Duke & Maryland Conferences, EU Regulations on Aircraft Emissions of Greenhouse Gases

On Friday October 24 I spoke at a conference at Duke Law School on “The Future Environmental Agenda: Environmental Law and Policy Challenges Facing the Next President.” The conference was the 2008 Symposium of Duke’s Environmental Law & Policy Forum. It featured a terrific collection of speakers who addressed the environmental agenda at the international level and with respect to natural resources law and pollution control. I was on the pollution control panel along with former EPA general counsel Don Elliott, Environmental Defense Fund assistant general counsel Vickie Patton and Professor Noah Sachs from the University of Richmond. There was a lively debate over whether cap and trade or carbon tax approaches were the best policy for responding to global warming and climate change.

I made a presentation on “Presidential Transitions and the Environment.” Reviewing transitions the Carter administration to the present, I noted that while it once was considered presumptious for a presidential candidate to start transition planning prior to the election, it now has become essential to do so. I argued that the notion of a “honeymoon” for a new administration was largely a myth since there have been so many instances where opponents try to test a new administration, often derailing important administration initiatives. More information about the symposium can be obtained at: http://www.law.duke.edu/journals/delpf/symposium.

Unfortunately the Duke conference coincided with a terrific Maryland conference on the 60th anniversary of the Universal Declaration on Human Rights. The conference featured presentations by Mary Robinson, former President of Ireland and former UN High Commissioner on Human Rights, former South African Chief Justice Arthur Chaskalson, and South African Constitutional Court Justice Bess Nkabinde. Because I was at Duke I missed the conference, but I was able to attend a talk by Mary Robinson today. After her presentation I asked her what the new U.S. President could do to restore its tarnished human rights reputation. She recommended that the new President immediately announce a policy of “no torture and no renditions,” close Guantanamo, and reengage with the UN Commission on Human Rights.

On Friday, October 24, the European Union (EU) approved a cap of greenhouse gas (GHG) emissions from airlines flying into or out of the EU. Citing the global economic turmoil, the director general of the International Air Transport Association denounced the new regulations, which he claimed would cost airlines $4.4 billion. The regulations take effect on January 1, 2012. Mindful of the potential economic impact of the regulations, the regulations allow start-up airlines and airlines growing faster than 18% a year to qualify for the issuance of a limited supply of additional fre permits.

Will the Global FInancial Crisis Undermine Efforts to Control Greenhouse Gas Emissions?

As the global economic crisis continues to cause turmoil, concern is growing that it will force governments to shelve efforts to adopt new controls on emissions of greenhouse gases (GHGs) to respond to global warming and climate change. Last week Canadian voters returned the Conservative government to power in an election viewed in part as a rejection of the Liberal Party’s plan for a nationwide carbon tax. At the same time, resistance is growing to the plan the European Union (EU) adopted last year to reduce emissions of GHGs by 20% below 1990 levels by the year 2020.

At a meeting of EU heads of state in Brussels on October 15 & 16, several leaders questioned whether the 20/20 goal could be achieved in light of the current financial crisis. Italian Prime Minister Silvio Berlusconi led the resistance with support from the leaders of Bulgaria, Latvia, and Poland, a country heavily dependent on coal. President Nicolas Sarkozy of France, who chaired the summit meeting, argued that it was crucial to maintain a consensus in favor of the 20/20 plan in order not to undermine negotiations with a new U.S. president on a global regime for controlling GHG emissions. Leaders of poorer Eastern European countries argued that some concessions should be made to accommodate them because it would be more difficult for them to meet the 20/20 goals given their greater dependence on fossil fuels. The leaders agreed to allow any of the 27 EU member countries to veto the final plan and they declined to set a December 2008 deadline for finalizing it. Stephen Castle, European Nations, Fearing Downturn, Seek to Revise Agreement on Emissions Cuts, New York Times, October 17, 2008, p. A6.

To be sure, there were other reasons for the Liberal Party’s defeat in the Canadian elections rather than simply voter opposition to a nationwide carbon tax. One report noted that Liberal Party leader Stéphan Dion’s less than stellar command of English could have been a factor. To make the carbon tax more appealing the Liberals had promised offsetting reductions in income taxes.

