Philippine Road-Sharing Petition, Singapore to Fine Foreign Polluters, U.S. Fuel Economy for Trucks, Bhutan Electric Cars, UMD Summit (by Bob Percival)

On February 17 the Share the Road movement led by environmental activist Tony Oposa marched to the Supreme Court of the Philippines to file a petition.  The petition asks the Court to issue a writ of kalikasan requiring “road-sharing.” The writ of kalikasan is a legal remedy for situations where the constitutional right to “a balanced and health ecology” is violated.  The petitioners ask that the country’s roads be split down the middle with half made available for non-motorized transportation, sidewalks, edible gardens, and all-weather bike lanes and the other half made available for organized motor transport.  The petition argues that it is unfair that roads currently are used by only the 2 percent of the population that owns motor vehicles.  It also asks for a 50% reduction in fuel use by the Philippine government as well as an order requiring government officials to use public transport half of the time.  

Last week Singapore’s environment minister proposed a new law that would authorize the government to fine foreign firms whose activities generate toxic haze that reaches the island nation.  Eight months ago smoke from illegal slash and burn operations in Indonesia to clear land for palm oil plantations caused record air pollution in Singapore.  Singapore officials previously had promised to crack down on any Singapore firms involved in actions that generated the toxic haze.  The new legislation, however, also would apply to foreign firms.  It would authorize criminal fines of up to S$300,000 ($230,000 U.S.) as well as citizen suits to enable recoveries by private individuals harmed by such pollution. Jeremy Grant & Ben Bland, Singapore Eyes Fines for Toxic Haze from Abroad, Financial Times, Feb. 20, 2014. It is unclear how Singapore could enforce such sanctions against firms located outside its jurisdiction.

On February 18 President Obama directed federal agencies to develop new fuel economy standards for medium and heavy-duty commercial trucks.  The standards, which are to be issued by March 2016, are part of the President’s Climate Initiative to reduce emissions of greenhouse gases. Representatives of large truck manufacturers said that they should be able to build trucks that will meet tougher fuel-economy standards, though a trade association of independent truckers expressed concern that the standards will raise the costs of trucks. The American Trucking Associations, a trade association for the trucking industry, expressed cautious support for the measures.

On February 19 more than one hundred cubic meters of highly radioactive wastewater leaked from the damaged Fukushima Daiichi nuclear facility.  The leak, which came from a wastewater storage tank, spilled the water onto the ground.  It was plugged six hours after it was discovered. Japan reported the leak to the International Atomic Energy Agency (IAEA) whose experts concluded that it posed no danger to the public.  The IAEA advised that the soil contaminated by the leak should be removed to prevent further migration through rainwater and groundwater.

Nissan has agreed to supply the government of Bhutan with hundreds of its Leaf electric vehicles and to build a network of electric vehicle (EV) charging stations in the country.  The government of Bhutan has pledged to make the country a “zero-emissions pioneer” as part of its pursuit of “gross national happiness.” Bhutan Prime Minister Tshering Tobgay also has contacted Tesla Motors about selling its electric vehicles to Bhutan.  Henry Foy, Nissan Deal to Supply Electric Cars to Bhutan, Financial Times, Feb. 22/23, 2014, at 13.

On February 17 the University of Maryland Francis King Carey School of Law hosted the first system-wide Environmental Summit.  The Summit brought together scores of professors who work on environmental issues at multiple schools throughout the University of Maryland System.  Organized by Maryland law professors Mike Pappas and Rena Steinzor, the Summit featured “lightning rounds” where professors described their research interests and potential projects for multi-disciplinary collaboration.   Jay Perman, President of the University of Maryland Baltimore, endorsed greater collaboration among campuses, as reflected in the new masters of law program to be offered in College Park with environmental law as one of four focus areas.  Maryland Chancellor “Brit” Kirwin gave a keynote address where he described his system-wide sustainability initiative and called for more joint appointments and cross-listed courses in the environmental area.  Kirwin also praised the law school’s new masters program and proposed that system-wide Environmental Summits be held every year.

On February 18 I gave a lecture to a class at the University of Maryland School of Public Health in College Park. The lecture focused on four case studies of how the administrative process addressed public health problems - the removal of lead additives from gasoline, efforts to phase out the remaining uses of asbestos, regulation of ground-level ozone, and regulation of emissions of greenhouse gases.

