Japanese Court Blocks Reactor Restart, BP Again Loses Challenge to Settlement, China May Expand Tax Incentives for Electric Cars, China Trip (by Bob Percival)

On May 21 a court in Japan ruled that the Kansai Electric Power Company cannot restart two of its nuclear reactors due to safety concerns.  The ruling from the Fukui District Court is a blow to the plans of Prime Minister Shinzo Abe to bring back online the country’s nuclear power plants that were idled following the 2011 Fukushima Daiichi nuclear disaster. The court cited uncertainty concerning the ability of Oi reactors 3 & 4 in western Japan to withstand an earthquake.  The court’s ruling came in response to a lawsuit brought by 189 plaintiffs who live within 250 kilometers of the Oi plant.  Mari Iwata, Japan Court Blocks Reactor Restarts, Wall St. J., May 21, 2014.

On May 19 a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied BP’s motion for reconsideration of its ruling upholding the Claims Administrator’s interpretation of BP’s agreement to settle claims arising out of the March 2010 Deepwater Horizon oil spill.  BP argued that it was unconstitutional for the Claims Administrator to be able to pay claims regardless of whether claimed losses were actually caused by BP’s conduct.  The two judges in the majority concluded that in the settlement agreement BP had agreed to certain indirect means of connecting a claim to BP’s conduct in the Gulf “that sufficiently satisfied each party’s litigation interests.”  The judges concluded that “In settling this lawsuit, the parties agreed on a substitute for direct proof of causation by a preponderance of evidence.  By settling this lawsuit and agreeing to the evidentiary framework for submitting claims, the plaintiffs did not abandon their allegations of Article III causation.”  By a vote of 8-5 the entire Fifth Circuit then denied a rehearing en banc.  BP’s only recourse now is to seek review by the U.S. Supreme Court.  While there is no possibility of a circuit split on this issue, which usually is the primary reason the Supreme Court would grant review, the five dissents might increase the chances of Supreme Court review.

Beijing Business Today reported that the Chinese government is considering whether to extend the subsidies it offers to purchasers of domestically-produced electric cars to electric cars that are imported into China. U.S. electric car manufacturer Tesla Motors, which has begun selling its cars in China, has asked the Chinese government to enable purchasers of its cars to qualify for the tax incentives, which range from 35,000 to 60,000 yuan ($5,700 to $9,800).  Miao Wei, minister of Industry and Information Technology, also indicated that the Chinese government is considering offering foreign electric car manufacturers incentives to build their cars on the mainland.  Tesla is rumored to be interested in establishing an assembly facility in China to complement its existing facilities in California and the Netherlands.

I will be spending the next three weeks in China as a high-level visiting foreign expert at the Shanghai Jiaotong University School of Law.  China’s firewall usually blocks this website but I should be able to post regularly on my parallel blog at: http://www.globalenvironmentallaw.com.

Indian Election, Eli Lilly Fined by Brazil for Worker Exposure to Toxics, German Nuclear "Bad Bank" Proposal, Graduation, Global Public Health Grant (by Bob Percival)

Last week voters in India completed the largest election in history by sweeping the Bharatiya Janata Party (BJP) to power, making Narendra Modi the prime minister-elect of India.  More than 814 million people were eligible to vote in the election, which was held on nine polling days extending over five weeks.  While many believe that Modi’s pro-business policies may be bad for the environment, the new prime minister pledged during the campaign to clean up the horrendously-polluted Ganges River.  It is estimated that 300 million liters of raw sewage and industrial pollutants are dumped into the Ganges every day.  Modi has used his pledge to clean up the Ganges as a metaphor for his campaign to clean up corruption in India.  While there is wide public support for cleaning up the river, many express skepticism concerning Modi’s environmental record, noting that he claims to have cleaned up the Sabarmati River, which is still polluted.  Shreeva Sinha, A River Is Revered, Fouled, and the Symbol of an Election Campaign, N.Y. Times, May 15, 2014, at A7.