Every time the economy slows, arguments for relaxing environmental regulations seem more appealing to some, as illustrated by President George H.W. Bush’s actions during the 1992 presidential campaign. After having fought for the far-reaching 1990 Clean Air Act Amendments he imposed a regulatory moratorium that made it difficult to implement them and blamed the spotted owl for some of the economic troubles. No one enjoys an economic downturn and the current global financial crisis has been truly frightening at times because it appears to be of a magnitude not seen since the Great Depression. But one also should remember that a slowdown in economic activity reduces emissions, including emissions of greenhouse gases, that will make it much easier to achieve any reduction goal, which is why Russia’s Kyoto commitment to reduce emissions over 1990 levels has been so easy to achieve. Stay tuned to see how these arguments play out when COP-14 is held in Poznan, Poland from December 1-12.

World Conservation Congress in Barcelona

On Sunday October 12 I returned from a week at the World Conservation Congress in Barcelona. The Congress, which is held every four years, attracted 8,000 environmental leaders from governments, NGOs, academia, and businesses in 177 countries. It opened on October 5 with an impressive opening ceremony featuring the theme “What Kind of World Do We Want to See?”

The first four days of the Congress were devoted to a Forum that featured hundreds of programs, exhibits, and poster sessions addressing a dizzying array of environmental issues. For example, on Tuesday I attended a session on the impact of climate change on the Arctic region. Moderated by Fran Beinecke, president of the Natural Resources Defense Council, it featured Jim Leape, co-author of my Environmental Regulation casebook and now director-general of the World Wildlife Fund, His Royal Highness Prince Albert of Monaco, whose foundation has been supporting environmental initiatives, and scientist Jane Lubchenko from Oregon State University. Prince Albert showed a video of his trip to the North Pole that featured him lurching about with a GPS to locate the exact point where it would register 90 degrees north latitude where he planted the flag of Monaco. After the session I had my first opportunity to speak to Jim Leape since he moved to Switzerland to assume leadership of WWF in 2005.

While IUCN has become so large as to be almost unwieldy, one of the great features of the Congress is the diversity of its participants with scientists, lawyers, business people, activists and academics from every corner of the globe rubbing shoulders. This made for some lively exchanges at some of the sessions. At the Congress I finally got a chance to meet Ma Jun, director of the Institute of Public and Environmental Affairs in Beijing. He is probably the only prominent environmental professional in China that I did not manage to meet during my time teaching there in the spring. His Institute has prepared a database of polluting companies in China that is available online at http://en.ipe.org.cn/ It has received wide publicity in China as a tool for citizens to put pressure on companies to reduce their pollution. He discussed his use of the database in a video interview that is online at the IUCN website http://www.iucn.org/news_events/events/congress/live/news/index.cfm?uNewsID=1850.

The Congress also featured a Conservation Cinema that continuously showed environmental films from around the world. It was inspiring to see how many NGOs are now making videos and films, many of them highly sophisticated, to communicate environmental issues to the public. I am hoping that some of the films my students have been making may be shown at a future Congress. While I was at the Congress I had a group of former students who had made environmental films in my class speak to my current class and show them the films they had made. I introduced the speakers by videoconference from my hotel room in Barcelona. On Wednesday October 8, I used videoconferencing to introduce Neal Kemkar, a former student of mine who gave a guest lecture to my class on Winter v. NRDC, an environmental case argued that morning in the Supreme Court. Neal just finished a clerkship with Judge Betty Fletcher of the Ninth Circuit, the author of the Winter decision upholding an injunction restricting the Navy’s use of sonar because of its potential to harm marine mammals.

On Thursday evening, Sheila Abed, chair of the Commission on Environmental Law, sponsored a cocktail party for commission members at a hotel across from the Convention Center. This enabled me to catch up with many other environmental law professors from around the world, including many who I will see next month in Mexico City at the IUCN Academy of Environmental Law’s annual colloquium.