Sochi Olympics, London's Chinese Electric Taxis, WTO Complaint on Indian Solar Regs, GMO Corn in EU, Bruce RIch & Cruden Letter (by Bob Percival)

The Russian environmental group Environmental Watch of the North Caucasus has published an 84-page report, “Sochi 2014: Ten Years Without Respect for Law,” that details environmental damage caused by the Sochi Olympics. The report discusses the various environmental mitigation measures promised to offset the damage to protected forests and marshlands caused by construction of the Olympic facilities and it concludes that the mitigation promises have not been fulfilled.  The principal author of the report is Dr. Suren Ghazaryan, who has fled Russia for exile in Estonia. For more information see the website of Environmental Watch at http://www.ewnc.org/node/13583 (in Russian). Last week a Russian court ordered environmentalist Evgeny Vitishko to spend three years in a prison labor colony on what are viewed as trumped up charges of vandalism.  Last week plans for an environmental protest at the Sochi Olympics were dropped when Russian officials agreed on Thursday to meet with members of Environmental Watch on condition that the group withdraw its request for a permit to conduct a demonstration at a protest zone seven miles away from the Olympic venues.

Last Tuesday China automaker BYD launched a fleet of 20 all-electric taxis in London.  The taxis, which will be operated by taxi company Thriev, have a range of 186 miles between charges.  London Mayor Boris Johnson has decreed that all taxis in the city must be zero-emission vehicles by 2018.  Two months ago BYD, which is 10% owned by U.S. investor Warren Buffet, delivered London’s first all-electric buses. Nissan and the London Taxi Company, which operates the city’s iconic fleet of “black cabs,” also are developing electric vehicles to meet the 2018 deadline.  Henry Foy, Buffet-Backed BYD Behind First All-Electric London Cab Fleet, Financial Times, Feb. 10, 2014.

Last Monday the U.S. filed a complaint with the World Trade Organization (WTO) over regulations that require that components used in solar energy projects in India be produced locally.  The U.S. argues that the regulations are unfair trade practices.  Indian officials argue that because the power is supplied to state-owned distributors of electricity the regulations are permissible government procurement rules.  India is seeking to expand its solar capacity to 20 gigawatts by 2022, which would increase solar’s share of the country’s energy production from from 1% today 

to 5%. On Thursday the Ivanpah Solar Electric Generating Station, the world’s largest solar energy project, opened in California’s Mojave Desert.  The project, which is partially owned by Google, uses 350,000 mirrors to focus the sun’s energy on boilers atop towers, creating steam to drive turbines designed to generate 377MW of electricity.  It has raised some concerns among bird lovers because the intense heat it generates has caused bird deaths.  Cassandra Sweet, The $2.2 billion Bird-Scorching Solar Project, Wall St. J., Feb. 12, 2014. The project is the world’s largest solar energy project currently under construction.

The government of China is setting up a 10 billion RMB ($1.6 billion) fund to help Chinese companies reduce their emissions of air pollutants.  Chinese premier Li Keqiang warned other government officials last Wednesday that it will take considerable time to tackle China’s formidable air pollution problems.  “China’s air pollution accumulated over the long-term, so we must be fully aware of the grim task of prevention work and persevere without flagging,” Li said. Lucy Hornby, China Offers Financial Incentives to Clean Up Pollution, Financial Times, Feb. 13, 2014.  It is likely that China will have to reduce dramatically its use of coal if it is to make substantial strides in reducing air pollution.

On February 11 the European Union (EU) failed to block approval of a genetically modified corn product called Pioneer 1507 that U.S. companies Dupont Pioneer and Dow Chemical have been seeking approval to market in the EU since 2001.  Despite a European Parliament resolution opposing approval that was adopted last month and the opposition of 19 of the 28 EU members, Spain and Britain were able to muster enough votes in the weighted voting formula to stop the disapproval effort.  If the European Commission now approves the product as expected, it will be only the third genetically modified crop approved for cultivation in the EU.  European Health Commissioner Tonio Borg is pushing for new rules to allow EU member states to decide individually on whether or not to approve cultivation of GMO products approved by the EU.  Stephen Castle, Modified Corn A Step Closer to Approval in Europe, N.Y. Times, Feb. 12, 2014, at B3.  

