a lunch for students from the Maryland Environmental Law Society and the Asian and Pacific Law Society.

From Wednesday November 17 to Friday November 19 the University of Maryland Law School hosted a conference on “Re-imagining International Clinical Law.” I was the luncheon speaker on Thursday November 18 and in my talk I discussed the history of my work on global environmental law and how globalization is affecting legal education. I emphasized the need to break down disciplinary barriers that separate clinical education from other parts of the academy and how the “Globalizing Clinical Education” conference that Maryland sponsored in April 2007 tried to encourage U.S. clinicians to expand the focus of their work to embrace global concerns. Friday’s sessions included considerable brainstorming about how to structure international clinical work such as the clinics that Maryland is operating that send our students to Namibia, Mexico, and China.

In 1995 I visited Mongolia to present a week-long environmental law workshop for that country’s new government in a program sponsored by Maryland’s Institutional Reform of the Informal Sector (IRIS) program. One of my indelible memories of that experience, aside from how cold it was in Ulan Bator in February, is overhearing a mining company executive tell a new employee on the flight into the country that as long as you “wear a tie” while visiting the Environment Ministry you don’t have to worry much about the country’s environmental regulations. In July of 2009, Mongolia enacted a new Water and Forest Law that prohibits mining activities in water basins and forest areas. As a result of the law, Dashdorj Zorigt, the country’s minister for mineral resources and energy, has suspended the licenses of 254 gold mining enterprises. A list of 1,700 of the country’s 4,000 other licensed mining enterprises is being reviewed for possible revocation to comply with the law. Under the law exemptions can be granted for mines with “strategic deposits” of minerals, but the Mongolian government can then acquire equity stakes in such projects. Peter Stein, Mongolia Reviews Mine Licenses, Wall St. J., Nov. 20-21, 2010, at B3.

On Tuesday November 16, the National Academy of Engineering released its interim report on the BP oil spill. The report, which had been commissioned by Interior Secretary Ken Salazar last May, concluded that further investigation was necessary before firm conclusions could be drawn about the causes of the spill. But it spread plenty of preliminary blame around, citing a “lack of management discipline” and “lack of onboard expertise and of clearly defined responsibilities” on the Deepwater Horizon oil rig. The report also faulted government regulators for failing to have “sufficient in-house expertise and technical capabilities” to evaluate the safety of industry practices and it noted that regulations had lagged behind the development of new deep water drilling technologies. A copy of the interim report is available at: http://www.nationalacademies.org/includes/DH_Interim_Report_final.pdf

A fierce battle has broken out between Congressmen Joe Barton and Fred Upton over who will assume the chairmanship of the powerful House Energy and Commerce Committee when Republicans assume control of the U.S. House of Representatives in January. Barton, who has been the ranking minority member of the committee, is well known for his insistence that U.S. officials should apologize to BP for asking them to create a compensation fund for the Gulf oil spill. While term limits on committee leadership normally would preclude Barton from taking the chairmanship, he is asking for a waiver and arguing that his chief rival Rep. Fred Upton should be denied the chairmanship because he voted in favor of the Energy Policy Act Amendments of 2007 that have banned the sale of incandescent light bulbs effective in 2014. Stephanie Kirchgaessner, Light Bulb Dispute Darkens Contest to Lead House Energy Panel, Financial Times, Nov. 19, 2010, at 4.

Bush's "Decision Points" Largely Ignores the Environment, Beijing Environmental Court, Widener Talk & Fordham Conference (by Bob Percival)

2010-11-14T16:00:00.001-08:00

Last Monday marked the release of former President George W. Bush’s memoir “Decision Points.” While I have not yet read much of the 512-page book, I have been able to search it electronically to confirm that it makes scant mention of any environmental issues. This is no surprise given the track record of the Bush administration on environmental issues during his eight years in office. Bush notes that the architect of the home he built at his Texas ranch used geothermal heat and recycled water to reduce its environmental impact and in a footnote about governors he mentions that he appointed Governor Mike Leavitt of Utah to become his “Environmental Protection Agency director and Health and Human Services secretary.” There is no other mention of EPA, no mention of the Interior Department, or of Christie Todd Whitman, Gail Norton, or Dirk Kempthorne, and the only time the word “regulation” appears is in connection with the financial crisis. Of course, former President Clinton’s “My Life” memoir, which is nearly twice the length of Bush’s book, mentions EPA Administrator Carol Browner only three times and one of those is in connection with her reaction to the Monica Lewinsky scandal.