World Conservation Congress, Lisbon & Vermont

Today I arrived in Barcelona for the opening of the World Conservation Congress. The Congress, sponsored by the International Union for the Conservation of Nature (IUCN) is held every four years. Four years ago in 2004 I attended the Congress in Bangkok and in 2000 I participated in it when it was held in Amman, Jordan, with Queen Noor as the host. IUCN is an unusual conglomerate of governments, NGOs and others interested in global environmental protection.

Yesterday I visited Lisbon, Portugal for the first time. I was very impressed with the city which is a great combination of old and new. It is very pedestrian-friendly with cars stopping for people in crosswalks, something I never experienced in Beijing. I had a fabulous lunch at Eleven, Lisbon’s only restaurant with a Michelin star, which is located in a park with a spectacular view of Lisbon.

A week ago Friday I visited Vermont Law School (VLS) to give a lecture on “The War of the Worldviews: Precaution v. Reaction on the U.S. Supreme Court.” The lecture expanded on some themes I outlined in my article in the latest edition of the Supreme Court Review - that the Court is narrowly split between two fundamentally different approaches to government regulation that repeatedly resurface in cases involving standing, statutory interpretation, and deference to the decisions of administrative agencies. I had a great time at Vermont where I have a lot of terrific friends, including Tseming Yang, co-author of my forthcoming casebook on Global Environmental Law, and Jason Czarnezki, who just joined the VLS faculty from Marquette.

In the last two weeks there has been considerable news in the global environmental law area. Last Monday I was interviewed by Greenwire about voter approval of the new Ecuadoran constitution that contains the most far-reaching environmental provisions of any constitution. It recognizes the rights of nature in a distinctly eco-centric way not seen in other constitutions and it requires the government as a constitutional obligation to remediate environmental contamination. Of course, its impact will depend on how it is implemented by legislation and judicial interpretation. Given that this is Ecuador’s 20th constitution in a country that has seen so many changes of government in recent years, it remains to be seen whether the political stability that is necessary for law to thrive and be respected will be forthcoming.

The European Union seems to be holding firm with its desire to adopt stringent new limits on greenhouse gas emissions by automobiles. However, several European car companies and a few governments are lobbying hard to weaken the standards.

Tata Motors has announced that it will shift manufacture of the Tata Nano, the world’s cheapest car, to a new plant outside of West Bengal where protests continue against the existing plant (see Sept. 8th post reporting on a settlement agreement that now appears not to have been successful).

While the U.S. financial crisis reflects the fruits of overly aggressive deregulation at the behest of the financial industry, as my colleague Rena Steinzor has pointed out in an op-ed in the Baltimore Sun (“Reviving Regulation, Baltimore Sun, Sept. 28, 2008), one probably can expect to start hearing the financial crisis being raised as an asserted justification for loosening (or at least not improving) environmental standards. That already seems to be happening here in Europe as part of the automakers’ opposition to strengthening controls on emissions of greenhouse gases.

China Panel at ABA SEER Conference

On Friday morning September 19, I participated in a panel on “China and the Environment -- A Conservation with Experts on Environmental Protection, Development of Natural Resources, Energy Use, and Health and Safety in China” at the fall conference of the ABA’s Section of Environment, Energy & Resources (SEER). The conference was held at the Biltmore Resort in Phoenix, Arizona. The panel was moderated by Margret J. Kim, senior advisor on International Climate Change and China Program Director for the California Air Resources Board. EPA attorney Steve Wolfson discussed the prospects for China controlling its emissions of greenhouse gases, noting that the Chinese government has been quietly shutting down many old, inefficient coal-fired power plants. Former EPA general counsel Roger Martella discussed the huge market for clean energy technologies in China and the rapid growth of wind power in China. I discussed the prospects for democratization in China and the need for greater centralization of authority to enforce Chinese environmental laws.

I was particularly struck last week by reports that the Chinese central government did not learn of the scandal involving Chinese infant formula contaminated with melamine until it was informed by the government of New Zealand. The contaminated formula has caused the deaths of some infants and sickened hundreds of others in China. It was produced by the Sanlu Group, a Chinese company whose New Zealand business partner was appalled when it was informed of the problem but told that there would be no public announcement of it. The New Zealand company then informed its government, who notified Chinese authorities. As other countries now restrict imports of Chinese dairy products, it seems likely that the Chinese central government will have to do much more to ensure the public in both China and export markets of the safety of Chinese products.

