China’s state-owned oil company Cnooc Ltd. announced last week that it was offering $15.1 billion to acquire Canadian oil company Nexen. Nexen owns oil and shale gas properties in Alberta and leases for offshore oil drilling in the Gulf of Mexico. Because of the U.S. properties Nexen owns, U.S. regulators are likely to have some say in the transaction. Senator Charles Schumer argued that this leverage should be used to level the playing field by making it easier for U.S. companies to acquire companies in China. The deal is seen as a reflection of China’s growing global energy needs and some observers believe that it will be only the first in a wave of acquisitions by Chinese oil companies. The International Energy Agency forecasts that China may need net oil imports of 12 million barrels per day by the year 2035.
Three engineers for the Norte Energia Company, which is constructing the controversial Belo Monte dam in Brazil’s Amazon, were held last week by protesters from the Juruna and Arara tribes. The 11,233MW dam, which would be the third largest in the world, is being built on the Xingu River in Brazil. The engineers had met with tribal leaders to respond to their complaints about dislocations caused by the construction. The tribes apparently did not like what the engineers told them so they confined their visitors to the village in protest. Paulo Winterstein, Tribes Hold Engineers of Dam in Brazil, Wall St. J., July 26, 2012, at A8.
Anti-nuclear protests appear to be growing in Japan in the wake of the Fukushima Daichi nuclear accident, but they have yet to generate fundamental changes in Japanese politics. Yuka Hayashi & Toko Sekiguchi, Japan Antinuclear Movement Faces Tests in Poll, Rally, Wall St J., July 28-29, 2012, at A8. Tetsunari Iida, a former government employee running for provincial governor position was defeated on Sunday despite his pledge to scrap a nuclear power plant. His successful opponent, however, was forced to advocate “suspension” of operations for the time being in response to the antinuclear campaign. A group of retired engineers is pushing a plan to have remediation of the damaged reactors conducted by an independent team of older workers, claiming that Tokyo Electric has lost all credibility with its cleanup operations. Mure Dickie, Japan’s Veterans FIght to Relieve Young Workers of Nuclear Risk, FInancial Times, July 28-29, 2012, at 6.
A violent protest by residents of Qidong China has led the local government to abandon plans for a 70-mile sewage pipeline that would have discharged into the ocean near the city. A large crowd of protesters had stormed a local government building and overturned cars out of anger over the project that would have served a paper mill owned by a Japanese company. While such protests seem to be making more people confident that they can effect change in China, it would be preferable if ill-advised projects could be blocked by the decisions of an independent judiciary ruling on the merits, rather than as a political response to mob pressure.
Last Tuesday I gave a morning-long lecture to a group of nearly 20 Chinese judges who are in Vermont for part of a judicial training course run by Vermont Law School. The judges come from all parts of China and all levels of the Chinese judiciary. The group was very active in asking questions about the operation of the U.S. legal system. Next Sunday I will be returning to China on a field trip with some of the students from my Comparative China/U.S. Environmental Law course.
Monday, July 30, 2012
Monday, July 23, 2012
U.S. Ratification of Law of Sea Treaty Blocked Again, D.C. Circuit Upholds EPA NOX NAAQS, Vermont China Course (by Bob Percival)
Despite another concerted effort to have the U.S. Senate ratify the Law of the Sea Treaty, conservative Republicans announced last week that they had enough votes to block ratification. Support for ratification includes an unusually broad coalition of environmental, business, military and government leaders who argue that it will give the U.S. more clout in resolving disputes over Arctic resources and over control of the South China Sea. As noted in previous blog posts, the U.S. Chamber of Commerce has sponsored full page ads supporting ratification, perhaps the only time that they have supported environmental interests, but a small group of conservatives who argue that any foreign treaty infringes on U.S. sovereignty has vehemently opposed ratification for decades. Senator Jim Demint (R-S.C.) announced that he had obtained commitments from four more Republicans to vote against ratification, bringing the number of opponents to 34, enough to prevent the necessary two-thirds vote for ratification in the Senate. The new commitments to vote against ratification came from Republican Senators Mike Johanns of Nebraska, Kelly Ayotte of New Hampshire, Rob Portman of Ohio, and Johnny Isakkson of Georgia. In a subsequent interview with Phyllis Schaffly’s Eagle Forum, Demint essentially agreed that Republicans should never support ratification of any treaty.