Bush’s abrupt March 2001 decision to abandon his campaign promise to regulate emissions of CO2 is never mentioned in “Decision Points” and there are only two references to “climate change”. Bush states that he “worked with President Hu (Jintao of China) to find common ground on issues from North Korea to climate change.” The only other mention of global warming or climate change is his description of his efforts to convince other world leaders that it should not be the primary focus of the G-8 summit in 2007. Bush states that he “was willing to be constructive on the issue,” noting that in his 2006 State of the Union message he had decried America’s addiction to oil “a line that didn’t go over so well with some friends back in Texas.” After citing his efforts to promote alternatives to oil and to bypass “the flawed Kyoto Protocol,” he states: “I worried that the intense focus on climate change would cause nations to overlook the desperate immediate needs of the developing world.” Bush states that he told Angela Merkel, the meeting chair: “If world leaders are going to sit around talking about something that might be a problem fifty years from now, we’d better do something about the people dying from AIDS and malaria right now.” At the end of the book Bush states that by focusing on his most crucial decisions he devotes “just a few words to my record on energy and the environment, and I do not describe my decision to create the largest marine conservation areas in the world.”

Like many other countries, China has been experimenting with the creation of specialized environmental courts in various parts of the country. On Friday November 12, the city of Beijing received its first environmental court, which is located in Yanqing County in northwest Beijing. The court will be empowered to hear civil, administrative, and criminal cases involving environmental pollution. According to the China Daily, it is hoped that the court will be more effective in stopping environmental violations because it can issue administrative orders, award damages and levy criminal penalties against violators. Beijing First Environmental Court Was Established, China Daily, Nov. 14, 2010.

On Tuesday November 9 I visited Widener University School of Law in Harrisburg, Pennsylvania. I gave a luncheon talk on “Liability for Environmental Harm and Emerging Global Environmental Law” as part of the Widener Environmental Law Center’s Environmental Law Distinguished Speaker Series. Professor John Dernbach introduced me. Participating in the luncheon via videoconference were Widener faculty from their Wilmington campus, including Professors Jim May and David Hodas. I started my talk with a short video clip of Professor May performing a post-banquet serenade at the IUCN Academy of Environmental Law Colloquium in Ghent.

On Friday November 12 I spoke at a conference on “Presidential Influence Over Administrative Action,” which was held at Fordham University Law School in New York City. I developed a special interest in this topic as a result of bringing the first successful lawsuit against the Office of Management and Budget’s Office of Information and Regulatory Affairs for illegally blocking EPA’s promulgation of a regulation for which a statutory deadline had expired (EDF v. Thomas, 627 F.Supp. 566 (D.D.C. 1986)). In my talk, “Who’s In Charge? Should the President Have Directive Authority Over Regulatory Decisions Entrusted by Law to Agency Heads?” I argued that while the president’s removal authority gives him enormous influence over agency decisions, he ultimately does not have the authority to dictate them when disagreements arise. Columbia University law professor Peter Strauss gave a presentation in which he supported my view. He also provided a brilliant dissection of the Supreme Court’s recent Free Enterprise Fund decision where the Court struck down an effort by Congress to insulate from presidential removal officers of an agency (the Public Company Accounting Oversight Board) within another agency (the Securities and Exchange Commission). Professor Nina Mendelson of the University of Michigan Law School gave a presentation arguing for a presumption in favor of presidential directive authority. However, she agreed that the president could not sign Federal Register notices promulgating regulations when a statute requires that they be issued by an agency head.

Unfortunately, I could not stay for the afternoon panels of the Fordham conference because I had to be back in Baltimore for our Environmental Law Program’s annual Winetasting Party. We had another large turnout of alumni, students and faculty who had the opportunity to taste 76 different wines from a dozen countries. The wines included some old Bordeauxs from three different Médoc second growths, including three different vintages of Chateau Pichon Lalande, one third growth winery and some old vintage port. Alumni Jani Laskaris won the annual contest to guess the mystery wine, correctly guessing that it was a Greek cabernet, but missing the vintage year.

