Last week Secretary of State Hillary Clinton visited India, a trip marked by blunt exchanges highlighting India’s refusal to accept binding limits on its emissions of greenhouse gases (GHGs). India maintains that because its GHG emissions are among the lowest in the world on a per capita basis, it would be unfair to require it to limit its emissions, which have been growing rapidly. Secretary Clinton emphasized that the U.S. would never try to limit India’s economic growth, but that a new global regime of GHG controls must include the developing world. India’s Environment Minister Jairam Ramesh argued that developed countries caused most of the climate change problem and he expressed strenuous opposition to talk of imposing carbon tariffs on countries that do not control their emissions. Some observers believe the government of Indian is taking a tough negotiating position in advance of December’s Copenhagen conference to gain greater financial assistance for reducing carbon emissions. Others believe that there is little prospect of getting India to agree to binding targets in Copenhagen.
On Wednesday, the U.S. Department of Agriculture released a study of the impact on farmers of the House-passed climate legislation. It found that the legislation would reduce net farm income by less than 1% prior to 2018, by 3.5% between 2027 and 2033, and by 7.2% between 2042 and 2048. However, the report argued that the increased cost of farm operations from the legislation would likely be more than offset by opportunities for farmers and ranchers to receive payments for carbon offsets. The report, “A Preliminary Analysis of the Effects of HR 2454 on U.S. Agriculture,” is available at http://www.usda.gov/oce/newsroom/archives/releases/2009files/HR2454.pdf.
Last week officials from Chevron Corporation conceded that the company is likely to have an enormous judgment rendered against it by a court in Ecuador in a lawsuit involving pollution from oil drilling in the Oriente region of that country. The company vowed that it will not pay such a judgment and will fight it in the courts of both Ecuador and the U.S. for decades if necessary. While some shareholders have urged the company to settle, Chevron spokesperson Don Campbell told the Wall Street Journal that “We’re not going to be bullied into a settlement” because the company has done nothing wrong. Ben Casselman, Chevron Expects to Fight Ecuador Lawsuit in U.S., Wall St. Journal, July 20, 2009, at B3.
While complicity in human rights abuses is sometimes alleged in lawsuits against corporations, last week the Intel Corporation sought to embrace human rights arguments when it appealed a billion-euro fine levied against it for antitrust violations in the European Union. The company argued that because the fine was levied by the European Commission’s antitrust regulator, rather than a court, it was the product of a process so fundamentally unfair as to constitute a violation of the corporation’s human rights.
Last week the Pew Global Attitudes Project published the results of its latest survey of attitudes toward the United States by citizens of 25 other countries. The survey showed a sharp rise in favorable attitudes toward the United States among foreigners, which it attributed largely to the election of President Barack Obama. The increase in favorable attitudes toward the U.S. was most pronounced in Europe. The survey results are available online at: http://pewglobal.org/reports/pdf/264.pdf
Last Wednesday I hosted Alan Miller, the Global Environmental Facility and Climate Change Coordinator for the International FInance Corporation, to watch the Washington Nationals beat the New York Mets at Nationals Park in D.C. Alan is a co-author of my Environmental Regulation casebook. He has been attending all the pre-Copenhagen conferences. On SUnday I went to Nationals Park with Dan Guttman, who spends most of the year teaching in China, but who is back in the U.S. for the summer to teach two courses for Johns Hopkins University’s graduate programs. We saw another rare Nats victory, this time over the San Diego Padres in 10 innings. Dan told me that this week’s solar eclipse was a great disappointment in Shanghai because it was too overcast to see the sun on Wednesday, the day of the eclipse.
Sunday, July 26, 2009
Sunday, July 19, 2009
Environmental Law at the Sotomayor Confirmation Hearings
This week the U.S. Senate Judiciary Committee held four days of hearing on the nomination of Judge Sonya Sotomayor to the U.S. Supreme Court. During the hearings, several Senators raised issues of environmental law, as they did during the 2005 confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito.
On Tuesday Senator Diane Feinstein tried to get Judge Sotomayor to react to the Court’s efforts since 1995 to restrict the scope of federal power under the commerce clause. This is the issue that produced the “hapless toad” controversy when Roberts was questioned at his hearing concerning his effort to persuade colleagues on the D.C. Circuit to rehear a decision upholding the constitutionality of the Endangered Species Act (ESA). Roberts explained that he had never questioned the constitutionality of the ESA but sought only to ensure that the D.C. Circuit’s rationale was consistent with that adopted by a divided panel of the Fifth Circuit when it upheld the ESA in another case.
Judge Sotomayor responded only by describing her familiarity with the existing state of the law. She identified the factors the Court considers in applying its commerce clause doctrine and noted that these may have been broadened somewhat by the Court’s Gonzales v. Raich decision upholding the power of the federal government to prohibit the growing of marijuana. Judge Feinstein responded by emphasizing the importance of Congress being able to use its commerce power to adopt environmental legislation such as the ESA, the Clean Air Act, the Clean Water Act, and a new cap-and-trade program. While Judge Sotomayor said that pending litigation raising challenges to these statutes made it impossible for her to comment directly, she said that the Court “has never disavowed the importance of deference to legislative findings with respect to legislation that it’s passing within its powers under the Constitution.”