On July 17 the U.S. Court of Appeals for the D.C. Circuit rejected industry challenges to EPA’s new 1-hour national ambient air quality standard (NAAQS) for nitrogen oxide (NO2). The court unanimously ruled that EPA had not acted arbitrarily or capriciously in promulgating the standard, which was found to be consistent with the Clean Air Act. The decision’s language bluntly rebuked the petitioners for some of their attacks on the agency’s action, which the court implied were rather far-fetched.
Today I started teaching a course in Comparative China/U.S. Environmental Law at Vermont Law School. I am staying in a beautiful cabin near Barnard, Vermont where I can really enjoy nature in between classes. The course will meet for two weeks and then some of my students will accompany me on a field trip to China. I have long wanted to teach in Vermont’s wonderful summer program and I am delighted that I finally am able to make it happen.
On July 17 the U.S. Court of Appeals for the D.C. Circuit rejected industry challenges to EPA’s new 1-hour national ambient air quality standard (NAAQS) for nitrogen oxide (NO2). The court unanimously ruled that EPA had not acted arbitrarily or capriciously in promulgating the standard, which was found to be consistent with the Clean Air Act. The decision’s language bluntly rebuked the petitioners for some of their attacks on the agency’s action, which the court implied were rather far-fetched.
Today I started teaching a course in Comparative China/U.S. Environmental Law at Vermont Law School. I am staying in a beautiful cabin near Barnard, Vermont where I can really enjoy nature in between classes. The course will meet for two weeks and then some of my students will accompany me on a field trip to China. I have long wanted to teach in Vermont’s wonderful summer program and I am delighted that I finally am able to make it happen.
Monday, July 16, 2012
Global Warming, Arctic Drilling, Texas Public Trust Decision, Kenyan Power Line (by Bob Percival)
Indications of the impact of global warming continue to become manifest. As of this week more than 24,000 daily high temperature records have been broken so far this year. The first half of the year has been the hottest on record.
Last week ten environmental groups filed suit in federal court in Alaska to block offshore Arctic oil drilling by Shell. Shell has obtained the necessary permits for exploratory drilling this summer, but the environmental groups argue that the Interior Department underestimated the risks of an oil spill in the fragile Arctic environment. Shell has asked EPA to ease the emissions requirements of the air pollution permit it had been granted for its drilling vessels in January 2012. Last week BP announced that it was shelving its proposed Liberty project to drill in the Beaufort Sea offshore of Alaska based on its conclusion that it would be too costly to meet stricter environmental standards adopted in the wake of the Deepwater Horizon oil spill.
Last week Texas district court judge Gisela Triana ruled that the “public trust” doctrine that dates from ancient Roman law applies to the atmosphere and is not limited to water, rejecting an argument by the Texas Commission on Environmental Quality. However, she declined to compel the Commission to write rules to control greenhouse gas (GHG) emissions, noting that Texas is involved in pending litigation challenging EPA’s efforts to regulate such emissions. This is the first modest success in the public trust climate lawsuits filed in 11 states that have been coordinated by the Oregon nonprofit group Our Children’s Trust.
The World Bank has voted to approve funding for a transmission line that would enable Kenya to receive power from the controversial Gilgel Gibe II dam in southern Ethiopia. Several local and international environmental groups had lobbied the bank not to provide funding for the project because of the environmental damage the dam would cause.
I spent the weekend in Miami with my son where we attended the three weekend games between the Washington National and Miami Marlins in the Marlins new stadium. It was gratifying to see how many Nationals fan were at the games and also to have nearly 30,000 people at each game in the stadium, which seems to have revitalized interest in baseball in Miami. In past years the old stadium would be virtually empty and there would be only five or six Nats fans at the Miami games. Having a stadium with a retractable roof solves Miami’s problem of frequent summer rains, though baseball is more enjoyable when played outdoors. On Saturday several people called or texted us to say that they saw us on the MASN TV broadcast sitting directly behind the Nats dugout.
