IMO Rules, Md. Legislature Attack on Clinic, ASIL Meeting

On Friday March 26 the International Maritime Organization (IMO) in London adopted new rules that will sharply reduce air pollution from ships in U.S. and Canadian coastal waters. Beginning in 2012 the rules require ships operating within 200 miles of each nation’s coast to use fuel with a sulfur content 98 percent below existing fuels. Beginning in 2016, new ships operating in these waters must have advanced pollution control technology. EPA, which estimates that the rules will save 14,000 lives in the U.S. and Canada, previously had issued similar regulations for U.S. ships. The IMO action, which was not opposed by the cruise and shipping industries, extends these rules to all ships operating in these waters. This will be a major step to clean up international shipping which has been one of the most heavily polluting industries because of its traditional reliance on cheap, but dirty, bunker fuels.

As discussed in the March 7, 2010 entry on this blog, on March 1 the University of Maryland Environmental Law Clinic filed a landmark lawsuit challenging the poultry industry’s chicken waste management practices, alleging that they violate the Clean Water Act. The large agribusiness company Perdue Farms is named as a defendant in the lawsuit. Perdue’s political allies in the Maryland General Assembly have responded by seeking to cut funds for Maryland’s Environmental Law Clinic. While Maryland usually is considered a progressive state that supports measures to protect the environment, the chairs of the House and Senate Budget committees are from the Eastern Shore where Perdue has considerable political influence. They managed to insert amendments to the university’s budget that would withhold up to $500,000 in funding until the school issues reports revealing data about the clinic’s clients, expenditures and case selection strategies.  The Baltimore Sun denounced the legislature’s move as “blatant stupidity” in an editorial that can be viewed online at:  http://weblogs.baltimoresun.com/news/opinion/2010/03/state_house_bullies_um_law_sch.html While this is not the first time that Maryland’s Environmental Law Clinic, which is one of the very finest in the nation, has been attacked by industry groups, it is the first time that the legislature has entertained such tactics. Maryland’s dean and faculty are vigorously opposing the budget amendments and hope that they will be removed when the final legislation is adopted.

This weekend I met Professor Yongmin Bian from the Law School of the University of International Business and Economics in Beijing. Professor Yongmin teaches environmental law and public international law and is an expert on international trade issues. Her reaction upon hearing about the Maryland legislature’s attempt to punish our clinic for suing Perdue is that it sounded like the kind of thing that routinely happens in China and that it was shocking to hear that it could occur in a country like the U.S. with an independent judiciary and a long tradition of respect for the rule of law. Cases should be decided on their merits and not by attempts to intimidate lawyers or litigants. Professor Yongmin was in Washington as the coach of her school’s Jessup International Law Moot Court Team. A team from the Australian National University won the competition this weekend.

On Friday and Saturday I attended the Annual Meeting of the American Society of International Law (ASIL) in Washington. I had hoped to attend State Department Legal Adviser Harold Koh’s keynote address on Thursday afternoon, but was precluded from doing so by an emergency faculty meeting to discuss the Maryland Legislature’s attack on the clinic. Harold’s remarks, which focus largely on the administration’s efforts to combat terrorism are available online at: http://www.state.gov/s/l/releases/remarks/139119.htm I attended very interesting panels on recent developments in Alien Tort Statute litigation and efforts to respond to global climate change. The Saturday panel on the Road Forward from Copenhagen noted that Copenhagen had exposed the limitations of a consensus-based global treaty process and suggested that domestic legislation that regulates access to carbon markets is now emerging as a key driver of future progress.

Spring Break Tour of China

In the early hours this morning our group of 37 Maryland environmental law students and alums returned to Baltimore from our spring break tour of China. The trip was a huge success despite a very tight schedule that took us to Beijing, X’ian, and Shanghai in the space of a week. A large album of photos of the trip is available online at: http://gallery.me.com/rperci/100660. On Monday morning March 15 we visited the Great Wall, which was covered in snow as a result of the surprise blizzard the day before. This made climbing the wall rather difficult, particularly coming down some of the steepest sections. But the blue sky and snow-covered wall provided terrific scenery.