Senator Charles Grassley from my home state of Iowa asked the most direct questions about environmental cases. He pressed Judge Sotomayor to explain why no decision has been issued in the Connecticut v. EPA climate change nuisance case which was argued before the judge in June 2006. In this case several states are seeking to require utilities with coal-fired powerplants to reduce their emissions of greenhouse gases (GHGs) because of their contribution to global warming and climate change. The case was appealed to Judge Sotomayor’s court after it was dismissed in 2005 by a district court as a nonjusticiable political question. While noting that she could not comment on cases pending before her, Judge Sotomayor did say that some of the delay was due to the 2nd Circuit panel waiting for the U.S. Supreme Court to decide Massachusetts v. EPA, a suit challenging EPA’s failure to regulate GHG emission. Yet that case was decided in April 2007 and more than two years have elapsed since the parties in the 2nd Circuit appeal filed supplemental briefs addressing its impact. If Judge Sotomayor is confirmed before that case is decided, it is likely that it will have to be reargued, causing even further delay.
On Day 3 Senator Ben Cardin of Maryland criticized the Supreme Court’s SWANCC and Rapanos decisions narrowly interpreting the scope of federal authority provided by Congress under the Clean Water Act. He noted that more than 500 prosecutions of alleged polluters had to be dropped because of these decisions and that Congress may have to amend the Act to reverse them. Judge Sotomayor responded by saying that she and the Court recognize that deference is owed to the Congress in setting policy and making law.
Senator Grassley pressed Judge Sotomayor on the importance of property rights. He criticized the Supreme Court’s Kelo decision holding that eminent domain can constitutionally be used to take private property for economic development projects run by private parties. The judge responded, “I share your view of the importance of property rights under the Constitution” and restated the holding in Kelo. When further pressed by the senator, she said that she was unable to comment in more detail. However, Judge Sotomayor then observed that “the question of what constitutes an actual taking is a very complex one, because there’s a difference between taking a home, and regulation that may or may not constitute a taking.”
Senator Grassley also noted that Judge Sotomayor’s decision in the Entergy Corp. v. Riverkeeper case was reversed by the Supreme Court earlier this year. In that case Judge Sotomayor had ruled that a provision of the Clean Water Act did not allow EPA to use cost-benefit balancing in setting technology-based effluent limits on cooling water intake structures at power plants. Judge Sotomayor responded that she had applied general principles of statutory construction in interpreting the statute.
The hearings shed virtually no light on Judge Sotomayor’s views concerning issues of environmental, or other areas of law. This has been the pattern with confirmation hearings ever since Robert Bork’s. Yet the Senators on both sides of the aisle used the process to signal the Court concerning what they liked and disliked about its current jurisprudence. While this is unlikely to have any impact on the Justices, I would be surprised if the other Justices were not listening closely. Justice White once told his former clerks at a reunion that he had turned off the Clarence Thomas hearings after the Anita Hill controversy broke because he did not want it to influence how he would treat the Justice if he were confirmed.
On Friday I had lunch with Steven Stec, the director of the Environmental Security Program at the Center for Environment and Security (CENSE) at Central European University in Budapest. Steve is a Maryland law alum who teaches environmental law and policy in the Environmental Sciences and Policy Department at Central European University. He is in the U.S. for a few months, prior to serving as a visiting scholar and lecturer in the fall at Middlebury College.
On Tuesday Senator Diane Feinstein tried to get Judge Sotomayor to react to the Court’s efforts since 1995 to restrict the scope of federal power under the commerce clause. This is the issue that produced the “hapless toad” controversy when Roberts was questioned at his hearing concerning his effort to persuade colleagues on the D.C. Circuit to rehear a decision upholding the constitutionality of the Endangered Species Act (ESA). Roberts explained that he had never questioned the constitutionality of the ESA but sought only to ensure that the D.C. Circuit’s rationale was consistent with that adopted by a divided panel of the Fifth Circuit when it upheld the ESA in another case.
Judge Sotomayor responded only by describing her familiarity with the existing state of the law. She identified the factors the Court considers in applying its commerce clause doctrine and noted that these may have been broadened somewhat by the Court’s Gonzales v. Raich decision upholding the power of the federal government to prohibit the growing of marijuana. Judge Feinstein responded by emphasizing the importance of Congress being able to use its commerce power to adopt environmental legislation such as the ESA, the Clean Air Act, the Clean Water Act, and a new cap-and-trade program. While Judge Sotomayor said that pending litigation raising challenges to these statutes made it impossible for her to comment directly, she said that the Court “has never disavowed the importance of deference to legislative findings with respect to legislation that it’s passing within its powers under the Constitution.”
Senator Charles Grassley from my home state of Iowa asked the most direct questions about environmental cases. He pressed Judge Sotomayor to explain why no decision has been issued in the Connecticut v. EPA climate change nuisance case which was argued before the judge in June 2006. In this case several states are seeking to require utilities with coal-fired powerplants to reduce their emissions of greenhouse gases (GHGs) because of their contribution to global warming and climate change. The case was appealed to Judge Sotomayor’s court after it was dismissed in 2005 by a district court as a nonjusticiable political question. While noting that she could not comment on cases pending before her, Judge Sotomayor did say that some of the delay was due to the 2nd Circuit panel waiting for the U.S. Supreme Court to decide Massachusetts v. EPA, a suit challenging EPA’s failure to regulate GHG emission. Yet that case was decided in April 2007 and more than two years have elapsed since the parties in the 2nd Circuit appeal filed supplemental briefs addressing its impact. If Judge Sotomayor is confirmed before that case is decided, it is likely that it will have to be reargued, causing even further delay.