U.S. Midterm Elections Deepen the Divide, Collapse of U.S. Carbon Trading, EPA Nabs Most Wanted Suspect, Teaching the BP Spill (by Bob Percival)

2010-11-08T20:34:00.000-08:00

On Tuesday November 2, the U.S. electorate went to the polls for the 2010 midterm election. As a result of the election, Republicans seized control of the U.S. House of Representatives with a net gain of at least 60 seats. Republicans also gained 6 seats in the Senate, leaving the Democrats with a 53-47 majority. Citing figures compiled by Daily Kos blogger R.L. Miller and Think Progress, the Washington Post reported that at least 35 of the 85 new Republican members of the House are climate change deniers as are 5 of the 6 new Republican senators. This makes it virtually certain that the U.S. Congress will not pass legislation to control emissions of greenhouse gases (GHGs), leaving the task of regulation entirely to EPA which may face fierce opposition from Republicans in Congress. Since the Republicans control only the House many of these battles may be fought over the power of the purse with the House refusing to approve appropriations for EPA activities in an effort to force concessions. One wonders whether too much effort was put into cutting deals with large corporations to win their support for cap-and-trade legislation and not enough effort to educate the grassroots about the importance of actions to control GHG emissions. In a post-election press conference President Obama acknowledged a need to shift strategy, perhaps by emphasizing clean energy and green jobs legislation. Juliet Eilperin & Steven Mufson, Obama SHifting Climate Strategy After GOP Gains, Washington Post, Nov. 5, 2010, at A3.

Even as the U.S. Congress was tilting decidedly against environmental interests, Californians decisively defeated Proposition 23, which would have suspended AB 32, the state’s ambitious program to control GHG emissions. The initiative received less than 40 percent of the vote, losing by a margin of 21 percentage points, the largest defeat of any of the voter initiatives on the ballot, despite an expensive campaign in its favor funded by Texas oil companies. Maryland reelected its Democratic governor Martin O’Malley by a large margin (56 to 42%), spurning the effort by former Republican governor Bob Ehrlich to reclaim the office. While Ehrlich had reasonably decent environmental credentials, even he felt compelled to become a climate “skeptic,” using the flimsy excuse that the “East Anglia emails” had changed his mind.

The failure of Congress to adopt legislation to control GHG emissions will lead to the demise of carbon trading markets in the U.S. Intercontinental Exchange (ICE), which owns the Chicago Climate Exchange and the Chicago Climate Futures Exchange, announced last week that after the end of the year it no longer will process voluntary carbon trades in the U.S. in the absence of legislation that makes such trades valuable. ICE remains bullish on European carbon trading markets where it is earning robust profits. Hal Weitzman, End Looms for Carbon Trading in U.S., Financial Times, November 2, 2010, at 20.

On Friday November 5 a panel of the United Nations released a report proposing to raise $100 billion annually to help developing countries combat climate change through measures to price carbon emissions at $20-25 per ton as well as fees on international aviation and shipping and a tax on foreign exchange transactions. Rejecting a “one size fits all” approach, the panel left it to individual governments to choose the measures they would adopt to meet the financials goals. Fiona Harvey, UN Wants Taxes to Fund Climate Change Fight, Financial Times, Nov. 6-7, 2010, at 3.

A fugitive who was on the U.S. Environmental Protection Agency’s list of most wanted criminal suspects was arrested last week. Albania Deleon, who had disappeared prior to sentencing for environmental crimes in connection with running a fraudulent asbestos training institute, was arrested in Santo Domingo, Dominican Republic. EPA has maintained a list of most wanted suspects for environmental crimes for the last two years. Ms. Deleon is the first woman to be on the list. Leslie Kaufman, Woman Wanted by E.P.A. Is Arrested, N.Y. Times, Nov. 2, 2010.

On Wednesday November 3, the day after the election, my former student Neal Kemkar who is a special assistant to the counselor to the Secretary of Interior came to my Environmental Law class to help us conduct a session on the BP oil spill. Prior to the class we distributed to the students copies of the October 1, 2010 memo that Michael Bromwich, director of the Bureau of Ocean Energy Management, Regulation and Enforcement, had prepared for Secretary Salazar concerning options for lifting the moratorium on offshore drilling. We asked the students to choose from among the five options in the memo and to defend their choice. Then we gave them copies of Secretary Salazar’s memo explaining the option that he selected. I have been trying to integrate aspects of the BP oil spill throughout my environmental law class. When we studied NEPA we examined the Council of Environmental Quality’s August 16, 2010 “Report Regarding the Minerals Management Service’s National Environmental Policy Act Policies, Practices, and Procedures as They Relate to Outer Continental Shelf Oil and Gas Exploration and Development.” The students considered whether the spill could have been prevented if additional environmental assessment had been conducted, an issue that generated considerable skepticism given the gross inadequacies of some of the assumptions in the environmental reviews that were conducted.