The U.S. company Chik-fil-A announced on February 11 that it no longer will use meat from chickens raised with antibiotics.  This confirms a trend of major U.S. companies eschewing meat products raised with antibiotics.  Restaurants chains Chipolte and Panera previously made similar commitments.  Subway and Kraft recently announced that they would no longer use certain chemicals in their products in order to appeal to health-conscious consumers.  Stephanie Strom, Chick-fil-A Commits to Stop Sales of Poultry Raised with Antibiotics, N.Y. Times, Feb. 12, 2014, at B3.

Bruce Rich, former director of international programs for the Environmental Defense Fund, was a guest speaker in my Global Environmental Law seminar on February 12.  Bruce, who has long been the leading environmental critic of the World Bank, discussed his new book Foreclosing the Future that updates his previous classic work Mortgaging the Earth.  Both books are highly critical of the World Bank’s funding of development projects that damage the environment.  While his latest book acknowledges that the Bank has made some improvements in its policies, Bruce expressed disappointment that bank president Jim Yong Kim had not lived up to the high expectations that greeted his appointment.  After class a group of students joined Bruce and I for drinks and dinner.

This week I wrote a letter urging the Senate to confirm ELI President John Cruden, President Obama’s nominee to become Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.  I circulated a draft of the letter on Tuesday that has now attracted a remarkable 94 signatures from environmental law professors.  The letter will be delivered to the Senate Judiciary Committee on Monday.  John Cruden’s hearing has been set for February 25.

SCOTUSBlog Symposium, ALI Conference, China Emissions Disclosure Regulations, Australian Shark Kill, Polish Energy Plans, Colombian Coal Dispute (by Bob Percival)

This week the SCOTUSBlog held a symposium on the greenhouse gas (GHG) cases that the U.S. Supreme Court will hear on February 24.  The cases involve challenges by industry groups and several states to EPA’s regulation of GHG emissions from stationary sources.   The SCOTUSBlog invited me to contribute a piece to the symposium. My contribution, “The Climate Wars Return to  the Court as a Narrower Skirmish,” was published on February 6. It is available online at: http://www.scotusblog.com/2014/02/symposium-the-climate-wars-return-to-the-court-as-a-narrower-skirmish/  I emphasized that because the Court had refused to hear challenges to EPA’s Endangerment Finding and Tailpipe Rule the case now does not involve the question whether GHG emissions will be regulated, but rather only what permitting requirements will apply to them.

On February 6 I spoke on a panel about environmental cases before the Supreme Court at the 44th Annual Advanced ALI CLE conference on Environmental Law.  The conference was held at the Washington Plaza Hotel in D.C.  I opened the panel by summarizing four environmental cases the Court decided during its 2012-13 Term - two Clean Water Act cases and two regulatory takings cases.  Also on the panel was John Cruden, president of the Environmental Law Institute who President Obama has nominated to head the Environment and Natural Resources Division of the U.S. Department of Justice.  John discussed the two Clean Air Act cases before the Court this Term. I then discussed the CERCLA case the Court will hear and some non-environmental cases that may have implications for environmental law.  I agreed that EPA is likely to win EME Homer City case involving a challenge to its cross-state air pollution rule, that the GHG regulation cases are likely to be close, and that the Court likely will reverse the 4th Circuit’s decision in the CTS Corp. case by holding that CERCLA’s preemption of state statutes of limitations does not extend to statutes of repose.  I noted that the Court remains as sharply divided as ever on issues such as environmental standing and regulatory takings.

China has taken a giant step toward providing the public with real time information about pollution from individual factories. Since January 1 the Chinese government has required 15,000 factories to provide the public with real time data on their emissions of air and water pollution.  While some provinces have yet to implement the new disclosure requirements, data that are available from Hebei province, which forms a ring around Beijing, show many factories blatantly exceeding existing emissions limits.  Environmentalists are hailing the government’s move toward greater transparency as one of the most significant developments in Chinese environmental policy in years. Simon Penyer, Advocates Hail Action by China on Air Pollution, Washington Post, Feb. 3, 2014. 