On Day 3 Senator Ben Cardin of Maryland criticized the Supreme Court’s SWANCC and Rapanos decisions narrowly interpreting the scope of federal authority provided by Congress under the Clean Water Act. He noted that more than 500 prosecutions of alleged polluters had to be dropped because of these decisions and that Congress may have to amend the Act to reverse them. Judge Sotomayor responded by saying that she and the Court recognize that deference is owed to the Congress in setting policy and making law.
Senator Grassley pressed Judge Sotomayor on the importance of property rights. He criticized the Supreme Court’s Kelo decision holding that eminent domain can constitutionally be used to take private property for economic development projects run by private parties. The judge responded, “I share your view of the importance of property rights under the Constitution” and restated the holding in Kelo. When further pressed by the senator, she said that she was unable to comment in more detail. However, Judge Sotomayor then observed that “the question of what constitutes an actual taking is a very complex one, because there’s a difference between taking a home, and regulation that may or may not constitute a taking.”
Senator Grassley also noted that Judge Sotomayor’s decision in the Entergy Corp. v. Riverkeeper case was reversed by the Supreme Court earlier this year. In that case Judge Sotomayor had ruled that a provision of the Clean Water Act did not allow EPA to use cost-benefit balancing in setting technology-based effluent limits on cooling water intake structures at power plants. Judge Sotomayor responded that she had applied general principles of statutory construction in interpreting the statute.
The hearings shed virtually no light on Judge Sotomayor’s views concerning issues of environmental, or other areas of law. This has been the pattern with confirmation hearings ever since Robert Bork’s. Yet the Senators on both sides of the aisle used the process to signal the Court concerning what they liked and disliked about its current jurisprudence. While this is unlikely to have any impact on the Justices, I would be surprised if the other Justices were not listening closely. Justice White once told his former clerks at a reunion that he had turned off the Clarence Thomas hearings after the Anita Hill controversy broke because he did not want it to influence how he would treat the Justice if he were confirmed.
On Friday I had lunch with Steven Stec, the director of the Environmental Security Program at the Center for Environment and Security (CENSE) at Central European University in Budapest. Steve is a Maryland law alum who teaches environmental law and policy in the Environmental Sciences and Policy Department at Central European University. He is in the U.S. for a few months, prior to serving as a visiting scholar and lecturer in the fall at Middlebury College.
Sunday, July 12, 2009
G-8 Summit, Senate Delay, Pakistan Gas Tax, Street Law & Casebook
At the G-8 Summit in Italy this week, the leaders of the world’s major economies endorsed the goal of keeping global warming from exceeding 2 degrees centigrade (3.6 degrees Fahrenheit), in line with recommendations by scientists on the Intergovernmental Panel on Climate Change. The leaders did not agree, however, on specific measures to limit greenhouse gas (GHG) emissions to achieve this goal, which led the Wall Street Journal editors to liken them to King Canute commanding the tides to roll out. Unfortunately, Hu Jintao’s abrupt return to China to deal with deadly ethnic violence between Han Chinese and Uighurs in Xinjiang Province helped scuttle any chance for a breakthrough in getting leaders of developing countries to agree to control their GHG emissions. This now appears to be the key stumbling block to global agreement in Copenhagen in December on a post-Kyoto regime to control GHG emissions.
Last month’s approval of climate change legislation by the U.S. House of Representatives put President Obama in a stronger position at the G-8 summit to push for aggressive global action to combat climate change. At the same time, however, the Senate Environment & Public Works Committee chaired by Sen. Barbara Boxer announced that it would postpone a vote on climate legislation until late September. Previously it had been hoped that the committee would report out the Senate’s version of the legislation approved by the House by the end of July. The delay is supposed to give the committee more time to craft improved legislation and to persuade wavering senators.
Last week Pakistan’s Oil & Gas Regulatory Authority increased the price of gasoline in the country by nearly 23% in response to a July 7 decree from Pakistan’s Supreme Court that suspended a carbon tax recently imposed by the government of President Asif Ali Zardari. The Pakistani government had expected the carbon tax to raise $1.5 billion this year to help it close a budget deficit. The Supreme Court is hearing a challenge to the government’s authority to impose a carbon tax without approval by Parliament.
On Thursday morning I participated in a Supreme Court Seminar for Baltimore high school teachers cosponsored by the Street Law, Inc. and the U.S. Supreme Court Historical Society. I presented the session on “Competing Judicial Philosophies” where we examined some Supreme Court cases that were decided without the increasingly prevalent conservative/liberal split among the Justices. One of the teachers observed that it is hard to teach principles of American government when many students assume that the political process is simply a battle between good and bad ideologies.
On Friday morning the new sixth edition of my casebook Environmental Regulation: Law, Science & Policy went to press. Due to extraordinary efforts by my research assistants and my publisher, the new edition will be up to date through the end of June, including even an excerpt from the Couer Alaska Clean Water Act case decided by the Supreme Court less than three weeks ago. The book should be available in a few weeks, in plenty of time for fall classes. I celebrated completion of this project by heading down to the Eastern Shore for a crab fest and kayaking on the Choptank River.