On Monday afternoon we visited the Center for Legal Assistance to Pollution Victims (CLAPV) on the downtown campus of the China University of Political Science and Law (CUPL). CUPL law professor Wang Canfa founded CLAPV in 1999 by setting up a hotline to field complaints about environmental conditions in any part of China. Professor Wang showed us the hotline and his offices and then we adjourned to a classroom where he gave a terrific lecture on the development of public interest environmental law in China. Our group learned a lot from Professor Wang and I am most appreciative of his taking the time to meet with us. Professor Wang described his vision for the next phase in the evolution of public interest environmental law in China which includes the development of private law firms that will represent victims of pollutions.

Following dinner with the group in a Beijing hutong, I met with former CLAPV lawyer Zhang Jingjing who is now with the China office of the Public Interest Law Initiative (PILI). She noted that the public interest law movement in China is still in its early phases of development with the key players easy to identify. The current Chinese edition of Esquire magazine is devoted to the theme of “Green China” and it features photo spreads of China’s top environmemtalists, including Wang Canfa and Jing Jing. I obtained a copy of the magazine at the Beijing airport on Tuesday prior to boarding our flight to X’ian. One page of photos is devoted to lawyers, but most of the people pictured are the leaders of grassroots environmental groups.

Prior to departing for X’ian on Tuesday morning, our group made an early morning stop at the Beijing offices of the Natural Resources Defense Council (NRDC). NRDC-Beijing director Alex Wang graciously agreed to open the office at 7:30AM so that our group could visit. He said that ours was the largest group ever to visit the offices. Alex gave a terrific presentation about the work NRDC is doing in China and its multi-prong strategy for improving energy efficiency, greening supply chains, and combating air and water pollution.

In X’ian on Tuesday and Wednesday we visited tourist sites, including the Shaanxi Provincial Museum, the Big Wild Goose Pagoda, and the famous site where thousands of terra cotta warriors buried by Emporer Qin Shi Huang were discovered by a farmer digging a well in 1974. I had been to the latter twice before, the first time in 1981, shortly after the site was opened to the public. On Thursday we had a very early morning flight to Beijing, so early that our luggage was checked in prior to the group, resulting in one student being stranded in X’ian after he discovered that his passport was in his checked luggage. Chinese security would not let him board our plane without a passport so he had to made a 16-hour journey by overnight train in order to rejoin the group in Shanghai.

In Shanghai we visited the Nanjing Road shopping area, the Jade Buddha Temple, and Yu Yuyuan Gardens prior to attending a Friday evening reception in our honor at the Maryland China Center. At the reception we heard terrific presentations from Zhenxi Zhong, who described her work with Jane Goodall’s Roots & Shoots office in Shanghai, and former Fulbright professor Dan Guttman, who discussed differences in the meaning of law and legal policy in China and the U.S. We also were joined in Shanghai by Mary O’Loughlin who is doing environmental policy research at Wuhan University sponsored by the Fulbright program and Michael Jean, a third year Maryland law student who recently moved back to Shanghai after her partner was transferred there.

On Saturday morning we visited the World Financial Center where we had a panoramic view of Shanghai from the 100th floor observation deck. We then stopped at the Mag-Lev Terminal in order to be whisked to the airport in seven minutes on a train that reached speeds of more than 430km/hour using magnetic levitation technology. On Saturday afternoon we flew back to the U.S., clearing customs in San Francisco.

UMD Wins Int'l Moot Court, China Tour & Copenhagen Accord (Belated 3/14 Post)

Because I was behind the great firewall of China last week I was unable to post this until now. Last Sunday I was in Beijing where I was leading a group of 37 students and alums on an environmental law tour of China during our spring break. We left Washington on Friday March 12 at noon and flew to Beijing with a stop to change planes in Tokyo. We arrived in Beijing late Saturday night and are staying at a hotel just south of Tiananmen Square. On Sunday March 13 we spent our first full day in China in a surprise blizzard as we toured the Temple of Heaven, the Summer Palace, the Forbidden City, and Tiananmen Square. The forecast had been for snow flurries changing to light rain, but the snow started out fairly heavy and just intensified throughout the day. Fortunately it was warm enough that the snow melted as it hit the roads so transportation was not greatly impeded, but there was a substantial accumulation of snow everywhere else.

Maryland Professor Shruti Rana who is in China to help set up a microfinance clinic joined our group for the day along with one of the alums of our joint Maryland/China business law exchange program. We also were joined in the afternoon by Huang Jing and Wang Jing, two of my former environmental law students from the China University of Political Science and Law (CUPL) who reported that they had just learned that CUPL’s moot court team had defeated Maryland in one of the preliminary rounds of the International Environmental Moot Court Competition being held this weekend at Stetson University Law School in Gulfport, Florida.

