On Tuesday October 12, Interior Secretary Ken Salazar lifted the moratorium on deepwater oil drilling that had been imposed in the wake of the BP oil spill in the Gulf of Mexico. The move was criticized both by environmentalists, who believed that it was too hasty, and by the oil industry who complained that new regulations they must comply with would delay their receipt of permits.
The chaotic state of U.S. energy policy in the wake of the failure of U.S. cap-and-trade legislation may be illustrated by the current dispute between Constellation Energy Group and its partner Electricité de France (EDF) over whether to abandon a project to build an additional nuclear power plant at Calvert Cliffs, Maryland. After U.S.-based Constellation announced that it was canceling the project, EDF offered last week to buy out the joint venture on the condition that Constellation not force it to take over 12 of its other powerplants that use fossil fuels. Clearly the foreign firm places a much higher value on generation assets with a lower carbon footprint than its U.S. partner does.
Last week Canadian Environment Minister Jim Prentice announced that the Canadian government was adding the chemical bisphenol-A (BPA) to its register of toxic substances under the country’s Chemical Management Plan. BPA is widely used to harden plastics, and some jurisdictions have limited its use in products likely to be used by children, such as baby bottles, due to test data raising toxicity concerns. Environment Canada based its decision on test data linking the chemical to harmful neurodevelopmental and behavioral effects in rodents. Based on this data, the agency stated it was “considered appropriate to apply a precautionary approach” to protect public health and the environment.
The 184 million gallons of toxic sludge released by the October 4th collapse of a containment reservoir at a plant that converts bauxite into alumina in Hungary has now killed 9 people and caused major damage to two villages. Despite initial assurances from Hungarian officials and the company that owned the plant that the sludge was not toxic, it contains high concentrations of arsenic and in undiluted form is a caustic as lye. Nonetheless, Zoltan Nakoyni, the chief executive of the company (MAL Hungarian Aluminum Productiona and Trade) that owned the plant was released by order of a judge who rejected demands that he be prosecuted for negligence. Hungary’s state minister for the environment Zoltan Illes warned that there are many other similar sites in central and eastern Europe where containment structures for toxic wastes have not been adequately maintained. Dan Bilefsky, Hungary Sludge a Warning for Other Sites in Europe, N.Y. Times, Oct. 15, 2010, at A10.
On Friday October 15, EPA Regional Administrator Shawn M. Garvin announced that he was recommending that the agency veto a permit for the largest mountaintop coal mining project in West Virginia. The permit, which had been approved by the George W. Bush administration, would allow dynamiting of 2,278 acres of land with the spoil to be dumped into nearby valleys. EPA found that the spoil would bury seven miles of streams, destroying all aquatic life and spreading toxic contaminants downstream. The company seeking the permit, Arch Coal, stated that it would vigorously contest any veto. John M. Broder, EPA Official Seeks to Block West Virginia Mine, N.Y. Times, October 16, 2010. An indication of how unpopular climate change legislation in West Virginia was provided last week when the state’s Democratic governor Joe Manchin released a campaign ad where he literally fires a bullet through the Waxman-Markey cap-and-trade bill. A video of the ad can be viewed at: http://www.youtube.com/watch?v=xIJORBRpOPM. As another blogger noticed, Manchin’s bullet actually hits the “s” in “to create clean energy jobs” in the preamble describing the bill’s purpose.
My wife, daughter and I were glued to the TV last week to watch the rescue of the 33 Chilean miners who had been trapped underground for 69 days. My daughter is Chilean and my wife and I will be visiting Chile next week where I will speak at an environmental conference at the University of Chile Law School’s Center for Environmental Law. The rescue was an inspiration to the entire world and it demonstrated how global publicity can create support for enhanced safety standards. Chilean President Sebastián Piñera stated that “If Chile wants to be a developed country it’s not just about sitting at the table with European countries but about treating workers as if we were a developed country.” He vowed to upgrade health and safety standards to respect the “life, health, integrity and dignity” of workers. Jude Webber, Chilean President Pledges “New Deal”, Financial Times, October 14, 2010. Editorial cartoonist Jeff Danziger portrayed officials in China, where more than 2,600 coal miners were killed in 2009 (down from 7,000 deaths in 2003), as asking whether this means that they will have to rescue trapped Chinese miners. See the fifth cartoon in the slideshow at: http://www.washingtonpost.com/wp-dyn/content/gallery/2010/10/15/GA2010101505085.html?referrer=emaillink
On Thursday October 14 a federal judge in New Orleans approved a settlement between homeowners, importers, manufacturers and distributors of drywall manufactured by a Chinese company, Knauf Plasterboard Tianjin. The drywall was linked to sulfur fumes that corroded metal and wiring and allegedly caused health problems for occupants of homes in which it was used. The companies agreed to remove and replace the drywall and electric wiring, gas tubing and appliances in 300 homes in 4 states at a cost estimated at $150,000 per home. It is believed that the settlement, which does not resolve claims of harm to health, could serve as a model for future settlements of similar lawsuits. M.P. McQueen, Deal in Drywall Case, Wall St. J., Oct. 15, 2010, at A5.