Last week ten environmental groups filed suit in federal court in Alaska to block offshore Arctic oil drilling by Shell. Shell has obtained the necessary permits for exploratory drilling this summer, but the environmental groups argue that the Interior Department underestimated the risks of an oil spill in the fragile Arctic environment. Shell has asked EPA to ease the emissions requirements of the air pollution permit it had been granted for its drilling vessels in January 2012. Last week BP announced that it was shelving its proposed Liberty project to drill in the Beaufort Sea offshore of Alaska based on its conclusion that it would be too costly to meet stricter environmental standards adopted in the wake of the Deepwater Horizon oil spill.
Last week Texas district court judge Gisela Triana ruled that the “public trust” doctrine that dates from ancient Roman law applies to the atmosphere and is not limited to water, rejecting an argument by the Texas Commission on Environmental Quality. However, she declined to compel the Commission to write rules to control greenhouse gas (GHG) emissions, noting that Texas is involved in pending litigation challenging EPA’s efforts to regulate such emissions. This is the first modest success in the public trust climate lawsuits filed in 11 states that have been coordinated by the Oregon nonprofit group Our Children’s Trust.
The World Bank has voted to approve funding for a transmission line that would enable Kenya to receive power from the controversial Gilgel Gibe II dam in southern Ethiopia. Several local and international environmental groups had lobbied the bank not to provide funding for the project because of the environmental damage the dam would cause.
I spent the weekend in Miami with my son where we attended the three weekend games between the Washington National and Miami Marlins in the Marlins new stadium. It was gratifying to see how many Nationals fan were at the games and also to have nearly 30,000 people at each game in the stadium, which seems to have revitalized interest in baseball in Miami. In past years the old stadium would be virtually empty and there would be only five or six Nats fans at the Miami games. Having a stadium with a retractable roof solves Miami’s problem of frequent summer rains, though baseball is more enjoyable when played outdoors. On Saturday several people called or texted us to say that they saw us on the MASN TV broadcast sitting directly behind the Nats dugout.
Monday, July 9, 2012
Tenth Colloquium of the IUCN Academy of Environmental Law (by Bob Percival)
The Tenth Colloquium of the IUCN Academy of Environmental Law was held at the University of Maryland Francis King Carey School of Law from July 1-5. On the morning of July 1 a special pre-Colloquium Workshop on Environmental Law Clinics was held. It opened with a film by Global Environmental Justice Fellow Zoe Fullem that summarized the 2007 Conference on Globalizing Clinic Education to Protect Public Health and the Environment, which gave rise to this website. Much of that material will be archived in the near future in favor of clips from the 2012 Colloquium. Maria Marquez i Banque from the Universitat Rovira i Virgili in Catalonia, WIll Amos from the University of Ottawa, and Kim Diana Connoly from SUNY-Buffalo then discussed various global models of environmental law clinics. They announced an initiative to build a global network linking environmental law clinics around the world to facilitate information exchange between them. Robert Kuehn from Washington University then presented a comprehensive history of efforts to apply political pressure to curb the activities of environmental law clinics, starting with the University of Oregon in the early 1970s. Kuehn had been the director of the Tulane Environmental Law Clinic when the Louisiana Supreme Court, acting at the behest of business interests, sharply curtailed the clinic’s ability to represent clients. Jane Barrett, DIrector of Maryland’s Environmental Law Clinic, then outlined recent efforts to apply political pressure in response to the clinic’s lawsuit against Perdue Inc. for improper management of chicken waste.
On Sunday afternoon the Colloquium opened with a Bullpen Party at Camden Yards prior to the baseball game between the Baltimore Orioles and Cleveland Indians. The Oriole Bird made an appearance at the party and posed for photos with many of the Colloquium participants. The game that followed - a 6-2 victory for Cleveland - was less memorable than the discovery that there was a continuous breeze cooling the very top row of seats in the Stadium, which provided some relief from the 100-degree temperatures - an instance of adaptation to climate change.
