Montreal Protocol Talks Focus on HFCs, Supreme Court to Hear MATS Cases, Macalester Visit, China Trip (by Bob Percival)

Representatives from more than 100 countries who are parties to the Montreal Protocol on Substances that Deplete the Ozone Layer met in Paris from November17- 21, 2014 for their 26th Meeting of the Parties (MOP).  The meetings focused largely on efforts to expand the Protocol to phase out hydrofluorocarbons (HFCs), substances that are potent greenhouse gases.  Because many substances that deplete the ozone layer also are greenhouse gases, the Montreal Protocol, adopted in 1987, actually has been responsible for reducing more GHG emissions than the Kyoto Protocol.  Most countries now agree that it would be wise to use the Montreal Protocol to phase out HFCs.  Although China and India previously had been obstacles to reaching agreement on this issue, they have agreed to support such an initiative, in part due to personal diplomacy by President Obama in meetings with Chinese President Xi Jinping and Indian Prime Minister Narendra Modi during the last 18 months.  David Doniger, director of NRDC’s climate program who attended the Paris meetings, reports that the delegation from Saudi Arabia was the largest obstacle to reaching an agreement, perhaps as part of a larger strategy to stall global climate negotiations (http://switchboard.nrdc.org/blogs/ddoniger/countries_accelerate_talks_on.html).  Agreement was reached in Paris to accelerate the negotiations on HFCs in hopes that a final agrement can be reached at MOP-27 next November, just prior to the crucial climate talks scheduled for Paris in December 2015.

On November 25 the U.S. Supreme Court announced that it had agreed to review the D.C. Circuit’s decision upholding EPA’s regulation of mercury and air toxics (MATS) from power plants as hazardous air pollutants under Section 112 of the Clean Air Act.  The decision was not a surprise because the Court announced on November 17 that it had relisted the petitions for a second conference after considering them at conference on November 14.  I had learned from good authority that the Court has a new, unannounced rule that it ordinarily will not grant cert until it has considered a petition at more than one conference of the Justices.  This rule apparently is a response to the Court discovering in the past that some cases they agreed to review did not actually present the questions the Justices initially thought they did.  Although some observers expressed surprise when the Supreme Court announced that it had relisted the petitions for a second conference, it confirmed for me that the Court was likely to review them.  The Court granted review on a question it framed as: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”  The consolidated cases are Michigan v. EPA, Utility Air Regulatory Group v. EPA and National Mining Association v. EPA.  At the two Supreme Court preview programs ELI President John Cruden and I presented last month, we predicted that these were the environmental cases the Court was most likely to take, though I hoped the Court would deny review.  Some utility executives interviewed by the press indicated that they may suspend their orders for new pollution control equipment pending the Court’s decision in the case.

On November 20 and 21 I visited Macalester College’s Environmental Studies Program along with my former colleague Bruce Rich, former director of international programs for the Environmental Defense Fund.  I introduced Bruce at a campus-wide lecture on November 20 and then attended a program where he spoke at the Institute for Agriculture and Trade Policy.  Both of Bruce’s lectures focused on the environmental consequences of World Bank policy.  On November 21 I participated in a luncheon of Macalester students interested in applying for a summer Global Environmental Justice fellowship.  In the afternoon I gave a lecture on climate change and the new U.S./China agreement to an environmental studies class at Macalester.  I continue to be really impressed with Macalester’s interdisciplinary Environmental Studies Program and the quality of the students who have enrolled in it.

I hope everyone had a happy Thanksgiving.  In a few hours I am leaving for China, my fourth trip of the year to that country.  I will be completing my stint as a high-level visiting foreign expert at Shanghai Jiaotong University.  On December 3 I am scheduled to give a campus-wide lecture on “Is Divided Government Dysfunctional?” As is usual during my China trips, I do not expect to be able to post blog entries on this website because Blogspot is blocked by China's Great Firewall.  I will be blogging on my parallel blog at: www.globalenvironmentallaw.com.  I will be returning to the U.S. on December 20.  