Environmental protests broke out across Australia last week in response to a decision by the government of Western Australia to kill great white, tiger and bull sharks in order to protect swimmers.  The policy was adopted in response to the latest case of a swimmer being killed by a shark.  Seven people have been killed by sharks in Western Australian waters during the last seven years.  The government of South Africa has protested the Australian policy, noting that it uses shark nets to protect swimmers from these migratory species in South African waters.  Australian Environment Minister Greg Hunt exempted Western Australia from national conservation laws in order to permit the shark cull, which seems unlikely to be very effective at anything other than making government officials look macho.  This bizarre news reminds me that the week before the September 11, 2001 terrorist attacks on the U.S., then-Governor of Virginia Jim Gilmore appointed a special governor’s commission to examine what to do about shark attacks on swimmers in Virginia waters, an example of how skewed public perceptions of risk were at the time.

On February 5 the Polish environment ministry announced a new plan to speed up development of shale gas resources in that country.  Last year Marathon Oil, Talisman Energy and ExxonMobil all pulled out of Polish shale gas development projects, citing excessive red tape.  They particularly objected to requirements that NOKE, a state-owned energy company, had to be involved in all projects.  The new regulations do not include such a requirement.  Poland’s economic ministry also has announced plans to build two nuclear power plants, one of which would start producing power in 2024.  Despite considerable skepticism about Poland’s ability to attract investment in expensive nuclear construction projects, Poland is trying to diversify its energy mix, which now is heavily dependent upon coal. A Different Energiewende, The Economist, Feb. 8, 2014, at p. 52.

The government of Colombia has ordered a temporary halt in coal exports from a mine developed by the Drummond Company, which is based in Alabama. The order was issued as a sanction for the company’s failure to install equipment to prevent coal spillage into the Caribbean at the port of Santa Marta where Drummond’s export terminal is located.  The company was ordered to install the equipment in 2007, but it has taken its time to complete the $360 million project.  Sara Schaefer Muñoz, Drummond and Colombia Both Suffer in Clash, Wall St. J., Feb. 7, 2014. Meanwhile a leak from a closed Duke Energy facility in North Carolina has spilled an estimated 82,000 tons of wet coal ash into the Dan River, turning it black and gray. For years EPA has been considering whether to regulate storage of coal ash with its latest promise being to make a decision by the end of the year. Valerie Bauerlein & Cassandra Sweet, Spill Heightens Coal-Ash Concerns, Wall St. J., Feb. 7, 2014, at A5.

World Issues Forum, Shell Cancels Arctic Drilling, Keystone XL EIS, State of Union, Great Barrier Reef (by Bob Percival)

On January 29 I gave a lecture on “The Global Environmental Challenge of China” at the World Issues Forum of the Fairhaven College of Interdisciplinary Studies at Western Washington University in Bellingham, Washington.  The audience was terrific with a full auditorium and an overflow crowd sitting on the floor.  The lecture was videotaped and it is now available online on the web at: http://vimeo.com/85478018.  In the morning of January 29 I also spoke about the work of environmental NGOs and climate change to a seminar on Environmental Justice and Climate Change. I really enjoyed meeting the faculty and students from Fairhaven and I am particularly grateful for the hospitality of my former student, Professor Julie Helling, who hosted my visit.  I flew back to D.C. from Seattle on Thursday night, surrounded by hordes of Seahawks fans, and taught two classes on Friday.

On January 30 the Royal Dutch Shell corporation announced that it will not seek to drill for oil in Arctic waters off the coast of Alaska during 2014.  Shell CEO Ben van Beurden cited the uncertainty created by the Ninth Circuit’s January 22 ruling that the environmental impact statement associated with the government’s Arctic leasing program had been inadequate.  The decision also is consistent with a trend of cutbacks in massive capital spending projects by big oil.