This week’s incredible gyrations in U.S. financial markets, including the sudden bankruptcy of Lehman Brothers, the sale of Merrill Lynch, the U.S. government bailout of AIG, and massive federal intervention to shore up financial markets, may signal a substantial shift in the relationship between government and business. Globalization and deregulation have made markets so interconnected that bad business decisions can have ripple effects that have much broader consequences than previously. The collapse of the Russian stock market earlier in the week was viewed by some as the global marketplace’s response to Russia’s invasion of Georgia and Russia’s reckless treatment of foreign investment partners. By the end of the week both the U.S. and Russian governments intervened to shore up their markets, at least temporarily, but the long-term effects of the bursting of the housing bubble in the U.S. are likely to persist for a long time to come.

After I flew into Phoenix on Thursday night I met five of my former students for drinks. Two of the Maryland alums - Brad and Karlene Martorama -- now work for law firms in Phoenix. The three others were in Phoenix for the SEER conference. They included Andrea Curatola, who is an attorney at the Nuclear Regulatory Commission (NRC); Sriram Gopal, an attorney for EPA; and Rich Kuhn, who works for a law firm in Washington, D.C. Andrea’s expertise proved useful when a question arose at the SEER panel on regulation of nuclear power in China.

On the way back to Washington from Phoenix I stopped in Denver and saw a baseball game in Coors Field for the first time. On Saturday I stopped in Dallas and caught a game at the Ballpark in Arlington with my nephew who works there for the Texas Rangers.

Tata Nano Plant Protest in India, Bisphenol-A in U.S. (by Bob Percival)

On January 13, 2008, this blog reported the announcement that Tata Motors of India had developed an automobile that would sell for one lakh (100,000 rupees, or approximately $2,300). This week construction of a $350 million production plant for the Nano in the state of West Bengal was briefly halted by vehement protests from farmers and local political leaders complaining about forcible seizures of land for the plant. During the course of the protests, Tata Motors threatened to move the location of the production plant to another part of India. The state governor of West Bengal, Gopal Krishna Gandhi, brokered a meeting between officials of the Communist Party of India, which supports the plant, and representatives of the opposition Trinamool Congress party, which opposes it. The Associated Press reports that today it was announced that the protests will be called off after the state government agreed to provide greater compensation to those who lost their land. The opposition is declaring the compensation agreement to be “a big win for us.”

Protests over seizures of land for economic development also are becoming increasingly common in China. When I discussed the U.S. Supreme Court’s decision in Kelo v. City of New London in my Environmental Law class in Beijing, my Chinese students were highly critical of the decision because it upheld the U.S. government’s right to seize land for purposes of economic development. A major reason for their opposition is that this practice is quite common in China, but the compensation provided by the Chinese government when land is seized is viewed as grossly inadequate. Yet few protests in China succeed because the government does not have well developed protections for property rights. This is one reason why China has been able to develop large infrastructure projects more quickly than India. While it is too soon to tell, the settlement of the Tata protests may signal that when the stakes are high enough, Indian political leaders can afford to grease the wheels of development.

Controversy continues in the United States over the safety of a chemical - bisphenol-A - that is widely used to harden plastics. In April of this year Canadian health authorities concluded that the chemical may pose some risks to infants because of test data associating it with toxic effects in animals. The data had been obtained through targeted testing pursuant to the government’s new chemical control law that is similar to the European Union’s REACH program. These programs require extensive testing before new chemicals can be marketed and they establish tiered testing procedures to assess the safety of chemicals already on the market.

In April 2008 the Canadian Health Minister announced plans to ban the sale of products containing bisphenol-A in baby bottles. At the same time retailers such as Walmart agreed not to sell food containers, bottles and pacifiers containing the chemical and Nalgene, a manufacturer of water bottles, agreed to discontinue use of the chemical. The American Chemistry Council, a chemical industry trade association, continues to insist that the chemical can be safely used in such products. Their position recently received support from the U.S. Food and Drug Administration, which reported that human exposures from use in consumers products were too low to be dangerous. However, this week researchers at Yale released a study linking the chemical to neurological problems and mood disorders in monkeys. Lyndsey Layton, Chemical in Plastic Is Connected to Health Problems in Monkeys, New York Times, Sept. 4, 2008, p. A2. The responses of the Canadian and U.S. governments to the test data seem to reflect a more precautionary approach in Canada than in the United States.