Historic US/China Climate Agreement, Japan Reactor Restart Approved, Yates Oral Argument, IUCN World Parks Congress, IFC Adopts Levi's TOE (by Bob Percival)

On November 12 President Obama and Chinese President Xi Jinping announced that they had reached a historic agreement on reducing emissions of greenhouse gases (GHGs) in the U.S. and China. The text of the joint announcementis available online at: http://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change. Under the agreement the U.S. pledges to reduce its GHG emissions by between 26 and 28% over 2005 levels by the year 2025.  China pledges to cap its GHG emissions as soon as possible, but no later than 2030.  Both countries pledge to work together to speed the development of new technologies to accelerate controls on GHG emissions.

Incoming Senate majority leader Mitch McConnell quickly criticized the agreement, claiming that “it requires the Chinese to do nothing at all for 16 years while these carbon emission regulations are creating havoc in my state and other states around the country.”  But 2030 is the final compliance date for both China’s new commitment and EPA’s Clean Power Plan. To meet its commitment to cap its rapidly rising emissions by then China must launch a variety of GHG control initiatives now, just as EPA is trying to launch its Clean Power Plan.  

The subject of the U.S./China agreement came up during a presentation I made at the 2014 Federalist Society National Lawyers Convention on November 15 on a panel on “Do EPA’s CO2 Rules Go Too Far.”  The panel was moderated by Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit.  Also on the panel were former EPA Deputy Administrator Robert M. Sussman, Paul Bailey from the American Coalition for Clean Coal Electricity, and Elbert Lin, the Solicitor General of West Virginia.  Video of the presentation is available online at https://www.youtube.com/watch?v=N7Iye7WYxtY&feature=youtu.be.  I noted that China’s plans are even more far-reaching than EPA’s in several respects because China plans to convert its seven pilot carbon trading programs into a nationwide program, China has a national portfolio standard that it will strengthen to generate 20% of its energy from renewable sources by 2030, and China is starting explicitly to restrict the use of coal.  In my presentation I also discussed the legal issues raised by EPA’s Clean Power Plan.  These include EPA’s unquestioned authority to regulate GHG emissions under the Clean Air Act (CAA), the premature lawsuits seeking to stop the rulemaking, the conflicting versions of §111(d) adopted by Congress in 1990, and why EPA’s interpretation of “best system of emissions reduction” (BSER) is permissible under the Act. I also noted that the CAA has generated more benefits than any other environmental statute because policymakers rejected exaggerated claims about the prospective costs of regulation that have been made at every significant juncture in its history.

The U.S./China climate agreement is truly historic.  It represents the first time China has committed to cap its emissions of GHGs, a daunting task given China’s rapid economic growth.  Because China and the U.S. are the two largest sources of current GHG emissions, it greatly increases the chances of a global GHG reduction agreement being reached in Paris at the end of next year (both countries state they are “committed to reaching an ambitious 2015 agreement that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances.”)  It also counters what has long been the chief excuse for inaction by the opponents of domestic controls on GHG emissions.  Tom Toles eloquently summed this up in a cartoon that appeared in the Washington Post with an elephant telling uncle Sam “We shouldn’t cut our carbon emissions because China won’t cut theirs.”  Uncle Sam replies, “They just agreed to cut theirs!”  The elephant then replies, “We shouldn’t cut ours for some other reason.”

The midterm election on November 4 resulted in the Republican Party acquiring a majority in the U.S. Senate, given them control of both houses of Congress.  State initiatives to require labeling of products that contain genetically modified organisms (GMOs) were defeated in Oregon (by 50.5-49.5%) and in Colorado (by 65.7-34.3%), leaving Vermont as the only state with such a law. 

On November 7 Kagishima prefecture in Japan approved the restart of two nuclear reactors at the Sendai nuclear powerplant.  The decision is considered a victory for Prime Minister Shinzo Abe’s government which is seeking to restart nuclear powerplants closed in the wake of the Fukushima Daiichi disaster, despite strong public opposition.  If these reactors are restarted early next year they will be the first of the country’s 48 nuclear powerplants to generate electricty since the March 2011 disaster when all were taken offline.