On January 31 the U.S. State Department released its final supplemental environmental impact statement on construction of the Keystone XL pipeline.  The EIS concludes that the pipeline will not significantly contribute to greenhouse gas emissions because the tar sands oil that it will transport, although more carbon-intensive than normal, will be used even if the pipeline is not built. A copy of the EIS is available online at: http://keystonepipeline-xl.state.gov/archive/dos_docs/feis/.  The State Department will hold a 30-day public comment period on the EIS beginning on February 5.  Other federal agencies will have 90 days to comment.  Secretary of State John Kerry will then make a decision on the project, which is expected to occur sometime during summer 2014. Other agencies then will have 15 days to object to his decision.  If any other agency objects, the final decision will be made by President Obama.  EPA previously criticized the State Department for underestimating the environmental effects of the project.

In his State of the Union Address to Congress on January 23, President Obama reaffirmed his support for an “all-of-the-above energy strategy’.  He described natural gas as “the bridge fuel that can power our economy with less of the carbon pollution that causes climate change.”  The President pledged that his “administration will keep working with the industry to sustain production and job growth while strengthening protection of our air, our water, and our communities.” He annunced that he will “use my authority to protect more of our pristine federal lands for future generations.”  Noting that the U.S. is “becoming a global leader in solar,” President Obama called on Congress to adopt “a smarter tax policy that stops giving $4 billion a year to fossil fuel industries that don’t need it, so that we can invest more in fuels of the future that do.”  He pledged to set tougher fuel economy standards for trucks.

On climate change the President stated:

    “Taken together, our energy policy is creating jobs and leading to the past eight years, the United States has reduced our total carbon pollution more than any other nation on Earth.  But we have to act with more urgency – because a changing climate is already harming western communities struggling with drought, and coastal cities dealing with floods.  That’s why I directed my administration to work with states, utilities, and others to set new standards on the amount of carbon pollution our power plants are allowed to dump into the air.  The shift to a cleaner energy economy won’t happen overnight, and it will require tough choices along the way.  But the debate is settled.  Climate change is a fact.  And when our children’s children look us in the eye and ask if we did all we could to leave them a safer, more stable world, with new sources of energy, I want us to be able to say yes, we did.”

On January 31 the Great Barrier Reef Marine Park Authority approved plans to dump up to three million cubic meters of dredge spoil near the Great Barrier Reef.  The dredging will be undertaken to expand the nearby Abbot Point port coal terminal that will facilitate increased Australian coal exports to India.  Environmental opponents of the project argued that the wastes shouldbe disposed of on land.

In my blog post of January 19 I mentioned some anti-environmental provisions in the budget legislation that President Obama had signed into law on January 17.  The 2014 Consolidated Appropriations Act also contains some pro-environmental measures.  It provides that “it is the policy of the United States to oppose any loan, grant, strategy or policy for construction of large hydroelectric dams” (defined as those larger than 15 meters high).  EcoAmericas reports that the law probably will not stop extensive construction of dams in the Amazon and other parts of South America because they are financed by other sources including Brazil and China.  The law also requires U.S. directors of the World Bank and the Inter-American Development Bank to report on implementation of a 2010 agreement to provide $154.5 million in compensation to 3,500 residents of Guatemala’s Chixoy River Basin who were displaced when the Chixoy Dam was built there in the 1980s. Steven Ambrus, U.S. Signals Opposition to Large Hydro Dams, EcoAmericas, Jan. 2014, at 3.

EU's New Climate Goals, Green Tea Coalition, Court Deals Blow to Arctic Drilling, China's Export Pollution, Tesla to Charge Same Price in China (by Bob Percival)

On January 22 the European Commission unveiled a new set of energy and climate goals through the year 2030.  The goals mandate a 40% reduction in greenhouse gas (GHG) emissions over 1990 levels with 27% of energy coming from renewables.  However, in a victory for industry groups and the UK, the targets leave it up to individual countries to decide how to achieve them rather than specifying increases in particular renewables.  The Commission also expressed concern over high energy prices in the EU, citing the need to maintain “mainstream competitiveness.”  It also rejected calls for EU-wide regulation of hydraulic fracturing in favor of voluntary guidelines. Christian Oliver & Pilita Clark, EU Sets Out New Climate Change Goals, Financial Times, Jan. 22, 2014.