Last month’s approval of climate change legislation by the U.S. House of Representatives put President Obama in a stronger position at the G-8 summit to push for aggressive global action to combat climate change. At the same time, however, the Senate Environment & Public Works Committee chaired by Sen. Barbara Boxer announced that it would postpone a vote on climate legislation until late September. Previously it had been hoped that the committee would report out the Senate’s version of the legislation approved by the House by the end of July. The delay is supposed to give the committee more time to craft improved legislation and to persuade wavering senators.
Last week Pakistan’s Oil & Gas Regulatory Authority increased the price of gasoline in the country by nearly 23% in response to a July 7 decree from Pakistan’s Supreme Court that suspended a carbon tax recently imposed by the government of President Asif Ali Zardari. The Pakistani government had expected the carbon tax to raise $1.5 billion this year to help it close a budget deficit. The Supreme Court is hearing a challenge to the government’s authority to impose a carbon tax without approval by Parliament.
On Thursday morning I participated in a Supreme Court Seminar for Baltimore high school teachers cosponsored by the Street Law, Inc. and the U.S. Supreme Court Historical Society. I presented the session on “Competing Judicial Philosophies” where we examined some Supreme Court cases that were decided without the increasingly prevalent conservative/liberal split among the Justices. One of the teachers observed that it is hard to teach principles of American government when many students assume that the political process is simply a battle between good and bad ideologies.
On Friday morning the new sixth edition of my casebook Environmental Regulation: Law, Science & Policy went to press. Due to extraordinary efforts by my research assistants and my publisher, the new edition will be up to date through the end of June, including even an excerpt from the Couer Alaska Clean Water Act case decided by the Supreme Court less than three weeks ago. The book should be available in a few weeks, in plenty of time for fall classes. I celebrated completion of this project by heading down to the Eastern Shore for a crab fest and kayaking on the Choptank River.
Sunday, July 5, 2009
Environmental Interests 0-5 in U.S. Supreme Court, G8 Climate Draft, Carbon Tariffs & India's Climate Stand
(The next several paragraphs are adapted from a blog post I made last Tuesday at the close of my guest stint blogging for www.concurringopinions.com). Last Monday the U.S. Supreme Court concluded its 2008-2009 Term during which it heard five environmental cases. The environmental cases involved issues arising under the National Environmental Policy Act, the National Forest Management Act, the Clean Water Act, and the Superfund legislation. In each of these cases the environment lost. The winners were the U.S. military (Winter v. NRDC), the timber industry (Summers v. Earth Island Institute), electric utilities (Entergy Corp. v. Riverkeeper, Inc.), the mining industry (Coeur Alaska v. Southeast Alaska Conservation Council), chemical companies and railroads (Burlington Northern and Santa Fe Ry. Co. v. U.S.). The losers were marine mammals, the national forests, fish living in proximity to power plants and mines, and taxpayers stuck with paying for cleaning up contaminated land.
Five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.
Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.
Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.
The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.
Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.
Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.
On Wednesday members of the Group of Eight -- the U.S., Canada, Italy, France, Germany, Japan, Russia, and Britain -- will meet in Italy. On the agenda will be a draft declaration endorsing as “an aspirational goal” reducing global emissions of greenhouse gases (GHGs) by 50% by the year 2050. There is some uncertainty concerning what baseline the reductions will be measured against with the EU pushing for 1990 emissions levels as a baseline and the U.S. favoring a more recent year. The draft also embraces the provision of $400 million in financial assistance to developing countries to assist them in controlling GHG emissions and adapting to climate change.
A provision authorizing carbon tariffs in the U.S. climate change legislation that passed the House is causing considerable controversy. President Obama has expressed his opposition to the provision, which would require him to impose tariffs beginning in the year 2020 against products from countries that do not take sufficient action to control their GHG emissions. Last Tuesday India’s new environment minister Jairam Ramesh denounced the carbon tariffs provision as “pernicious” and reiterated India’s categorical opposition to measures to require it to control its GHG emissions. “India will not accept any emissions targets -- period. It is the bottom line, a non-negotiable stand,” he stated. India’s per capita carbon emissions -- 1.2 tons per person -- are among the lowest in the world, but the country’s overall GHG emission are rising rapidly as this nation with nearly 1.2 billion people develops rapidly. Ramesh argues that “India has not polluted. We are bearing the brunt of global climate change caused by the developed countries and we are being asked to curb emissions. I find this ludicrous.” Amy Kazmin, India Attacks US Carbon Tariff Plan, Financial Times, July 1, 2009, p. 5.
Five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.
Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.
Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.
The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.
Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.
Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.
On Wednesday members of the Group of Eight -- the U.S., Canada, Italy, France, Germany, Japan, Russia, and Britain -- will meet in Italy. On the agenda will be a draft declaration endorsing as “an aspirational goal” reducing global emissions of greenhouse gases (GHGs) by 50% by the year 2050. There is some uncertainty concerning what baseline the reductions will be measured against with the EU pushing for 1990 emissions levels as a baseline and the U.S. favoring a more recent year. The draft also embraces the provision of $400 million in financial assistance to developing countries to assist them in controlling GHG emissions and adapting to climate change.
