Global Environmental Law: New Research

Ricardo Luis Lorenzetti, the Chief Justice of Argentina, has sent me a copy of his wonderful new book, Teoría del Derecho Ambiental (Theory of Environmental Law). The book, which is in Spanish, argues that environmental law represents a new paradigm that should change the way we think about many different areas of law. The book begins by discussing elements of the environmental paradigm and the paradigm’s impact on values and economics. It then discusses environmental law and its principles and values. The third chapter addresses environmental risk and uncertainty and principles of prevention and precaution and how they should change the legal system’s approach to environmental issues. The book then discusses implementation and enforcement of environmental standards.

Adding greatly to the value of the book is a 128-page appendix that provides details on nearly 100 environmental cases that have been brought in Argentine courts during the last decade. The cases are organized by the type of action: amparo, cautelares, competencia, daños y perjuicios, inconstitucionalidad, and others (including a few criminal cases). This rich book will take me some time to digest, but it will be immensely valuable to my project with Tseming Yang to develop the first casebook on global environmental law. I am immensely grateful to Chief Justice Lorenzetti for sending me a copy of his book, which our library also is purchasing.

On Friday Tseming and I had a conference call with our casebook editor, John Devins of Aspen Publishing. We reviewed the production schedule for the project and agreed that we would make every effort to ensure that the book is available for use in class by the fall semester 2009.

Another great addition to the growing literature on global environmental law is Lesley McAllister’s new book: Making Law Matter: Environmental Protection & Legal Institutions in Brazil. Lesley is a law professor at the University of San Diego School of Law. The book is published by Stanford University Press for whom I reviewed the book manuscript. It compares environmental enforcement in different Brazilian states and assesses the influence of the Brazilian Ministério Público. Tseming and I will be featuring Professor McAllister’s findings in the enforcement chapter of our global environmental law casebook.

As the opening of the Olympics in China approaches on August 8, considerable attention is being focused on efforts to clean up the environment in Beijing. While China’s ambitious plans to take half the cars in Beijing off the road are now being implemented, they do not seem to have ensured acceptable levels of air pollution. While air quality was considerably improved in Beijing early last week, by the end of the week, it was once again at unhealthy levels. Weather conditions will probably have more effect on air quality during the Olympics than any other single factor. If it rains and is windy air quality may be very good so long as the winds do not involve a dust storm off the desert.

Latest Riachuelo Decision & Return from China

On July 8, 2008 the Supreme Court of Argentina issued another remarkable ruling in its ongoing effort to clean up the Matanza -Riacheulo River Basin in Buenos Aires. In June 2006 the Supreme Court ordered the federal, provincial and local governments to develop a plan to remediate severe environmental contamination that threatens the health of millions of poor residents of the area (see blog entry for October 8, 2007 on my other site at: www.globalenvironmentallaw.com under "weekly blog"). In response to this order, the governments agreed to create a new Riachuelo River Basin Authority and to develop a long-term cleanup plan. In September 2006 the Supreme Court held landmark public hearings where government agencies, polluting companies, and NGOs presented their views on how to clean up the area. After listening to the testimony of some of the companies, Chief Justice Lorenzetti remarked that they tried to make it sound as if “the river polluted itself.” The new decision by the Supreme Court seeks to focus and speed up the cleanup process. It directs the River Basin Authority to inspect all businesses in the basin within 30 days and it directs all polluting companies to present their own cleanup plans within the same period. Measures to prevent clandestine waste dumping and illegal settlements must be in place within six months. The Court specified that any failure to comply with these orders could result in fines being levied by it personally against National Environment Secretary Romina Piccolotti, the head of the River Basin Authority.

The Center for Human Rights and the Environment (CEDHA) based in Cordoba, Argentina states that the Court’s decision “is as historic as it is controversial.” It is “the first time in Argentine history that the Supreme Court is engaging directly in defining public environmental policy”. A copy of the Court’s decision (in Spanish) is available at: http://www.cedha.org.ar/docs/fallo_riachuelo080708.pdf. CEDHA’s July 15th press release reacting to the decision is available at: http://www.cedha.org.ar/en/more_information/river.php. I wish to thank Nestor Cafferatta for sending me a copy of the Court’s decision.