On Monday March 15) I received the news that, despite the loss to my former students from CUPL, Maryland’s team went on to win the International Environmental Moot Court Competition.  The team of Molly Knoll, April Morton, and William Tilburg had advanced to the Quarterfinal Rounds after defeating teams from India, Ukraine, Brazil, and the University of Pennsylvania, while losing to CUPL in the preliminary rounds.  CUPL also advanced to the Quarterfinals.  Maryland then defeated UC-Hastings in the quarterfinals on Sunday morning and then proceeded to win the semis and finals.  Molly Knoll was named best oralist in the final round.  Maryland also won the award for second best memorial.

Congratulations to Maryland alums David Mandell and Karla Schaffer who teach our Environmental Advocacy seminar as adjunct faculty and who put in so much of their own time coaching the team. This is a particularly timely achievement because Maryland will not be able to compete in the competition next year because we will be hosting the International Finals with 20 teams from all over the world coming to Baltimore in March 2011.

During the week of March 8 the Chinese and Indian governments transmitted letters to the United Nations (UN) agreeing to associate their countries with the Copenhagen Accord. India’s environment minister Jairam Ramesh stated that by listing itself as joining the accord, the country strengthened its negotiation position on climate change. China’s chief climate negotiator Su Wei sent a one-sentence letter stating that the UN “can proceed to include China in the list of parties” associated with the Copenhagen Accord. EU climate commissioner Connie Hedegaard of Denmark stated that the nations of the world should now seek to complete a global treaty to control emissions of greenhouse gases in the 2011 conference of parties (COP) to be held in South Africa, rather than in the COP scheduled for Cancun in December 2010. John M. Broder, Climate Goal Is Supported by China and India, N.Y. Times, March 10, 2010, at A9.

Comer En Banc, Chicken Waste Suit, China Tobacco Clinic, CIEL 20th, Fordham Conference

On Monday March 1 the U.S. Court of Appeals for the Fifth Circuit announced that it had granted a petition for rehearing en banc in the case of Comer v. Murphy Oil USA. The court’s action vacates the October decision by a three-judge panel holding that climate change did not raise a political question that would prevent trial of a lawsuit brought by victims of Hurricane Katrina who allege that oil companies contributed to climate change that exacerbated their hurricane damage. The court will rehear the case en banc in late May 2010. It is possible that the en banc court could follow the suggestion by Judge Davis in his concurrence in the panel decision that, while the case is justiciable, the plaintiffs have failed to allege facts to establish that the defendants’ actions were the proximate cause of their injury. The U.S. Court of Appeals for the Ninth Circuit is currently hearing an appeal of the Native Village of Kivalina v. ExxonMobil, where another federal trial court dismissed an Alaskan village’s claims for damages due to climate change as raising a nonjusticiable political question.

On Monday March 1 the University of Maryland Environmental Law Clinic filed a landmark lawsuit to challenge chicken manure management practices that pollute the Chesapeake Bay. Plaintiffs Assateague Coastkeeper, the Assateague Coastal Trust and the Waterkeeper Alliance filed a citizen’s suit alleging that a large chicken farm in Worcester County, Maryland, and the giant chicken producer Perdue Farms, Inc. violated the Clean Water Act. Environmental Clinic Director Jane Barrett, Fellow Tina Meyers and clinic students have done a terrific job preparing this case.

This has been a really busy week as I prepare to lead a group of 40 Maryland law students and alums on a spring break tour of China departing next Friday. On Wednesday we had an orientation session for the group and it looks like it will be a spectacular trip. On Monday I met a group of professors from the China University of Political Science and Law (CUPL) in Beijing who were visiting Maryland to consult with Professor Kathleen Dachille, director of our Tobacco Control Clinic. CUPL, where I taught as a Fulbright Scholar two years ago, is in the process of establishing a similar clinic, confirming the growing interest in tobacco control initiatives in China.