On November 5 some of the students in my Environmental Law class came to the Supreme Court with me to watch the oral argument in Yates v. U.S.  The case involves the application of the Sarbanes-Oxley legislation’s ban on destruction of evidence to a commercial fisherman who was caught in federal waters with undersize red grouper.  The legal question is whether a fish is a “tangible object” whose destruction is prohibited when it impedes an investigation, as the conservative judges in the lower court held. The fisherman received a sentence of only 30 days in jail, but Justices Scalia and Alito expressed outrage that he potentially could have been given a 20 year term.  When the lawyer for the Solicitor General pointed out that the fisherman has disobeyed an explicit instruction to preserve evidence “and then launched a convoluted cover-up scheme to coverup the fact that he had destroyed the evidence,” Chief Justice Roberts responded, “You make him sound like a mob boss or something.”  It was hard not to come away from the argument with the impression that because it was federal fisheries laws that were being enforced, several Justices did not take the crime of destruction of evidence as seriously.  In an editorial supporting the convicted fisherman, the Wall Street Journal bizarrely asserted that the law could bar a company from cleaning up a chemical spill because it would be destroying evidence. “For Want of a Grouper,” Wall Street Journal, Nov. 6, 2014.

The once-a-decade IUCN World Parks Congress convened in Sydney, Australia this week. The theme of the 2014 Congress is “Parks, People, Planet: Inspiring Solutions.” The opening plenary session was held on November 13.  The conference will run through November 19.  At the conference, Google unveiled a new app to make it easier to track illegal fishing activities. Developed in conjunction with Oceana and SkyTruth, the app will make it easier to track the movements of thousands of fishing vessels using data points from the Automatic Identification System network that maps a vessel’s location using GPS technology.  Another side event at the Parks Congress was the first meeting of a group of experts convened by Australia’s The Places You Love Alliance.  The group will seek to develop proposals for improving Australia’s environmental laws.  I am one of two foreign experts appointed to the panel and I briefly participated in the opening meeting by Skype.

On November 4 the International Finance Corporation, part of the World Bank Group, announced that it was working with the Levi Strauss Corporation to provide financial incentives to suppliers in developing countries to upgrade their environmental, safety, and labor standards. The IFC Global Trade Supplier Finance (GTSF) program will provide lower cost financing to garment suppliers who score highly on Levi’s Terms of Engagement (TOE) assessments.  Levi Strauss pioneered environmental and social assessments of suppliers in 1991 when it launched its TOE program.

On November 14 the University of Maryland Carey School of Law’s Environmental Law Program held its annual Fedder Lecture and Winetasting.  More than 100 alums joined Maryland’s faculty and students for the event.  This year’s Fedder Lecture was deliver by David Doniger, director of clean air and climate programs for the Natural Resources Defense Council.  The topic of his lecture was “Paths Forward on Climate: What’s Worked So Far and What’s Next.”  Doniger expressed optimism that the new U.S./China agreement will increase the chances for successful negotiation of a new global climate treaty in Paris at the end of next year.

IPCC Warns of "Irreversible" Impacts of Climate Change, EU Agrees on GHG Targets, China's "Rule of Law" Plenum, Penn Conference, Kunming Delegation (by Bob Percival)

At a meeting in Copenhagen the Intergovernmental Panel on Climate Change (IPCC) released its final synthesis report describing the conclusions of the various reports generated by its Fifth Assessment of the problems of global warming and climate change. In a press release issued today, the IPCC stated “human influence on the climate system is clear and growing with impacts observed on all continents.” The IPCC concluded that “if left unchecked, climate change will increase the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.” More than 830 scientists from 80 countries played significant roles in the development of the Fifth Assessment reports.  They reviewed more than 30,000 scientific papers to produce the most comprehensive assessment of climate change ever issued. Thomas Stocker, co-chair of IPCC Working Group I, notes that “the assessment finds that atmosphere and oceans have warmed, the amount of snow and ice has diminished, sea level has risen and the concentration of carbon dioxide has increased to a level unprecedented in at least the last 800,000 years.” The synthesis report concludes that “stringent mitigation activities can ensure that the impacts of climate change remain within a manageable range.” 