Last Tuesday I left Beijing and moved back to the United States. The night before I left Wang Canfa hosted me for a farewell dinner. We went to the Baguobuyi Restaurant. Following dinner we watched a terrific demonstration of traditional Chinese mask dancing. Also at dinner was Wang Jing, my student assistant, who accompanied me to the airport on Tuesday. I will really miss her. I cannot imagine a better group of hosts than I had during my semester at the China University of Political Science and Law.

During the upcoming fall semester I will be back at Maryland teaching Environmental Law and Administrative Law. But I plan to continue working closely with my many friends in the environmental community in China. I have just completed a short article “The Challenge of Chinese Environmental Law” that will be published in the fall 2008 edition of The International Environmental News, a newsletter published by the International Law Section of the American Bar Association. In September I will be on a panel on Chinese environmental law at the annual fall meeting of the ABA’s Section on Environment, Energy and Resources in Phoenix. As soon as my classes are completed at Maryland in early December, I plan to return to China to host an environmental law film festival and awards ceremony at the China University of Political Science and Law and to work with the Chinese entrants in the upcoming International Environmental Moot Court Competition.

There are many things that I will miss about living in Beijing, including the following:
THINGS I WILL MISS ABOUT BEIJING
My wonderful Chinese students who made this the most rewarding teaching experience of my life
The Center for Legal Assistance to Pollution Victims (Wang Canfa, Xu Kedzu, Zhang Jingjing)
World class restaurants (Blu Lobster, Hatsune, Made in China, Noble Court, Lan)
Tui Travel and my travel agents April Mo and Winwin Song
Fellow Fulbrighters
The great sense of humor exhibited by my Mandarin tutor
Foot massages at Dragonfly
Late night conversations with Dan Guttman, Zhang ZeeZee and Alan Lepp.
Home delivery of the China Daily
Oriental Plaza
Exploring the Great Wall in three different locations
Beijing’s proximity to so many great weekend travel destinations
The doormen at my Centennial Heights apartment
Quick lunches at Circling Sushi just before leaving for class
Watching the progress of construction on the new CCTV towers (“the pants”)

There also are a few things that I will not miss about living in Beijing, including the following:
THINGS I WILL NOT MISS ABOUT BEIJING
Air pollution that makes seeing blue sky or white clouds a rare event
Being unable to use tap water even to brush your teeth
Taxis without working seat belts
Traffic that does not stop even for pedestrians in crosswalks with a green light
Cellphone spam on China Mobile
Poorly qualified posers representing the U.S. point of view on CCTV-9’s “Dialogue” program
Moments of terror from near collisions in taxis
Scammers who say they “just want to practice their English”
Hawkers who won’t take “no” for an answer even when you say it in Chinese
Censorship of CNN International and BBC news reports on topics sensitive to Chinese government

Amazingly, despite my five months living in Beijing, there are several places I never managed to visit:
PLACES I FAILED TO VISIT ON THIS TRIP, BUT WILL BE SURE TO SEE NEXT TIME
Beijing Zoo (last visited in 1981)
Inside of the National Theater (“the Egg”)
Inside of the National Olympic Stadium (“the Bird’s Nest”)
Inside of the National Aquatic Center (“the Water Bubble”)
Summer Palace (last visited in 1981)

Yunnan Province & Macau

This week, my final full week in China, included some diverse travel experiences. Early on Monday morning my daughter Marita and I flew from Chengdu in Sichuan Province to Lijiang in Yunnan Province. We visited a Naxi village outside of Lijiang in the morning. A local woman invited us into her house, served us tea, and showed us around her extended family compound. In the afternoon we visited Jade Dragon Snow Mountain, an enormous rock massif that overlooks Lijiang. The highest peak of the rock massif, which reminded me a bit of Torres del Paine in Patagonia, rises to a height of 5,596 meters (or 18,359 feet). We took a chairlift up the mountain to the Glacier Park at an elevation of 4,506 meters (14,783 feet). While I have previously climbed to elevations above 20,000 feet, both Marita and I were feeling the altitude so we did not spend long there.