On Tuesday I met with Jorge Guzman, Coordinator for the Environmental Secretariat established by the Dominican Republic-Central America-U.S. Free Trade Agreement (DR-CAFTA). In August 2004 the U.S. signed the agreement, the first between the U.S. and smaller developing countries (Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua). Like the North American Free Trade Agreement (NAFTA), DR-CAFTA establishes a procedure for citizen complaints about environmental conditions. Jorge Guzman reported that there have been six environmental complaints filed since the procedure was launched in 2006. He is working to enhance understanding of environmental law in Central America and I hope to be able to assist him in this worthy cause. I am grateful to Professor Carmen Gonzalez from Seattle University Law School for putting Mr Guzman in contact with me.

On Tuesday night I attended the 20th anniversary celebration of the Center for International Environmental Law (CIEL). The event was held at the U.S. Botanic Gardens at the foot of Capitol Hill. It gave me a great chance to catch up with many of the people working in the global environmental law field today, including some of my former students and a current student who is interning at CIEL.

On Friday I spoke at a conference on Environmental Litigation and Corporate Social Responsibility at Fordham Law School. The Fordham law students who organized the conference, including Elizabeth Marcon, did a terrific job. Professor Ronnie Chatterji from Duke’s Fuqua School of Business opened the conference by discussing how difficult it is to measure corporate social responsibility (CSR). Carol DInkins of Vinson & Elkins discussed CSR from the perspective of counsel to corporations. Professor Lakshman Guruswamy from the University of Denver explained why international law is not well-suited to influencing corporate behavior in this area. Professor Martha Judy of Vermont Law explored how the Superfund legislation (CERCLA) influences corporate behavior. Professor Hope Babcock from Georgetown proposed using contract law to improve CSR. Tony Roisman illustrated how you do not need a fancy powerpoint to hold an audience’s attention with an inspiring speech about why litigation remains an essential tool, despite its difficulties. I gave the final presentation of the day on why the future of corporate social responsibility is global in light of the rapid development of global environmental law. Papers prepared for the conference will be published in the Fordham Environmental Law Review.

Comparative Disclosure Study, IPCC Review & Reducing Port Pollution

On Wednesday February 24, Jonathan Nwagbaraocha of Enhesa was a guest speaker in my Global Environmental Law seminar. He presented a paper on “Global Pollutant and Greenhouse Gas Emissions Reporting” that he had prepared as part of his work advising companies on how to comply with global environmental standards. A copy of the paper is available on my parallel website at: www.globalenvironmentallaw.com. Jonathan, who is a 2005 graduate of Maryland’s Environmental Law Program, found that several countries have adopted disclosure requirements similar to the Toxics Release Inventory established in the U.S. by the Emergency Planning and Community Right to Know Act (ECRA). The European Union’s disclosure requirements are among the most extensive. The paper also tracks the growth of disclosure requirements for greenhouse gas (GHG) emissions.

The Intergovernmental Panel on Climate Change (IPCC) has announced that it will establish an independent committee of experts to review the panel’s procedures. Appointment of the independent panel is a response to criticism of mistakes in the IPCC’s Fourth Assessment report, including an estimate that glaciers in the Himalayas could disappear in 2035 instead of 2350, and the release of stolen emails from University of East Anglia climate researchers. While the details of how the independent panel will be selected will not be available until next month, the IPCC noted that it continues to “stand firmly behind the rigour and robustness of the 4th Assessment Report’s conclusions” which “are based on an overwhelming body of evidence from thousands of peer-reviewed and independent scientific studies.”

Republican U.S. Senator Lindsey Graham reportedly is proposing a targeted carbon tax as an alternative to the cap and trade program for controlling GHG emissions that is included in the Maxman-Markey bill that passed the U.S. House of Representatives last spring. Noting that few college students have any doubt about the reality of climate change, Graham reportedly believes that it is essential that Republicans modify their opposition to efforts to reduce GHG emissions. Thomas L. Friedman, How the G.O.P. Goes Green, New York Times, February 28, 2010.

The Teamsters union has endorsed the use of low-emissions trucks to serve ports in the U.S. in an effort to reduce serious pollution problems there. A coalition of labor groups and environmentalists helped convince the Port of Los Angeles to ban the use of older, high-emission trucks to transport cargo from the port. The Port Authority of New York and New Jersey and the Port of Los Angeles have adopted plans to impose additional charges on those who use older vehicles in order to help provide financial assistance for the purchase of low emission vehicles. Steven Greenhouse, Clearing the Air at American Ports, N.Y. Times, Feb. 26, 2010.