Efforts to roll back state renewable energy measures in the U.S. are meeting fierce pushback from an unusual coalition of libertarian conservatives and pro-environment liberals.  These groups are opposing efforts by the right-wing American Legislative Exchange Council (ALEC) to get state legislatures to enact measures requiring special charges for those who install solar panels.  In Arizona former Congressman Barry Goldwater, Jr. worked with environmentalists to help reduce a planned $100/month charge for those using rooftop solar panels to $5/month. In Georgia the Sierra Club has teamed up with a Tea Party activist to form the “Green Tea Coalition”.  The Virginia General Assembly is moving to repeal a special charge on those who use hybrid vehicles.  John Schwartz, Fissures Emerge in G.O.P. as Some Conservatives Embrace Renewable Energy, N.Y. Times, Jan. 26, 2014, at A13.

On January 22 a divided panel of the U.S. Court of Appeals for the Ninth Circuit reversed a decision that had rejected challenges to the environmental impact statement (EIS) for oil and gas leasing in the Chukchi Sea off the northern coast of Alaska.  The court’s decision is available online at: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/24/12-35287%20web%20corrected%202.pdf.  The court held that it was arbitrary and capricious for the Interior Department to rely on an estimate of only one billion barrels of recoverable oil in assessing the likely environmental impact of leasing 30 million acres of the continental shelf. The groups challenging the EIS now may move for an order canceling the existing leases, which would be a huge setback to efforts by Shell Oil to begin drilling in Alaskan Arctic waters.

Last week the Ninth Circuit also rejected a petition for rehearing en banc of its Rocky Mountain Farmers Union decision upholding California’s Low Carbon Fuel Standard against claims that it discriminates against interstate commerce.  See http://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/22/12-15131.pdf. Six judges dissented from the decision not to rehear the case.  It is likely that the plaintiffs will now seek review of the decision by the U.S. Supreme Court.

A study recent published in the Proceedings of the National Academy of Sciences finds transboundary air pollution caused by Chinese production of goods for export contributes between 12% and 24% of sulfate pollution in the western U.S.  The study finds that outsourcing of manufacturing to China may have improved air quality in the eastern U.S., while actually reducing air quality in the western U.S.  A copy of the study, Jintai Lin, et al., China’s International Trade and Air Pollution in the United States, is available online at: http://www.pnas.org/content/early/2014/01/16/1312860111.  Fours years ago, China’s representatives at global climate change negotiations argued that countries importing goods from China should bear responsibility for the greenhouse emissions their production generates, but they quickly abandoned that argument fearing it could be used to support climate tariffs.

Tesla announced last week that it has adopted a policy of charging the same pre-tax price for its all-electric vehicles in every country of the world.  This should provide a huge boost to Tesla sales in China, where luxury auto imports often cost more than twice the price in the U.S.  While China imposes heavy taxes on vehicle imports, most auto manufacturers still charge much higher pre-tax prices in China.  In a press release Tesla stated: “"If we were to follow standard industry practice, we could get away with charging twice as much for the Model S in China as we do in the US," but it announced that it would not do so.  Due to taxes of $36,700 per vehicle imposed by the Chinese government and transportation costs of $3,600, Tesla’s lowest price model still will sell for $121,370 in China, compared with $81,070 in the U.S. 

Last Thursday I presented a Legal Theory Workshop at Maryland on “The Role of Civil Society in Environmental Governance in the U.S. and China.”  I based the presentation on an article I have co-authored with Professor Zhao Huiyu of Shanghai Jiaotong University.  The article will be published in a symposium issue of the Duke Environmental Law and Policy Forum.  Today I am in Vancouver, B.C., en route to Bellingham, Washington.  On Wednesday I will deliver a World Issues Forum lecture on “The Global Environmental Challenge of China” at the Fairhaven College of Interdisciplinary Studies of Western Washington University.  An abstract of my lecture is available online at: http://www.wwu.edu/Fairhaven/news/worldissuesforum/14winter.shtml

Company Declares Bankruptcy after W.Va. Spill, Anti-Environment Riders in Budget Bill, Leaked IPCC Draft, Iranian Minister's Breakthrough Environment Speech Canceled (by Bob Percival)