On October 21 I attended the Environmental Law Institute’s annual dinner in Washington, D.C. Hundreds of environmental lawyers showed up, filling the ballroom of the Shoreham Hotel.  ELI President John Cruden presented the Institute’s annual award to Mary Nichols, chair of the California Air Resources Board, and the state of California for their leadership in developing innovative environmental protection measures.  California Representative Henry Waxman, who is retiring from Congress, gave a wonderful talk that touched on the history of California’s role as an environmental pioneer.  It was great to see so many of my former students at the event and to get to introduce some of them to Mary Nichols.

On October 23 leaders of 28 European Union countries agreed to reduce EU emissions of greenhouse gases (GHGs) by 40 percent from 1990 levels by the year 2030. This represented the first commitment by a major bloc of countries in advance of the crucial summit to be held in Paris at the end of next year to adopt a successor to the Kyoto Protocol. The EU agreed on a goal of increasing the percentage of energy generated by renewable sources to 27 percent and on a largely hortatory goal of improving the energy efficiency of its economies by 27 percent. Sweden and Germany reportedly had sought more ambitious targets, but were pressured by Poland and other eastern EU countries to soften them.

On October 23 the Fourth Plenary Session of the 18th Central Committee of the Chinese Communist Party approved its much-anticipated rule of law document.  The report states that the Party “must comprehensively move ruling the country according to the law forward” in order to  develop “Socialism with Chinese characteristics,” to “realize the modernization of the national governing system and governing ability” and to promote “the people’s welfare, peace and health.” Throught the report emphasis is placed on the overriding importance of maintaining the Communist Party’s leadership of China.  In a section entitled “Strengthen Legislation in Focus Areas” one paragraph advocates strengthening environmental protection as follows: “Use strict legal structures to protect the ecological environment, accelerate the establishment of ecological civilization law structures to effectively restrain exploitative behaviour and stimulate green development, recycling development and low-carbon development, strengthen the legal liability of producers for environmental protection, substantially raise the costs of violating the law. Build and complete legal structures for property rights over natural assets, perfect legal structures in the area of State land exploitation and protection, formulate and perfect laws and regulations for ecological compensation, the prevention of soil, water and air pollution and the protection of the maritime ecological environment, to stimulate the construction of an ecological civilization.”

On October 24 I participated in a conference at the University of Pennsylvania Law School on the use of films in legal advocacy.  The conference was organized by Professor Regina Austin, Director of the Program on Documentaries & the Law at Penn, and Professor Daniel Kiel from the University of Memphis School of Law.  The conference was attended by approximately twenty professors and several students from fifteen schools including Penn, Maryland, Yale, Harvard, Georgetown, Miami, Chicago-Kent, Kentucky, Florida A & M,  New York Law School and others.  I spoke on the opening panel and described how students in my Environmental Law class have made films each year since 2002.  Over the years my students have made approximately 100 films; 70 are on display online at:  http://digitalcommons.law.umaryland.edu/envirofilms/.  It was interesting to see the different ways in which film is being used in law school classes.  The participants expressed interest in making the event an annual gathering and possibly hosting a law student film festival in the future.

On October 28 I attended the 25th anniversary celebration of the Center for International Environmental Law (CIEL) at the U.S. Botanical Gardens.  At the event CIEL presented its International Environmental Award to Professor Philip Allott of Trinity College, Cambridge, and its Frederick R. Anderson Award for Outstanding Achievement in Addressing Climate Change to former NASA scientist James Hansen.  It was great at the event to get a chance to catch up with Philippine environmentalist Tony Oposa, who is spending the fall semester visiting at Pace University Law School and who will be visiting at the University of Hawaii Law School next spring.

On October 29 I spoke to a group of environmental official from Yunnan Province in China who are participating in the Kunming Institute of Environmental Science Executive Education program sponsored by the Maryland China Initiative at the University of Maryland College Park (UMCP). I gave a total of four hours of lectures on U.S. environmental problems and the development of U.S. environmental law.  UMCP’s Maryland China Initiative is one of only two entities in the U.S. officially approved by China’s State Council to held train Chinese officials (the other is the John F. Kennedy School of Government at Harvard University).