On Monday July 2 the opening plenary session of the Colloquium focused on what happened at Rio+20 and where do we go from here. Brazilian Supreme Court Justice Antonio Benjamin noted that the Rio+20 conference did result in the adoption of a consensus document that included many positive features. He was even more enthusiastic about the product of a separate conference of judges and attorneys general - the World Congress on Justice, Governance and Law for Environmental Sustainability, held immediately prior to Rio+20, that reaffirmed the role of law in promoting sustainability. Jacob Scheer of NRDC noted that there were hundreds of voluntary commitments made at Rio, including pledges by major retailers to green their supply chains to prevent deforestation. EPA General Counsel Scott Fulton, UNEP Regional Director Amy Fraenkel, and Pace Professor Nick Robinson, agreed with the general consensus that there had been a shift away from primary emphasis on multilateral environmental treaties toward more diverse approaches that involve NGOs, businesses, and governments in local and regional initiatives.
Following a tour and dinner at the National Aquarium in the Inner Harbor, the Colloquium on Monday evening heard a keynote address on “Global Environmental Law at a Crossroads” from Professor Edie Brown Weiss of Georgetown. Dean Phoebe Haddon introduced Professor Weiss , who agreed that we have entered the “anthropocene” epoch because the vast scale of the impact of human activity on the planet. She noted the field of global law had become “kaleidoscopic” because of the growth of mixed public/private and local and regional initiatives.
Tuesday morning’s plenary session focused on environmental enforcement. The speakers included Professor Elizabeth Kirk from the University of Dundee, Nova Southeastern University Professor Joel Mintz, George Washington Professor Lee Paddock, Boalt Visiting Professor Alex Wang, and Steve Wolfson from EPA’s International Environmental Law Practice Group. They focused on how to help regulatory agencies respond to change, lessons from past enforcement experience, compliance incentives, and enforcement policies in China and the U.S.
On Tuesday evening the Colloquium hosted an International FIlm Festival. Five student films from Brazil, China, and the United States were shown. They included topics such as littering in Brazil, recycling in Sao Paulo, the ban on free distribution of plastic bags in China, and the importance of maintaining sustainable stocks of menhaden. “Celebrating Svitlana,” a film made in tribute to the late Svitlana Kravchenko, last year’s recipient of the senior scholarship prize at the Academy Colloquium who died suddenly earlier this year, also was shown. Following the showing of the films, nearly 200 Colloquium participants gathered for an international wine tasting that featured more than 75 wines from around the world. Maryland’s student choral group “Legally Sound” performed at the winetasting, which inspired many of the participants spontaneously to perform their national songs.
Wednesday morning’s plenary session focused on access to information and public participation. It was a tribute to the work of Svitlana Kravchenko and participants include her husband Professor John Bonine of Oregon, Professor Jan Jans of the University of Gronigen, and Professor Tseming Yang, who has just joined the Santa Clara law faculty. A closing plenary moderated by Professor Jamie Bendickson from the University of Ottawa summarized themes from the various Colloquium sessions. On Wednesday evening a group of 150 Colloquium participants went on a dinner cruise of Baltimore harbor to eat blue crabs (many for the first time) and to watch the Fourth of Juy fireworks display. This was followed by dancing on the boat.
The Colloquium ended on Thursday with a morning field trip to the Patuxent National WIldlife Research Refuge on the site of a former World War I munitions testing range. This was followed by a trip to the World Bank on Thursday afternoon for a special post-Colloquium program on Environmental Justice, Access to Information, and Public Participation. Assistant Attorney General Ignacia Moreno gave the keynote address at this program. I participated in a panel discussion following presentations by Professor John Bonine and Justice Antonio Benjamin.
Altogether more than 250 people participated in the Colloquium from nearly 100 universities in more than 30 countries. Most of the abstracts of the Colloquium presentations are available online at: http://digitalcommons.law.umaryland.edu/gelc. Video and conference papers will be included in this repository soon.
On Sunday afternoon the Colloquium opened with a Bullpen Party at Camden Yards prior to the baseball game between the Baltimore Orioles and Cleveland Indians. The Oriole Bird made an appearance at the party and posed for photos with many of the Colloquium participants. The game that followed - a 6-2 victory for Cleveland - was less memorable than the discovery that there was a continuous breeze cooling the very top row of seats in the Stadium, which provided some relief from the 100-degree temperatures - an instance of adaptation to climate change.