Eli Lilly and a unit of the Italian company ACS Dobfar were fined $1 billion reals ($450 million) for exposing hundreds of workers to toxic substances at a chemical plant 140 kilometers from Sao Paulo.  Judge Antonio Rita Bonardo found that the vast majority of workers tested showed evidence of heavy metals and other toxics in their blood.  The judge also prohibited the plant from operating for a year.  The ruling is the result of a lawsuit filed against the companies in 2008 to redress worker exposure to toxics.  The judge also required the companies to pay for medical treatment of workers who worked at the plant for more than six months as well as the cost of medical treatment of their children. Paul Kiernan, Brazilian Judge Fines United Over Worker Illnesses, Wall St. J., May 12, 2014, at B3.

A proposal to create a “nuclear bad bank” to take responsibility for the decommissioning of nuclear power plants in Germany has met with skepticisim.  German utilities Eon, RWE and EnBW have been in discussions to create a state-owned foundation to oversee the decommissioning process as the country phases out nuclear power.  German environment minister Barbara Hendricks rejected the “bad bank” idea, stating that “The full responsibility for the safe phasing out, closure, decommissioning and interim storage of nuclear waste lies with the energy companies.” Jeevan Vasager, German Utilities and Government Clash over Nuclear ‘Bad Bank’,” Financial Times, May 11, 2014

On May 16 the University of Maryland Carey School of Law held its commencement exercises.  A total of twenty-one students graduated with the certificate of concentration in environmental law.  Since 1998 a total of 346 students have graduated with the environmental law concentration.  On May 15 the Maryland Environmental Law Program held a reception to honor the 21 J.D. students graduating with a certificate of concentration in environmental law.  We also honored Yuezhu Liu, who graduated with an LL.M. focused on environmental law.  Her family from Nanjing, China, attended the ceremony, including her father who is the chair of the environment and natural resources committee of the Jiangsu Bar.

On Wednesday May 14 I was honored as one of the recipients of an Interprofessional Global Health grant at a ceremony held in the Gladhill Board Room on the University of Maryland Baltimore campus.  The ceremony also included many of the students who will be participating in the multi-disciplinary projects this year.  My project was inspired by Julie Weisman of the Water Resoures Action Project who went to Israel with me and some Maryland students last year.  Next spring break we will return to Israel with a multi-disciplinary group of students from Maryland’s law, business, and public health schools to work on policies to facilitate greater use of greywater recycling.

China & the World Conference, Oped on Supreme Court Mistakes, Chevron Patton Boggs Settlement, Hangzhou Protests (by Bob Percival)

On Saturday I was one of the guest speakers at a terrific conference at the University of Chicago on “China and the World: Business, Politics, and International Relations in the Age of an Asian Superpower.”  Most of the speakers were professors of international relations, political science, or economics.  I was the only law professor who spoke at the conference and the only speaker to focus entirely on efforts to combat China’s environmental problems. The conference organizers took very good care of us.  They sent a stretch limousine to take us from the hotel to the conference, gave us a “green room” in which to prepare in the university’s famed International House, and introduced us to University of Chicago President Robert Zimmer prior to the start of the conference.

I really enjoyed hearing perspectives on China from other disciplines.  Keynote speaker Yao Yang, director of the China Center for Economic Research at Peking University, noted that government and state-owned enterprises still account for 60% of China’s economy.  He argued that China’s various government ministries have become  the equivalent of U.S. special interest groups.  Yang predicted that growing inequality in China ultimately will hurt the country’s economy.  Former George Washington Business School dean Doug Gouthrie argued that the U.S. has become a junior partner in China/U.S. business relations.  He described the dressing down he received from several prominent Chinese investment groups when he took D.C. Mayor Vincent Gray to China to talk up investments in Washington, D.C.  Siva Yam, president of the U.S.-China Chamber of Commerce, argued that China has hurt its economy’s long-term prospects by making massive investments in fixed assets instead of research and development, which may account for why China has not invented anything of significance in the last century. 