On Tuesday we drove over the Lijiang Pass to the other side of Jade Dragon Snow Mountain to hike to the Tiger Leaping Gorge. Tiger Leaping Gorge is one of the deepest canyons in the world and is one of the few places in China where environmentalists have been successful (for now) in stopping a plan by the Chinese government to build a dam. The gorge is a 9-mile long canyon formed by the Yangtze River. From the end of the road on the east side of the river we hiked along a three-mile trail to the most dramatic point in the gorge where the tiger allegedly leapt over the rocks to give the gorge its name. A tiger statue has been erected there. The trail is cut out of the side of a sheer mountain cliff and in places the trail has been replaced by tunnels dug into the cliffs to protect hikers from falling rocks. Several minders with megaphones are posted on the trail to urge hikers to hug the side of the cliff so that they will be less exposed to rockfalls. The scenery was truly spectacular, although the Yangtze River is chocolate in color at this point as a result of runoff into it even though it is not far from its mountain source.

On Wednesday Marita and I flew from Lijiang to Kunming and then back to Beijing. Photos of our trip to Yunnan Province are posted online at: http://gallery.mac.com/rperci/100297.

Marita returned to the U.S. on Thursday. On Thursday night I went to a farewell dinner for some of the Fulbright scholars who are in Beijing at the Tenggali-Tala Mongolian Restaurant. On Friday I flew to Macau for the weekend. Macau, a former Portuguese enclave near Hong Kong, is a fascinating combination of old and new, east and west. Gambling is legal there, which attracts many tourists who arrive by ferry from Hong Kong. Macau now boasts the world’s largest casino, but I discovered that its airport is a bit primitive. When it rains, all airport operations are suspended, which meant that I had to wait one hour and forty-five minutes before my bag was unloaded from my plane after I arrived. I visited some of the casinos, but did not gamble. On Saturday I hiked across the Macau peninsula and ate lunch at Littoral, a wonderful Portuguese restaurant that had great seafood (and port wine).

I am now back in Beijing. After a farewell dinner tomorrow night, I move back to the U.S. on Tuesday. In the weeks to come I will have lots more news about global environmental law and less about my travels.

WHO Project, Return to China & Panda Breeding Base

While spending the weekend in Buenos Aires last Sunday, I attempted to make a day trip to Montevideo, Uruguay. However, after I boarded the Busquebus ferry in Puerto Madera intense fog set in and delayed the boat’s departure for several hours, forcing me to abandon my plans and to stay in Buenos Aires. On Monday June 30 I had a great meeting with Carlos Dora from the World Health Organization (WHO) who is directing a project on which I am consulting to advise developing countries on the potential for using environmental law to recover for damage to public health caused by pollution. On Monday afternoon I flew back to Santiago to catch my return flight to the United States, arriving on Tuesday morning. During the 26 hours that I was back in the D.C. area I had a nice visit with my family and made a quick stop at work in Baltimore.

On Wednesday July 2 I returned to China with my daughter Marita who is 19 years old. It is Marita’s first trip to China. We arrived in Beijing on Thursday afternoon and brushed off jet lag by joining Zhang Jingjing and a group of my Chinese students for dinner. On Friday morning Marita and I walked from my apartment to Tiananmen Square and then we visited the 798 Art District in northeast Beijing. On Friday afternoon my student Wang Xiahui joined us for a shopping expedition to the Pearl Market and the Silk Market. On Saturday we joined Zhang Jingjing and a group of her friends for an exploration of an area of the Great Wall at Jiangkou that is rarely visited by tourists. After a stop for lunch at a local home in the area two hours northeast of Beijing, we hiked up a mountain to the Wall and enjoyed some truly spectacular scenery with few other people around. On Sunday night my friends Dan Guttman, Zhong Zeezee, and Alan Lepp joined Marita and I for dinner and then came over to my apartment to watch the films my environmental law students made.