Faced with lawsuits for the chemical spill that shut down water supplies for more than 300,000 people in the Charleston, West Virginia area, Freedom Industries, the company that owned the ruptured tank that caused the spill, filed for Chapter 11 bankruptcy on January 17.  The bankruptcy filing makes it unlikely that the company that was the source of the spill will be required to fully compensate victims of its harm.  Lawsuits also have been filed against West Virginia-American Water Co. for failure to prevent the chemicals from entering its water supply.  An article in today’s New York Times explores the lax state of environmental regulation in West Virginia that permitted hazardous chemicals to be stored in a poorly monitored tank employing ancient technology (rivets instead of welds) located in close proximity to the main water intake for Charleston.  Trip Gabriel, Michael Wines & Coral Davenport, Chemical Spill Muddies Picture In a State Wary of Regulations, N.Y. Times, Jan. 19, 2014, at A1.  The article notes that the spill has not tempered anti-EPA rhetoric by West Virginia’s elected officials, who continued to rail last week against overzealous federal regulators.  It notes that Randy C. Huffman, West Virginia’s secretary of environmental protection, boasted in May 2009 that his department had brought an enforcement action against PPG Industries for illegally dumping mercury only in order to bar two environmental groups from bringing citizen suits against the company.

Last week U.S. House and Senate negotiators unveiled a $1.1 trillion appropriations bill that won bipartisan support to avoid another budget crisis.  The 1,582-page bill was unveiled on Monday night, passed the House by a vote of 359-67 on Wednesday, and the Senate on Thursday by a vote of 72-26.  President Obama then signed the measure into law.  The legislation contains some anti-environmental provisions inserted at the insistence of House Republicans.  It temporarily blocks EPA and the U.S. Army Corps of Engineers from spending money on the development of new rules related to mountaintop mining, and it temporarily bars expenditures on the enforcement of existing enhanced efficiency standards for light bulbs that effectively ban incandescents.  The latter may have little effect because most major suppliers already have discontinued the manufacture of incandescents and retailers are likely to continue to phase them out of their supply chains.  The budget legislation also tries to revive support by the U.S. Export-Import Bank and the Overseas Private Investment Corporation for construction of coal-fired power plants in countries such as India and Vietnam, a policy the Bank previously had repudiated.

A leaked draft of a report by the Intergovernmental Panel on Climate Change warns that 15 more years of failure to control emissions of greenhouse gases will make the climate change problem impossible to combat with current technologies.  The report finds that technologies would have to be developed to remove greenhouse gases from the atmosphere and store them underground in order to preserve the livability of the planet.  It decried the fact that despite increasingly alarming evidence of climate change more money still is spent each year to subsidize the use of fossil fuels than to promote a shift to cleaner energy sources. Justin Gillis, U.N. Says Lag in Confronting Climate Woes Will Be Costly, New York Times, Jan. 16, 2014.

Masoumeh Ebtekar, head of Iran’s Department of Environment who is the country’s leading female politician, had planned to speak at the country’s Friday Prayers on why environmental protection is a religious imperative under Islam.  The speech would have represented a major breakthrough at the Friday Prayers for women, moderates and the environment, who are disfavored by the fierce conservatives who run the weekly event.  However, Ebtekar reported on her Twitter feed (https://twitter.com/ebtekarm) that at the last minute the speech “was canceled for reasons that [I} do not know.“  The Iranian Student News Agency (ISNA) subsequently has published a text of the speech Ebtekar had planned to deliver (see http://isna.ir/fa/news/92102816069/متن-سخنرانی-لغو-شده-ابتکار-در-پیش-خطبه-نمازجمعه).  In 1979, at the age of 19, Ebtekar served as the spokesperson for Iranian students who stormed the U.S. embassy in Tehran and held its personnel hostages for 444 days. She now is considered a leading moderate and reformer in the Rouhani administration.

Our spring semester classes started on Monday January 13.  This semester I am teaching my Global Environmental Law seminar and first year Constitutional Law.  I have 30 students in my seminar and 66 students in my Constitutional Law class.  Last Monday a group of 15 first-year students from my Con Law class joined me at the U.S. Supreme Court to watch the oral argument in NLRB v. Canning, the case involving the constitutionality of President Obama’s recess appointments to the National Labor Relations Board.  The argument was one of the most interesting that I have seen with the Justices struggling with basic issues of constitutional law that they had not previously addressed.  After the argument, the students joined me for lunch at my home on Capital Hill.  Next weekend I am traveling to Seattle and Vancouver, British Columbia, before delivering a World Issues Forum Lecture at Fairhaven College of Interdisciplinary Studies in Bellingham, Washington (http://www.wwu.edu/Fairhaven/news/worldissuesforum/14winter.shtml). 