WHO Visit, 50 New Country Profiles, Cap & Nukes? USCAP Defections (by Bob Percival)

On Monday February 15 I spent the day at the World Health Organization (WHO) in Geneva, Switzerland where I gave a lunchtime talk and had meetings with WHO officials. In my talk on “How Safe Is ‘Safe’? The Emerging Global Law of Environmental Health Protection” I reviewed the history of environmental risk regulation and new developments that are occurring as global environmental law continues to evolve. WHO officials, who have played a major role in improving public health on the planet, appreciate the importance of environmental regulation as a means for preventing harm to public health. In the meetings that I held with them following my talk we discussed some exciting new ways in which we can build more bridges between the environmental law and public health communities. I am grateful for the opportunity to visit WHO and I look forward to a very fruitful collaboration with them.

Students in my Global Environmental Law seminar have been busy this semester. They have just completed 50 new country profiles that have been added to my parallel website at www.globalenvironmentallaw.com. As a result we now have capsule descriptions of the state of environmental law in 112 countries: 28 in Africa, 27 in Europe, 15 in North America and Central America, 13 in Asia, 12 in the Middle East, 11 in South America, and 6 in Oceania.

President Obama this week announced the approval of federal loan guarantees to help finance the develop of two new nuclear powerplants in the U.S. His speech endorsing a revival of the U.S. nuclear power industry as a source of carbon-free energy was seen as an effort to reach out to Senate skeptics of cap-and-trade legislation who support an expansion of the nuclear industry. These include Republican Senator Lindsey Graham of South Carolina who has come under fire in his own party for expressing an open mind on the need to control greenhouse gas (GHG) emissions. Efforts to expand nuclear power should put more pressure on the administration to come up with a new plan to dispose of high-level radioactive waste after it seemingly has pulled the plug on the Yucca Mountain repository.

This week three prominent companies withdrew from the U.S. Climate Action Partnership, a group of businesses and environmental groups that had endorsed legislation to control GHG emissions. The three include the American arm of the British oil company BP PLC, ConocoPhillips, and Caterpillar. The companies stated that their withdrawal from the group did not signal any change in their support for GHG controls, but rather disagreement over the precise form such controls should take. All three had objected to provisions in the Waxman-Markey bill that passed the U.S. House of Representatives in June.

This week Yvo de Boer, executive secretary of the UN Framework Convention on Climate Change (UNFCC), announced that he would resign effective July 1. He described the possibility of reaching a global agreement at the next climate summit in Cancun in December as “a very heavy lift” and criticized governments for not doing more to involve the private sector in the process.

China Pollution Data, Snow, Macworld & Geneva

Last Tuesday the Chinese government released the results of a two-year national survey of sources of pollution. The data, which include 5.9 million sources of pollution, are to be used to help the government develop a new five-year plan for combating pollution. Zhang Lijun, China’s vice minister of environmental protection, said that the data also may be used to help develop new green taxes to increase incentives to reduce emissions. One of the most striking findings of the data was the large share of water pollution that comes from agricultural runoff. The raw data were not released to the public, but the Chinese government said that wastewater discharges included 30.3 million tons of biochemical oxygen demand, greatly in excess of the 7.4 million tons that it had estimated that Chinese lakes and rivers were capable of absorbing. A New York Time article describing the data and quoting my friend Ma Jun, director of the Institute of Public and Environmental Affairs, is available online at: http://www.nytimes.com/2010/02/10/world/asia/10pollute.html

Snow shut down the Baltimore/Washington area from Monday through Thursday last week. I was fortunate to be able to leave for San Francisco on Monday to attend the annual Macworld conference. One of the exciting new developments this year is interest in adapting casebooks so that they can be used on Apple Computer’s newly announced iPad. The advantages not only would include freeing law students from having to haul around gigantic books, but also immediate access to multimedia materials without having to make separate trips to the internet. In my view, it is just a matter of when and the result may be a revolution in how casebooks are published and distributed.

I am now in Geneva, Switzerland where I will be giving a talk tomorrow at the World Health Organization (WHO) on “How Safe Is ‘Safe’? The Emerging Global Law of Environmental Protection.” I also am visiting two students of mine - Briana Wagner and Kristen Weiss - who are working on internships at WHO on a project to assess how developing countries can improve their laws relating to liability for harm to public health from environmental pollution.