Visiting Uganda Scholar, ANWR & China Car Tax

This week Professor Emmanuel Kasimbazi from the Faculty of Law at Makerere University in Kampala, Uganda, arrived at Maryland to begin his time as a visiting scholar. Professor Kasimbazi is an expert on environmental law. He received his LL.M. in Environmental Law from the University of Calgary in 1995. He currently is the President of the East African Association for Environmental Impact Assessment and the Vice President of the Association for Environmental Law Lecturers in African Universities. Prof. Kasimbazi has extensive experience in energy law, water law and forestry law. He has been a consultant to the World Bank, the African Development Bank, the United Nations Environment Programme, and the European Union.

I first met Prof. Kasimbazi in 1999 when I presented an Environmental Law Workshop in Uganda for the American Bar Association’s African Law Initiative. I was very impressed with him then and I subsequently have encountered him at meetings of members of the IUCN Commission on Environmental Law. Prof. Kasimbazi’s visit is funded by a J. William Fulbright scholarship. He will be in residence at the law school through the end of January 2009. I am sure that Prof. Kasimbazi will be a big help to me in putting together the casebook on Global Environmental Law that I am co-authoring with Prof. Tseming Yang.

I am currently working on the sixth edition of the environmental law casebook that I co-author with Chris Schroeder, Alan Miller and Jim Leape. Chapter One of the book raises the question of whether the Arctic National WIldlife Refuge (ANWR) should be opened to oil drilling. That part of the chapter appeared in the first edition in 1992 when we had no idea how durable the controversy would be. We have been contemplating replacing it in the sixth edition with material on climate change, particularly since both presidential candidates now oppose oil drilling in ANWR. However, it now appears clear that the controversy simply will not die.

Last week the Republican Party adopted a platform that urges more oil drilling in Alaska, but that for the first time in many years does not specifically mention drilling in ANWR. However, the debate in the platform committee made it clear that this is not a reflection of any real change in the party’s policy in ANWR, but only a matter of trying not to directly contradict the position of the party’s presidential candidate. On Wednesday an Alaska delegate to the platform committee made a motion to amend the draft platform to specifically endorse oil drilling in ANWR. An opponent of the amendment from Oregon stated: “We all support, I think, drilling in ANWR, and we know that President McCain will eventually come around to our position. But he’s not there yet. And so I would say prudence would dictate that we leave the text as it is until our candidate catches up with us a little bit.” See http://www.npr.org/templates/story.php?storyid=94057387. The proposed amendment narrowly failed.

With Senator McCain’s announcement on Friday that his running mate will be Gov. Sarah Palin of Alaska, the pressure on him to reverse his position and support drilling in ANWR may increase. Gov. Palin, like virtually all Alaskan politicians, strongly supports opening up ANWR to oil drilling. She previously has expressed hope that she can convince Senator McCain to change his position and to support drilling in ANWR. On Friday Gov. Palin and the state of Alaska sued the Secretary of Interior to challenge his listing of the polar bear as a threatened species under the Endangered Species Act.

On Monday, September 1 a new tax on gas-guzzling cars will go into effect in China. Automobiles with engines larger than 4.1 liters will be subject to a 40% sales tax, double the previous amount. Cars with engines between 3 and 4.1 liters will be subject to a 25% tax, an increase from 15%. The tax on cars with engines smaller than 1 litter will be reduced from 3 percent to 1 percent. The Chinese government hopes that these tax changes will encourage Chinese consumers to buy more fuel efficient cars. Skeptics argue that there also may be a protectionist motivation since virtually all the large cars sold in China are imported from abroad. The Economist notes that the tax may be a “canny” response to a July WTO ruling striking down China’s 25% tariff on imported car parts. “Taking Another Road,” The Economist, Aug. 23, 2008, p. 54.