Japanese Antarctic Whaling Protested, W.Va. Oil Spill, China Destroys Ivory, BP Settlement Upheld, U.S. Supreme Court to Hear CERCLA Case (by Bob Percival)

On January 6 the Sea Shepherd organization released video taken from its protest vessel the Steve Irwin that it claimed shows Japanese whalers illegally killing whales in a protected area off the coast of Antarctica.  The video showed protected minke whales on the deck of the factory ship Nishin Maru.  After protests by Sea Shepherd and the government of New Zealand, which administers the Ross Dependency where the whaling allegedly occurred, the Japanese whalers relocated 400 miles away from the protected area.  Last year the International Court of Justice heard a lawsuit brought by New Zealand claiming that Japan is violating the ban on commercial whaling under the guise of “scientific research.”  The Court is expected to issue a ruling in the case this year.

Hundreds of thousands of residents of West Virginia were without water as a result of a toxic chemical spill in the Elk River that contaminated public water supplies in Charleston and nine surrounding counties.  The spill was caused when a tank containing thousands of gallons of a chemical used in coal processing ruptured on the morning of January 9.  Little is known about the human health effects of exposure to the chemical, 4-methylcyclohexane methanol.  Freedom Industries, where the leak occurred, apparently did not inform authorities about the spill until its contamination of the Elk River had spread to Charleston’s public water supply.  Having contaminated the water distribution system, the chemical will need to be flushed from the entire system, which may take considerable time.

On January 6 Chinese authorities made a public display of destroying six tons of confiscated ivory in Dongguan, China.  The destruction of the ivory was highly publicized to respond to criticism that Chinese consumer demand for ivory has fueled illegal elephant poaching around the world.  Wildlife conservation officials had high praise for the move as a sign that the Chinese government may become more aggressive in enforcing global agreements to curb the ivory trade. Bettina Wassener, Destruction of Ivory by China Wins Praise, N.Y. Times, January 7, 2013, at A4.

On January 10 the U.S. Court of Appeals for the Fifth Circuit upheld the settlement BP had reached for the 2010 oil spill in the Gulf of Mexico.  By a vote of 2-1 the court rejected BP’s effort to reinterpret the settlement to restrict the parties eligible to receive compensation under it.  Judge Emilio Garza dissented from the majority’s conclusion that BP had to bear the consequences of its broad settlement even if it meant that compensation is paid to some who lack proof that the spill actually caused them harm.

On Friday the U.S. Supreme Court announced that it will hear a case involving an unusual provision of the U.S. “Superfund” statute (the Comprehensive Environmental Response, Compensation and Liability Act, or “CERCLA”).  Section 309 preempts state law to require that state statutes of limitations are tolled until a plaintiff discovers that he has been the victim of exposure to a hazardous substance.  The novel question CTS Corp. v. Waldburger is whether Section 309’s preemption also applies to statutes of repose.  Statutes of repose are broader than statutes of limitation because they bar lawsuits after a certain period of time has passed from a date unrelated to the act causing injury.  Citing CERCLA’s broad remedial purposes, the Fourth Circuit held that North Carolina residents who did not discover chemical contamination of their wellwater until after a statute of repose had expired could still sue the company responsible for it.

On Wednesday afternoon I gave a talk on climate change to the Public Affairs Forum at Roland Park Place, a retirement community in Baltimore.  I was delighted to have a sophisticated and enthusiastic audience that included my host Bill Nagle, formerly of the World Resources Institute, my former colleague Clinton Bamberger, Richard Springer, who as a State Department official helped negotiate the Convention on Long-Range Transboundary Air Pollution, and Janet Gerber, who established an environmental litigation fund for Maryland’s Environmental Law Clinic.  On Wednesday night I had dinner with my old friend Dan Guttman who is back in the U.S. this month before resuming his teaching and public interest policy work in China next month.