A provision authorizing carbon tariffs in the U.S. climate change legislation that passed the House is causing considerable controversy. President Obama has expressed his opposition to the provision, which would require him to impose tariffs beginning in the year 2020 against products from countries that do not take sufficient action to control their GHG emissions. Last Tuesday India’s new environment minister Jairam Ramesh denounced the carbon tariffs provision as “pernicious” and reiterated India’s categorical opposition to measures to require it to control its GHG emissions. “India will not accept any emissions targets -- period. It is the bottom line, a non-negotiable stand,” he stated. India’s per capita carbon emissions -- 1.2 tons per person -- are among the lowest in the world, but the country’s overall GHG emission are rising rapidly as this nation with nearly 1.2 billion people develops rapidly. Ramesh argues that “India has not polluted. We are bearing the brunt of global climate change caused by the developed countries and we are being asked to curb emissions. I find this ludicrous.” Amy Kazmin, India Attacks US Carbon Tariff Plan, Financial Times, July 1, 2009, p. 5.
Sunday, June 28, 2009
Climate Bill, Alaska Decision, Koh Confirmation, Cheney/Rumsfeld Reunion
On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act, legislation to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212. The bill, which adopts a cap-and-trade program, is supposed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050. It reportedly was 1,021 pages long before a 300-page amendment was added to it at 3AM on the morning of the final vote. Many compromises were made in order to win passage of the bill, including distributing 85% of the emissions allowances for free to various groups, including electric utilities, and giving the Department of Agriculture, instead of EPA, responsibility for certifying emissions offsets. Listening to the debate on the House floor, with some opponents characterizing climate change as a scientific hoax and the bill as an effort to destroy the economy, I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments. A group of Nobel prize-winning economists forecast drastic economic consequences, but the Amendments have proven to be one of the most valuable investments the U.S. has ever made in reducing air pollution. A difficult fight awaits the climate legislation in the U.S. Senate where it will be necessary to win 60 votes to block a Republican filibuster. Australia also is having a hard time winning parliamentary approval for its cap-and-trade program to control GHG emissions.
This week EU environment ministers approved a sweeping plan to reduce emissions of sulfur dioxide and other industrial pollutants by nearly a third by the year 2020. It is estimated that the reductions, which will need to be approved by the European Parliament, will provide $38 billion in annual health benefits. The European Commission also announced this week that it will contribute 50 million euros to help China build a pilot carbon capture and storage facility.
Legislation that will impose short-term costs for long-term benefits is always a difficult political sell. This may explain why Congress sometimes has exempted existing sources from compliance with new pollution controls and why many environmental laws were adopted only after highly publicized environmental disasters. To address concerns that countries that do not act to control GHG emissions may gain a competitive advantage over U.S. industries, the bill allows for emission allowance rebates to industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.
On Monday the U.S. Supreme Court decided its final environmental case of the year, ruling 6-3 that a gold mine in Alaska could dump its tailings into a lake as “fill” material, rather than complying with an effluent standard that forbids similar gold mines from discharging tailings into surface waters. The decision means that the environment went 0 for 5 in the Supreme Court this Term, losing to the military, the timber industry, an electric utility, a railroad, and a mining company. The Supreme Court will conclude its current Term on Monday.
On Wednesday I took Harold Koh, former dean of Yale Law School who President Obama nominated to be the State Department’s Legal Adviser, to see the Washington Nationals play the Boston Red Sox at National Stadium in D.C. Harold is a passionate Red Sox fan and a friend of Larry Lucchino, President and CEO of the Red Sox. While we had planned to sit in my seats behind the Red Sox dugout, we ended up watching the game from visiting owners box with Lucchino and some of his other guests. Harold was in high spirits because that afternoon 65 Senators had voted cloture on the hold that had been put on floor consideration of his nomination. As a result a floor vote on his confirmation was held on Thursday afternoon and he was confirmed by a vote of 62-35.
On Thursday afternoon I said goodbye to Zhang Jingjing, one of China’s top public interest environmental lawyers who has been spending the last year in the U.S. as a Yale World Fellow. We met for tea at the Tea Cellar at the Park Hyatt Hotel. After returning to Beijing on Tuesday, Jingjing will become the China country director for the Public Interest Law Institute. On Thursday night I took Vermont Law School Professor Jason Czarnezki to the Nats/Red Sox game. Jason was in D.C. for the orientation program for Fulbright scholars going to China for the next academic year. Jason and his family will be living in Guangzhou while he teaches at Sun Yat-sen University School of Law.
I spent the weekend visiting my in-laws on the Eastern Shore of Maryland. Last night we went to dinner at a wonderful restaurant in the tiny town of Trappe (population 1,146). Shortly after we were seated I looked up and saw, coming back from the restroom, former Vice President Dick Cheney. He and his wife Lynne were dining a few tables away from us with former Defense Secretary Donald Rumsfeld. They both own homes in St. Michaels, Maryland, 19 miles away. They were accompanied by a security detail, which we learned observed from the kitchen the preparation of their food.
This week EU environment ministers approved a sweeping plan to reduce emissions of sulfur dioxide and other industrial pollutants by nearly a third by the year 2020. It is estimated that the reductions, which will need to be approved by the European Parliament, will provide $38 billion in annual health benefits. The European Commission also announced this week that it will contribute 50 million euros to help China build a pilot carbon capture and storage facility.
Legislation that will impose short-term costs for long-term benefits is always a difficult political sell. This may explain why Congress sometimes has exempted existing sources from compliance with new pollution controls and why many environmental laws were adopted only after highly publicized environmental disasters. To address concerns that countries that do not act to control GHG emissions may gain a competitive advantage over U.S. industries, the bill allows for emission allowance rebates to industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.