On Sunday morning Marita and I flew to Chengdu to visit the Chengdu Research Base of Giant Panda Breeding. Prior to last May’s earthquake, we had been planning to visit the Wolong Panda Research Center in the mountains outside of Chengdu adjoining the protected area that is the largest habitat for pandas in the wild. However, the earthquake caused severe damage to the Center, killing five staff members and one panda, and it is now closed to the public. Instead of visiting Wolong, we went to the Chengdu Research Base where 60 pandas currently live. The Chengdu Base has the most successful captive breeding program for pandas in the world. We spent two and a half hours at the Base observing pandas and watching a movie that explained the panda breeding program and how pandas grow and develop. In return for a substantial donation to the Base, Marita was given an opportunity to hold a panda cub, 8-month old Shu Ling. Because pandas grow very fast this 8-month old cub was nearly as large as Marita. Photos of Marita in Beijing and Chengdu are posted online at: http://gallery.mac.com/rperci#100280

On Sunday night we had dinner at a famous local restaurant in Chengdu with Chen Xiang Zu, his wife, and Xu Rong, the husband of Zhang Jingjing’s best friend Delia. Xiang Zu and his wife are retired physicians who formerly worked in the area hardest hit by the May earthquake. They described what it was like to be there during the quake and their frantic efforts to reunite with their families. Xiang Zu offered to take us on a tour of the quake-affected area, but we have to leave in the early morning to fly to Yunnan Province.

My Chinese students have finished their final examinations in Environmental Law and Comparative Environmental Law. I am now grading them and I will submit the grades before I return to the U.S. the week after next.

Univ. of Chile IV Jornadas & Garrison Lecture

On Monday night I flew to Santiago, Chile to speak at the University of Chile’s IV Jornadas de Dercho Ambiental. When I arrived in Santiago on Tuesday morning, I discovered that the airline had sent my bag to Buenos Aires by mistake. It was not until late Tuesday night that my bag arrived at my hotel, relieving my fears that I would have to deliver my presentation wearing the only clothes I had with me for nearly two days.

I gave the second presentation at the opening session following a talk by Ana Lya Uriarte, the head of Chile’s EPA (the Comisión Nacional del Medio Ambiente or CONAMA). Señora Uriarte discussed the government of Chile’s ambitious plans to completely reorganize CONAMA into a cabinet-level Ministry of the Environment with an independent Superintedencia to enforce Chile’s environmental laws. I spoke about “The Emergence of Global Environmental Law” and I showed photos of environmental conditions in China, as well as video clips from the environmental law movies my Chinese students made. My slides had been translated into Spanish, as was my paper, which was published as the opening chapter in an impressive book released by the conference sponsor, the Centro de Derecho Ambiental, on the final day of the conference.

The conference was terrific with its sessions featuring simultaneous translation into English and French. Speakers from Argentina, France, and Denmark also participated in the conference. The large audience was particularly impressive because it featured government officials from national and provincial agencies from all over Chile adn representatives from 10 of the 14 schools of the University of Chile. They engaged the speakers in wide-ranging discussions about the future of environmental law in Chile. Rafael Ansejo, a former CONAMA director, argued that the reorganization outlined by Señora Uriarte would only be successful if the President of Chile demonstrated the poltical will to make environmental protection a top priority.

Nestor Cafferatta, a professor at the University of Buenos Aires gave a great presentation on the use of criminal law to enforce environmental regulations. He noted that Ricardo Lorenzetti, Chief Justice of Argentina, has just published a book on The Theory of Environmental Law that argues that environmental law should be viewed as a transformative force. Chief Justice Lorenzetti states that “environmental law is a party to which all other branches of law are invited, but are told to wear new clothes.”

Following the conference I flew to Buenos Aires for the weekend. Due to heavy fog, my flight from Santiago was diverted from Ezezia International Airport to the Jorge Newbery commuter airport. While I initially thought this would get me to my hotel faster, it turned out that the small customs operation at the commuter airport was totally overwhelmed, creating a mob scene with hour-plus waits. While standing in the crowd, I heard a voice say, “Welcome to Argentina, Robert.” It was Professor Cafferatta. We had a nice conversation in Spanish where he complimented me on having mentioned Chief Justice Lorenzetti’s order to clean up the Riachuelo River in the paper published in the book released at the conference. On Sunday I visited the Riachuelo River to see for myself what progress had been made.

I was delighted to accept an invitation from Pace University to deliver their annual Lloyd K. Garrison Lecture on Environmental Law in April 2009. This lecture series has made some rich contributions to environmental law scholarship. I plan to present an updated and greatly expanded discussion of my theme about the emergence of global law and how it is transforming the environmental law field.

After meeting with a WHO official here in Buenos Aires tomorrow morning, I will fly back to the U.S. via Santiago and D.C. I will be in D.C. and Baltimore on Tuesday before returning to China on Wednesday.