On Monday July 2 the opening plenary session of the Colloquium focused on what happened at Rio+20 and where do we go from here. Brazilian Supreme Court Justice Antonio Benjamin noted that the Rio+20 conference did result in the adoption of a consensus document that included many positive features. He was even more enthusiastic about the product of a separate conference of judges and attorneys general - the World Congress on Justice, Governance and Law for Environmental Sustainability, held immediately prior to Rio+20, that reaffirmed the role of law in promoting sustainability. Jacob Scheer of NRDC noted that there were hundreds of voluntary commitments made at Rio, including pledges by major retailers to green their supply chains to prevent deforestation. EPA General Counsel Scott Fulton, UNEP Regional Director Amy Fraenkel, and Pace Professor Nick Robinson, agreed with the general consensus that there had been a shift away from primary emphasis on multilateral environmental treaties toward more diverse approaches that involve NGOs, businesses, and governments in local and regional initiatives.
Following a tour and dinner at the National Aquarium in the Inner Harbor, the Colloquium on Monday evening heard a keynote address on “Global Environmental Law at a Crossroads” from Professor Edie Brown Weiss of Georgetown. Dean Phoebe Haddon introduced Professor Weiss , who agreed that we have entered the “anthropocene” epoch because the vast scale of the impact of human activity on the planet. She noted the field of global law had become “kaleidoscopic” because of the growth of mixed public/private and local and regional initiatives.
Tuesday morning’s plenary session focused on environmental enforcement. The speakers included Professor Elizabeth Kirk from the University of Dundee, Nova Southeastern University Professor Joel Mintz, George Washington Professor Lee Paddock, Boalt Visiting Professor Alex Wang, and Steve Wolfson from EPA’s International Environmental Law Practice Group. They focused on how to help regulatory agencies respond to change, lessons from past enforcement experience, compliance incentives, and enforcement policies in China and the U.S.
On Tuesday evening the Colloquium hosted an International FIlm Festival. Five student films from Brazil, China, and the United States were shown. They included topics such as littering in Brazil, recycling in Sao Paulo, the ban on free distribution of plastic bags in China, and the importance of maintaining sustainable stocks of menhaden. “Celebrating Svitlana,” a film made in tribute to the late Svitlana Kravchenko, last year’s recipient of the senior scholarship prize at the Academy Colloquium who died suddenly earlier this year, also was shown. Following the showing of the films, nearly 200 Colloquium participants gathered for an international wine tasting that featured more than 75 wines from around the world. Maryland’s student choral group “Legally Sound” performed at the winetasting, which inspired many of the participants spontaneously to perform their national songs.
Wednesday morning’s plenary session focused on access to information and public participation. It was a tribute to the work of Svitlana Kravchenko and participants include her husband Professor John Bonine of Oregon, Professor Jan Jans of the University of Gronigen, and Professor Tseming Yang, who has just joined the Santa Clara law faculty. A closing plenary moderated by Professor Jamie Bendickson from the University of Ottawa summarized themes from the various Colloquium sessions. On Wednesday evening a group of 150 Colloquium participants went on a dinner cruise of Baltimore harbor to eat blue crabs (many for the first time) and to watch the Fourth of Juy fireworks display. This was followed by dancing on the boat.
The Colloquium ended on Thursday with a morning field trip to the Patuxent National WIldlife Research Refuge on the site of a former World War I munitions testing range. This was followed by a trip to the World Bank on Thursday afternoon for a special post-Colloquium program on Environmental Justice, Access to Information, and Public Participation. Assistant Attorney General Ignacia Moreno gave the keynote address at this program. I participated in a panel discussion following presentations by Professor John Bonine and Justice Antonio Benjamin.
Altogether more than 250 people participated in the Colloquium from nearly 100 universities in more than 30 countries. Most of the abstracts of the Colloquium presentations are available online at: http://digitalcommons.law.umaryland.edu/gelc. Video and conference papers will be included in this repository soon.
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