On Monday the U.S. Supreme Court decided its final environmental case of the year, ruling 6-3 that a gold mine in Alaska could dump its tailings into a lake as “fill” material, rather than complying with an effluent standard that forbids similar gold mines from discharging tailings into surface waters. The decision means that the environment went 0 for 5 in the Supreme Court this Term, losing to the military, the timber industry, an electric utility, a railroad, and a mining company. The Supreme Court will conclude its current Term on Monday.
On Wednesday I took Harold Koh, former dean of Yale Law School who President Obama nominated to be the State Department’s Legal Adviser, to see the Washington Nationals play the Boston Red Sox at National Stadium in D.C. Harold is a passionate Red Sox fan and a friend of Larry Lucchino, President and CEO of the Red Sox. While we had planned to sit in my seats behind the Red Sox dugout, we ended up watching the game from visiting owners box with Lucchino and some of his other guests. Harold was in high spirits because that afternoon 65 Senators had voted cloture on the hold that had been put on floor consideration of his nomination. As a result a floor vote on his confirmation was held on Thursday afternoon and he was confirmed by a vote of 62-35.
On Thursday afternoon I said goodbye to Zhang Jingjing, one of China’s top public interest environmental lawyers who has been spending the last year in the U.S. as a Yale World Fellow. We met for tea at the Tea Cellar at the Park Hyatt Hotel. After returning to Beijing on Tuesday, Jingjing will become the China country director for the Public Interest Law Institute. On Thursday night I took Vermont Law School Professor Jason Czarnezki to the Nats/Red Sox game. Jason was in D.C. for the orientation program for Fulbright scholars going to China for the next academic year. Jason and his family will be living in Guangzhou while he teaches at Sun Yat-sen University School of Law.
I spent the weekend visiting my in-laws on the Eastern Shore of Maryland. Last night we went to dinner at a wonderful restaurant in the tiny town of Trappe (population 1,146). Shortly after we were seated I looked up and saw, coming back from the restroom, former Vice President Dick Cheney. He and his wife Lynne were dining a few tables away from us with former Defense Secretary Donald Rumsfeld. They both own homes in St. Michaels, Maryland, 19 miles away. They were accompanied by a security detail, which we learned observed from the kitchen the preparation of their food.
Sunday, June 21, 2009
Vermont/China Project, EU Airports, Yankee Stadium & Iran
On Tuesday night I had dinner with Wang Canfa and Tseming Yang who were in Washington for meetings associated with Vermont Law School’s Partnership for Environmental Law in China. Steve Wolfson from EPA’s Office of International Affairs also joined us. On this trip Professor Wang, my former colleague from the China University of Political Science and Law in Beijing, brought his wife to the U.S. for the first time, though she did not join us for dinner.
Last week a group of 11 companies who own 31 airports in the European Union signed an agreement pledging to make their airports “carbon neutral.” The agreement was announced at the Airports Council International Europe annual conference in Manchester, England. It covers airports with one-quarter of air traffic in Europe. Beginning in 2012, airlines in the EU will be subject to controls on their greenhouse gas (GHG) emissions, but airports, which account for 5% of the EU’s GHG emissions are not covered by these controls.
On Wednesday I traveled to New York City to visit the new Yankee Stadium where my Washington Nationals were playing the New York Yankees. On Wednesday night my daughter and I watched the Nats beat the Yanks 3-2 in an exciting game decided on the very last pitch. On Thursday we had tickets for an afternoon game, but rainstorms delayed its start for five and one-half hours so we had to be on the train back to D.C. before the game, which the Nats won 3-0, started. Due to their series victory, the Nats continue to be the only team in major league baseball with an all-time winning record against the Yankees. The new Yankee Stadium, which we had considerable time to explore during the Thursday rain delay, is quite impressive. It is much larger than the old stadium across the street and the concourses and seating are much more comfortable. The field is almost an exact replica of the old stadium’s field. One strange rule that made us miss the Nats’ batting practice on Wednesday night is that fans are not allowed to bring large purses into the stadium. My daughter had to check hers at a sportings good store across the street.
This week my thoughts have been focused on the political situation in Iran, a country that I visited in May 2001 to participate in a week-long environmental workshop at the University of Tehran. My visit was made possible by the Search for Common Ground, an NGO that focuses on reducing inteernational conflict. At the time the Iranian foreign ministry was controlled by President Mohammad Khatami, a moderate who had been the surprise victor in the 1997 election. While he was re-elected in 2001, his government’s efforts to increase political and social freedoms were consistently obstructed by the conservative Council of Guardians, a group of mullahs who controlled the police and the judiciary and who dictated what candidates could run for office.
When I visited Iran, I was surprised to discover a robust civil society that included more than 230 environmental NGOs. These groups were chafing under the restrictions imposed by the theocratic government that had virtually ignored the country’s burgeoning environmental problems. I met the founder of the first environmental NGO in Iran, the Women’s Society Against Pollution. The group was founded in the early 1970s by a librarian who became interested in environmental law when she discovered that there was no established way to categorize the first book on environmental law that her library received, which forced her to spend time reading the book.