Vikram Nehru from the Carnegie Endowment for International Peace, who was one of the principal authors of the World Bank’s “China 2030” report, noted that China has uniquely high levels of savings and investment.  He noted that many of the recommendations of the World Bank report have been embraced by Chinese authorities and he rejected the prescription that China simply should try to stimulate greater domestic consumption. Nehru expressed optimism that China’s massive investments in education would improve the country’s human capital and he deemed negotiations of a future free trade agreement between the U.S. and China to be critical.  Robert Kapp, former president of the U.S.-China Business Council, complained that uneven enforcement of Chinese laws and regulations hurts foreign competitors, but he noted that virtually all foreign companies in China are still making money.  University of Chicago Professor John Mearsheimer, viewing the world as a centuries-old competition among nations for dominance, gave his standard talk on how military conflict between the U.S. and China is virtually inevitable.  

Phil Saunders, director of the Center for Study of Chinese Military Affairs, noted that even countries that do not trust each other are continuing to expand bilateral trade and investment because they now care more about increasing economic growth and improving living standards.  Former U.S. Ambassador to Ethiopia David Shinn, who I discovered is a neighbor of mine on Capital Hill, gave a terrific talk on China’s efforts to cultivate African countries.  He noted that 50 of the African continent’s 54 countries now support China instead of Taiwan.  Shinn observed that even though the U.S. still provides more aid to African countries than China does, China has better relations with more African countries than the U.S. has.  I spoke about China’s efforts to combat its immense environmental problems, describing our March testimony before the Standing Committee of the National People’s Congress and the changes in China’s basic Environmental Law that it helped inspire.

On Sunday May 11 the Baltimore Sun published an oped (“A Supreme oops”) I wrote that reviewed the history of errors in Supreme Court decisions. The oped was inspired by Justice Scalia’s dissent in the EME Homer decision in which the Court upheld EPA’s regulations of interstate air pollution under the Clean Air Act.  I described a situation where I narrowly averted what would have been an embarrassing mistake in a decision I had helped Justice White draft while working as his law clerk. I also noted some examples of where mistakes in slip opinion subsequently were corrected by the Justices. The oped is available online at: http://www.baltimoresun.com/news/opinion/oped/bs-ed-justice-gaffes-20140509,0,526654.story

On Tuesday May 6 the White House released the third National Climate Assessment, which is available online at: http://nca2014.globalchange.gov/highlights#section-5682. The report summarizes the likely impacts of climate change on the U.S. It is based on research by a team of 300 experts who reported to a 60-member federal advisory committee. The report concluded that the effects of climate change already are being felt throughout the U.S.  It warns that action should be taken now to avoid some of the most damaging future effects of climate change.  

While seeking to stave off bankruptcy and to facilitate a merger with another law firm, Patton Boggs stunned the legal world last week by agreeing to a unprecedented settlement of Chevron’s RICO suit against it.  Patton Boggs had joined the decades-long effort to hold Chevron accountable for polluting the Oriente region of Ecuador only after the plaintiffs had won an $9.5 billion judgment.  As part of its “scorched earth” litigation tactics in the case, Chevron sued all of the plaintiffs and their lawyers under the Racketeering Influenced Corrupt Organizations (RICO) Act, alleging that they were part of a massive fraudulent shakedown operation.  Patton Boggs, which had not been involved in any allegedly fraudulent activities, agreed to pay Chevron $15 million and to provide it with evidence that might be used against its former client, raising serious ethical concerns.

Intense clashes occured last week between Chinese police and protesters opposing the siting of a waste incinerator near Hangzhou.  Responding to the protests, the Hangzhou government said the project would not proceed without public support.  The incinerator is designed to handle 36% of the city’s waste.  James T. Areddy, Incinerator Plans Spur Clashes in China, Wall St. J., May 12, 2013, at A8.

P.S. On May 4 my first grandchild, Zoe Ariana Griffin, was born.  Details (and baby photos) are available in a May 5 blog post on my parallel blog at: http://www.globalenvironmentallaw.com