Student Movies, A Party & Visit to NRDC-Beijing

On Monday we had the final Environmental Law class of the semester and my students showed the films they had made. There were five films in all and they were surprisingly good, particularly considering that the students had never once asked me for any help. I simply gave them two video cameras, some digital videotape and a laptop with digital video editing software. I was really impressed with what the students produced.

“Red Beijing” featured some nice acting by the students as they tried to demonstrate the impact of air and noise pollution in the city on their daily lives. “Loving Animals Is Loving Ourselves” included photos of animals being rescued from the Sichuan earthquake and it urged people to take care of abandoned and orphaned pets. “Disposable Chopsticks” attempted to demonstrate the environmental damage caused by their use by involving actors playing the police and hospital employees. The students who made “White Plastic Pollution” interviewed shoppers about their reactions to China’s new ban on the free distribution of plastic bags by grocery stores. “Banana’s Fault” urged people to be more careful about their disposal of garbage by following around a banana peel. The films demonstrated great creativity and effort on the part of the students. I plan to host an Environmental Law FIlm Festival next fall where “Golden Tree” awards will be presented in various categories to the student filmmakers, just as we do at Maryland.

Professor Wang Canfa joined our class for its last half hour and he brought along the Olympic torch he had carried in Guizhou the previous Friday. After class he gave a wonderful thank you to me, which was followed by individual students taking turns expressing their thanks. I was really moved. We all posed for photos with the Olympic Torch and Professor Wang then took me out to dinner at the Tenggeli-Tala Inner Mongolian Opera dinner theater restaurant. Professor Xu Kedzhu, Zhang Jingjing and my assistant Huang Jing also joined us.

On Tuesday I hosted a group of 21 students for drinks at my apartment followed by dinner at the South Beauty Restaurant in Oriental Plaza. While I was unsure whether my one-bedroom apartment could accommodate such a large group, it worked out fine. We played a DVD of the student movies in the living room and a slide show of photos from this semester in my study. Photos of the party and the students posing with the Olympic torch after the last class are available online at: http://gallery.mac.com/rperci/100272.

On Wednesday I visited the Beijing office of the Natural Resources Defense Council (NRDC) to give a lunch talk to their staff. The topic of my talk was “The History and Future of Global Environmental Law.” NRDC’s Beijing staff are expanding rapidly, due in part to a grant from the Google Foundation to work on green energy issues in China. They have just acquired additional office space that will more than double the size of their Beijing office.

After my final comparative environmental law class on Thursday I flew to D.C. en route to Chile to give a talk at the University of Chile’s annual environmental law conference. I stopped at home in in D.C. for the weekend and was able to attend the Washington Nationals/Texas Rangers games, accompanied by my nephew Andrew Percival who works for the Texas Rangers. On Friday night the game went into extra innings. After the top of the 14th with the game tied 3-3, the Nat Pack repeated their 7th inning t-shirt toss and I caught one of the t-shirts that were thrown into the stands from the top of the visitors’ dugout. I opened up the balled-up t-shirt I had caught and discovered that it said “Welcome Home.” I took that as a good omen and, sure enough, the Nats scored in the bottom of the 14th to win the game 4-3.

Holiday Class, Videoconference & Guangzhou

Last Monday the students in my Environmental Law class at the China University of Political Science and Law (CUPL) insisted on having class, even though it was the new national Dragon Boat Festival holiday in China. The students had arranged in advance to get the key to the projection equipment, but they were surprised to discover that it was not the only thing that was locked. The doors to the classroom where the course meets also were locked due to the holiday. After efforts to scour up a key failed, the enterprising students located an unlocked classroom and a spare projector which we used to display my slides on a bare wall after the students reversed all the desks in the room. It looked like every student in the class was there, an impressive testament to the high level of interest in environmental law among this very talented group.

On Thursday evening I was the guest speaker at a meeting of the China Roundtable held at the headquarters of Advanced Microdevices (AMD) in Austin, Texas. The China Roundtable is a group of environmental, health and safety officials from a dozen multinational corporations such as AMD, Intel, Procter & Gamble, and Levi Strauss. I appeared by videoconference from AMD’s Beijing office in the science park just south of Tsinghua University. My topic was the growth of environmental NGOs in China. Given the time difference, we started the conference at 9:30PM Beijing time, which was 8:30AM in Austin. Alex Wang, director of the Beijing office of the Natural Resources Defense Council (NRDC), agreed to come with me to share his insights on how NGOs like NRDC operate in China. Susan Keane, an NRDC scientist who is working on a project to help NGOs ensure that their Chinese supply chains are green, also participated by phone from Washington, D.C.