Another striking feature of Iran when I visited in 2001 was that more than half the country’s population had been born after the Islamic Revolution in 1979. These young and generally well-educated Iranians were chafing at the government’s efforts to severely restrict women’s dress, the ability of men and women to meet in private, access to satellite TV, and a national prohibition on alcohol. Many people argued that the government’s efforts to impose religiously-motivated, strict social mores had only fostered corruption and cynicism toward the rule of law. When spiteful neighbors reported mixed-sex parties or alcohol use, the police often used these reports to shake down neighbors for bribes.
I was tremendously impressed by the environmental scientists and lawyers I met in Iran. Yet the one consistent message I received from all Iranians was that anything the U.S. did to try to influence Iranian politics inevitably would backfire and be used by the Islamic hard-liners as an excuse to demonize the West. Thus, I am impressed so far with President Obama’s nuanced response to Iranian protests of what appears to be a stolen election. My own quiet way of supporting some of the terrific environmental professors I met in Iran is to serve as the only U.S. member of the editorial board of the University of Tehran’s International Journal of Environmental Research, an English-language quarterly publication of articles that focus largely on new developments in environmental science and engineering.
Last week a group of 11 companies who own 31 airports in the European Union signed an agreement pledging to make their airports “carbon neutral.” The agreement was announced at the Airports Council International Europe annual conference in Manchester, England. It covers airports with one-quarter of air traffic in Europe. Beginning in 2012, airlines in the EU will be subject to controls on their greenhouse gas (GHG) emissions, but airports, which account for 5% of the EU’s GHG emissions are not covered by these controls.
On Wednesday I traveled to New York City to visit the new Yankee Stadium where my Washington Nationals were playing the New York Yankees. On Wednesday night my daughter and I watched the Nats beat the Yanks 3-2 in an exciting game decided on the very last pitch. On Thursday we had tickets for an afternoon game, but rainstorms delayed its start for five and one-half hours so we had to be on the train back to D.C. before the game, which the Nats won 3-0, started. Due to their series victory, the Nats continue to be the only team in major league baseball with an all-time winning record against the Yankees. The new Yankee Stadium, which we had considerable time to explore during the Thursday rain delay, is quite impressive. It is much larger than the old stadium across the street and the concourses and seating are much more comfortable. The field is almost an exact replica of the old stadium’s field. One strange rule that made us miss the Nats’ batting practice on Wednesday night is that fans are not allowed to bring large purses into the stadium. My daughter had to check hers at a sportings good store across the street.
This week my thoughts have been focused on the political situation in Iran, a country that I visited in May 2001 to participate in a week-long environmental workshop at the University of Tehran. My visit was made possible by the Search for Common Ground, an NGO that focuses on reducing inteernational conflict. At the time the Iranian foreign ministry was controlled by President Mohammad Khatami, a moderate who had been the surprise victor in the 1997 election. While he was re-elected in 2001, his government’s efforts to increase political and social freedoms were consistently obstructed by the conservative Council of Guardians, a group of mullahs who controlled the police and the judiciary and who dictated what candidates could run for office.
When I visited Iran, I was surprised to discover a robust civil society that included more than 230 environmental NGOs. These groups were chafing under the restrictions imposed by the theocratic government that had virtually ignored the country’s burgeoning environmental problems. I met the founder of the first environmental NGO in Iran, the Women’s Society Against Pollution. The group was founded in the early 1970s by a librarian who became interested in environmental law when she discovered that there was no established way to categorize the first book on environmental law that her library received, which forced her to spend time reading the book.
Another striking feature of Iran when I visited in 2001 was that more than half the country’s population had been born after the Islamic Revolution in 1979. These young and generally well-educated Iranians were chafing at the government’s efforts to severely restrict women’s dress, the ability of men and women to meet in private, access to satellite TV, and a national prohibition on alcohol. Many people argued that the government’s efforts to impose religiously-motivated, strict social mores had only fostered corruption and cynicism toward the rule of law. When spiteful neighbors reported mixed-sex parties or alcohol use, the police often used these reports to shake down neighbors for bribes.
I was tremendously impressed by the environmental scientists and lawyers I met in Iran. Yet the one consistent message I received from all Iranians was that anything the U.S. did to try to influence Iranian politics inevitably would backfire and be used by the Islamic hard-liners as an excuse to demonize the West. Thus, I am impressed so far with President Obama’s nuanced response to Iranian protests of what appears to be a stolen election. My own quiet way of supporting some of the terrific environmental professors I met in Iran is to serve as the only U.S. member of the editorial board of the University of Tehran’s International Journal of Environmental Research, an English-language quarterly publication of articles that focus largely on new developments in environmental science and engineering.
Monday, June 15, 2009
Climate Talks, Peruvian Protests,Sara-wiwa Settlement & Tobacco Law
Last week the latest round of global negotiations to draft an agreement on a post-Kyoto greenhouse gas (GHG) control regime for signing at the Copenhagen conference in December concluded in Bonn. Little progress was reported, though the meeting concluded with the parties expressing cautious optimism. Further information is available at: http://unfccc.int/meetings/sb30/items/4842.php. The Japanese government proposed to cut its country’s emissions of GHG by 8% below 1990 by the year 2020, disappointing many environmentalists and other governments, including the Chinese who continue to resist any specific commitment to reduce their emissions. I have posted a description of my views concerning the Chinese position on the blog “Concurring Opinions,” where I am serving as a guest blogger this month (June 13th post on http://www.concurringopinions.com/). The next informal negotiating session will be held in Bonn beginning on August 10.