University of Chile V Jornadas, Nagoya CBD COP-10 (by Bob Percival)

2010-11-01T20:53:00.000-07:00

Yesterday I returned from a week in Chile where I spoke at the Fifth Conference on Environmental Law (V Jornadas) sponsored by the University of Chile’s Center for Environmental Law (Centro Derecho Ambiental or CDA). Every two years the University of Chile’s CDA holds one of the most outstanding environmental law conferences in the world. This year’s theme was “Environmental Law in Times of Reform.” I spoke at the opening of the conference on Wednesday October 27, following an opening address by Maria Ignacia Benítez Pereira, Chile’s Minister of the Environment.

Chile is upgrading its environmental laws by replacing a relatively weak and decentralized system with a new and more powerful federal environmental agency that will have responsibility not only for pollution control, but also for management of protected areas. In fact, the minister indicated that the Environment Ministry may become the largest agency in the entire Chilean government. Even the election of a new and more conservative government, which took power in March 2010, has not slowed down the progress of environmental reform. In fact, the government of Sebastián Piñera is said to have speeded up the process of reform. It was striking to hear the praise the new environment minister heaped on her predecessor, Ana Lya Uriarte, who is now a professor at the CDA. Environmental protection seems to be such a priority for Chile that there is bipartisan support for strengthening the country’s environmental laws. After some of the first public demonstrations in Chile organized through Facebook and Twitter, President Piñera surprised environmentalists by agreeing to cancel a new coal-fired powerplant in northern Chile.

I was delighted to be reunited with Carlos SIlva, a former student of mine, who has become the chief prosecutor for the Chilean Environment Ministry. My wife, who is responding well to chemotherapy, accompanied me on the trip and we had a wonderful time visiting the places we used to hang out at while waiting for our daughter’s adoption to be approved. We also were delighted to spend an afternoon on a private tour of Almaviva winery in Puente Alto, the Santiago suburb where our daughter was born. Our luggage did not make a close connection in Miami so I had to purchase a coat, tie and dress shirt at a Santiago department store in order to look presentable for my talk. We were able to inspect the rescue capsule that was used to pull the 33 trapped Chilean miners to safety, which was on display in the Plaza Constitucion in front of the Law Moneda presidential palace. Photos of the trip are available online at: http://gallery.me.com/rperci#100734.

Like China, Chile appears to be a country on the cusp between the developing and developed worlds. While Chilean courts have not been friendly to public interest environmental litigation, slow progress is being made. Last year a court finally blocked a project for having an inadequate environmental impact assessment. The government was still able to proceed with the project within a few months, disappointing many environmentalists. Another court has required a private landowner who illegally destroyed thousand-year old trees to pay compensation for ecological damages. While Chile’s emissions of greenhouse gases (GHG) are small in absolute terms, they are growing rapidly as the country’s economy expands. Even though the Kyoto Protocol does not require Chile to reduce its GHG emissions, the government has pledged to reduce them. A pilot program asking Chileans in one jurisdiction to buy carbon offsets when they renew their driver’s registration received a 20% positive response. Some concern was expressed about the impact of GHG footprint labeling program in France on the export of Chilean goods to Europe.

In their presentation on environmental courts, Rock and Kitty Pring from the University of Denver noted that the Chilean government is considering establishing a national environmental tribunal. Surprisingly, they found that the primary motivation for the tribunal is coming from private industry, which is fearful that the new national environmental agency will be too powerful. The environmental tribunal would serve as a vehicle for industry to appeal decisions by the Ministry of Environment, though environmental NGOs would be allowed to appear before the tribunal as amici.

Meanwhile the Tenth Conference of the Parties to the Convention on Biological Diversity (COP-10) concluded in Nagoya, Japan, which some hopeful developments. The 193 countries represented at the conference committed to increase their efforts to protect endangered species and developed countries agreed to share more of the benefits of genetic resources obtained from the developing world. The parties agreed a 10-year strategy to boost protected land areas to 17% of the world and to inxrease marine protected areas to cover 10% of the oceans by 2020. Unfortunately there was less agreement on measures to increase funding from developed countries to assist developing countries in protecting habitat for endangered species.