I gave a brief history of the development of environmental NGOs in China and discussed the problems they face: they can be shut down by the Chinese government at any time (as happened to the China Development Brief last year), they have a hard time establishing reliable sources of financing given the lack of tax incentives in China for making contributions to NGOs, and they can have a difficult time publicizing problems given government censorship of the Chinese media. I also discussed whether the Sichuan earthquake has changed Chinese attitudes toward the foreign media and charitable contributions to NGOs. The videoconference was hosted by my former student Steve Groseclose (head of global environmental health and safety for AMD). Despite some initial technical glitches, it seemed to go very well. I am really grateful to Steve for inviting me and to Alex and Susan for agreeing to participate in the program.

On Friday morning I flew from Beijing to Guangzhou to participate in a Workshop on Environmental Law Teaching and Research Capacity Building. The workshop was the South China equivalent of the roundtable I participated in last Sunday in Beijing. It brought together 41 environmental law faculty from 24 schools. The workshop was sponsored by Sun Yat-sen University School of Law and Vermont Law School (VLS), funded by VLS’s AID grant. Sun Yat-sen Professor Li Zhiping and VLS Professor Tseming Yang organized the conference. I gave an opening presentation on the teaching of environmental law, focusing primarily on the experience of the U.S. supplemented by my experiences this semester at CUPL. Shanghai Jiao Tong law professor Wan Xi, who has authored the materials most environmental law professors in South China seem to use, spoke about the need for better supervision by the National People’s Congress and the judiciary to remedy government failures in the environmental area.

Li Ziphing, who has 20 years experience teaching environmental law, discussed her teaching methods, as did VLS Professor Mark Latham, who discussed his course on Environmental Issues in Business Transactions. Professor Du Wanping of Jinan University discussed her use of “social investigations” by teams of students to expose violations of laws to protect sources of drinking water. (Professor Du will be visiting at the University of Kansas School of Law during the next academic year). Ben Boer, director of the IUCN Academy of Environmental Law with a joint appointment from the University of Sydney and the University of Ottawa, discussed the difficulties Chinese universities face in responding to the Ministry of Education’s edict that all schools must offer a course in environmental law. The Academy is developing a training course to help prepare more professors to teach environmental law. Professor Wang Zican from the South China University of Technology discussed typical Chinese environmental law syllabi and why some Chinese law professors do not fully appreciate the importance of the subject as a legal discipline. He mapped out a strategy for “the comeback of Environmental Law as part of ‘legal science’.” Marc Mihaly, director of VLS’s Environmental Law Center, discussed Vermont’s extensive environmental law curriculum.

The Q & A sessions featured a discussion of China’s response to the climate crisis. I mentioned the new statistics showing that China has eclipsed the U.S. as the largest source of greenhouse gas (GHG) emissions, accounting for three-quarters of the global increase last year. Professor Du Wanping argued that the U.S. bears responsibility for Chinese emissions because U.S. consumers purchase the products whose manufacture generates the emissions. While I agreed that the Bush administration’s response to the problem has been indefensible, I noted that U.S. policy definitely would change as soon as a new president is inaugurated next January. I questioned whether it was good strategy for China to blame the U.S. for its emissions when the U.S. has no way to directly control them other than refusing to buy Chinese products or imposing a stiff environmental tariff. We all appeared to agree that it is a global problem that requires a global solution.

On Sunday morning VLS Professor Carl Yirka gave a great presentation on researching global environmental law. Tseming Yang closed the workshop by expressing his hope that it will be the start of a continuing dialogue and greater collaborative initiatives among environmental law professors in South China and the rest of the world. Ben Boer reports that 15 Chinese law schools have now joined the IUCN Academy of Environmental Law, which gives them greater representation in the Academy than the North American law schools.

Tomorrow my Environmental Law students will be premiering the films they have made for the class. I am really excited about getting to see them.