During the last two months indigenous groups in Peru have been protesting government plans for development of the Amazon region. More than 30 people were killed the week before last as the Peruvian government sought to quell protesters who had blocked a road and an airport. Last Wednesday the Peruvian Congress suspended a law that made it easier to cut down trees in the Amazon rainforest, but the protest intensified on Thursday as the indigenous groups held a National Protest Day in at least a dozen Peruvian cities. The leadership of the government-dominated Congress suspended for three months seven indigenous members of Congress who had been supporting the protests and an indigneous community radio station reportedly has been shut down.
Last week Royal Dutch Shell agreed to pay $15.5 million to settle the Alien Tort Statute lawsuit brought against it for involvement with the Nigerian military in the 1995 execution of environmental activist Ken Saro-wiwa. The settlement was reached just as the trial was about to commence after thirteen years of litigation. I spoke with one of the lawyers who had worked on the case and she expressed considerable excitement about the settlement. Shell maintains that it had no involvement in the execution of Sara-wiwa and eight other Ogoni leaders who had been protesting oil pollution in the Niger Delta. It describes the settlement as a “humanitarian gesture.”
On Friday the U.S. Congress enacted landmark legislation to give the Food and Drug Administration the authority to regulate tobacco products. The law is a response to the U.S. Supreme Court’s 5-4 decision nine years ago rejecting the agency’s conclusion that it could regulate such products because they are “drug delivery devices” to hook smokers on nicotine. This decision contrasted sharply with the Court’s normal deference to agency interpretations of ambiguous statutory provisions. The new law is not without its critics because several compromises were made to win broad support for the legislation, including from some tobacco companies. The FDA will not be allowed to raise the age at which it is legal to smoke (foreclosing the option of declaring a new generation off limits to the tobacco industry by raising the legal age for smoking by one year every year). It cannot ban nicotine entirely or remove menthol flavoring from cigarettes. But in general the legislation is a huge step toward regulating products that kill 400,000 people in the U.S. every year. An interesting news story would be to explore why the political fates of the tobacco and gun lobbies (two of the three members of the “Mod Squad” -- for “merchants of death” -- in Christopher Buckley’s marvelously funny novel “Thank You for Smoking”) have diverged so dramatically in recent years.
On Thursday I took Zhang Jingjing, one of China’s top public interest environmental lawyers, to see the Washington Nationals in a rare comeback win at home. While eating dinner on Capital Hill after the game, we ran into Senator (and 2004 Presidential candidate) John Kerry who spoke with us and posed for a picture with Jingjing. Jingjing, who has been in the U.S. as a Yale World Fellow this year, told Senator Kerry that she attended his recent hearing on climate change and that she understands how important it is that China control its GHG emissions.
During the last two months indigenous groups in Peru have been protesting government plans for development of the Amazon region. More than 30 people were killed the week before last as the Peruvian government sought to quell protesters who had blocked a road and an airport. Last Wednesday the Peruvian Congress suspended a law that made it easier to cut down trees in the Amazon rainforest, but the protest intensified on Thursday as the indigenous groups held a National Protest Day in at least a dozen Peruvian cities. The leadership of the government-dominated Congress suspended for three months seven indigenous members of Congress who had been supporting the protests and an indigneous community radio station reportedly has been shut down.
Last week Royal Dutch Shell agreed to pay $15.5 million to settle the Alien Tort Statute lawsuit brought against it for involvement with the Nigerian military in the 1995 execution of environmental activist Ken Saro-wiwa. The settlement was reached just as the trial was about to commence after thirteen years of litigation. I spoke with one of the lawyers who had worked on the case and she expressed considerable excitement about the settlement. Shell maintains that it had no involvement in the execution of Sara-wiwa and eight other Ogoni leaders who had been protesting oil pollution in the Niger Delta. It describes the settlement as a “humanitarian gesture.”
On Friday the U.S. Congress enacted landmark legislation to give the Food and Drug Administration the authority to regulate tobacco products. The law is a response to the U.S. Supreme Court’s 5-4 decision nine years ago rejecting the agency’s conclusion that it could regulate such products because they are “drug delivery devices” to hook smokers on nicotine. This decision contrasted sharply with the Court’s normal deference to agency interpretations of ambiguous statutory provisions. The new law is not without its critics because several compromises were made to win broad support for the legislation, including from some tobacco companies. The FDA will not be allowed to raise the age at which it is legal to smoke (foreclosing the option of declaring a new generation off limits to the tobacco industry by raising the legal age for smoking by one year every year). It cannot ban nicotine entirely or remove menthol flavoring from cigarettes. But in general the legislation is a huge step toward regulating products that kill 400,000 people in the U.S. every year. An interesting news story would be to explore why the political fates of the tobacco and gun lobbies (two of the three members of the “Mod Squad” -- for “merchants of death” -- in Christopher Buckley’s marvelously funny novel “Thank You for Smoking”) have diverged so dramatically in recent years.
On Thursday I took Zhang Jingjing, one of China’s top public interest environmental lawyers, to see the Washington Nationals in a rare comeback win at home. While eating dinner on Capital Hill after the game, we ran into Senator (and 2004 Presidential candidate) John Kerry who spoke with us and posed for a picture with Jingjing. Jingjing, who has been in the U.S. as a Yale World Fellow this year, told Senator Kerry that she attended his recent hearing on climate change and that she understands how important it is that China control its GHG emissions.
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