On Tuesday October 12 I was the luncheon speaker for the National Oceanic and Atmospheric Administration’s Law of the Sea Convention Working Group at NOAA headquarters in Silver Spring, Maryland. The topic of my talk was “Liability for Transboundary Environmental Harm and Emerging Global Environmental Law.” After the talk I had lunch with a group of NOAA attorneys and interns, including a Maryland law student who is interning at the agency.
Monday, October 18, 2010
Monday, October 11, 2010
Hungarian Sludge Spill, Tianjin COP-16 Preparatory Meeting, Cap-and-Trade Postmortem & EAB Field Trip (by Bob Percival)
On October 4 the collapse of an impoundment structure at the MAL Hungarian Aluminum Production & Trade plant in Ajka, Hungary spilled more than 200 million gallons of toxic red sludge that killed seven people, sent more than 100 to the hospital with chemical burns, and polluted waterways 100 miles southwest of Budapest. The sludge contains heavy metals that burned those who came into contact with it. Hungarian authorities sought to dilute the heavily alkaline sludge by dumping gypsum into tributary rivers and opening sluice gates to raise water levels. Hungarian environmental NGOs claimed that they had urged the government for years to control risks from the impoundment at the plant, but the company maintained that the waste was not considered toxic under EU standards. By October 7 the sludge had reached the Danube River, though with diminished alkalinity of 8.5 pH that was killing fewer fish than in the vicinity of the plant. Fears that a second impoundment structure will collapse led to the evacuation of the village of Kolantar on October 9.
Last week representatives from more than 190 nations gathered in Tianjin, China for the final meeting in preparation for the 16th Conference of the Parties (COP-16) to the UN Framework Convention on Climate Change, which will open in Cancun, Mexico on November 29. Unfortunately, little progress was made and few are expecting any dramatic results from the Cancun meeting. China’s representative reportedly called the U.S. delegate a “preening pig” given the lack of U.S. action on cap-and-trade legislation. Todd Stern, the chief U.S. climate negotiator, continued to promise that the U.S. would reduce its greenhouse gas (GHG) emissions by 17% by 2020, in line with its Copenhagen pledge and what the Waxman-Markey legislation that passed the House, but not the Senate, was expected to produce. Disagreement also continued on the size of a fund to assist developing countries in controlling their GHG emissions, though some reports suggest that progress was made on logistical details concerning how the fund would operate.
With cap-and-trade legislation now being disavowed by congressional candidates, many are discussing the reasons why the Senate failed to act and fingers are being pointed in several directions. Columnist Tom Friedman identifies five factors: “Mindless tribal partisanship,” “A TV network acting as the political enforcer of the Republican Party,” “Special interests buying policy,” “Politicians who put their interests before the country’s,” and “A political system that cannot manage multiple policy shifts at once -- even though it needs to.” Thomas L. Friedman, “An X-Ray of Dysfunction,” New York Times, Oct. 9, 2010.
On Thursday October 7, 23 students from my Environmental Law class made a field trip to EPA to watch an oral argument before the Environmental Appeals Board (EAB) in a case challenging a permit for an oil drilling platform off the coast of Alaska. The five students who arrived first were escorted to the argument by the Board’s clerk and reported that it was a fascinating argument with some judges sharply challenging Region 10’s seeming deference to Shell Oil in drafting the permit. However, 18 students who arrived a few minutes late due to heavy traffic then waited for an hour in EPA’s lobby after clearing security because the guards insisted that they needed an escort to the argument who was expected shortly, but who never materialized. Thus, even though the argument was being conducted in a room with plenty of empty seats only a few doors away from where the students were required to wait, EPA security would not let them in the Administrative Courtroom. Even the U.S. Supreme Court allows latecomers to attend its arguments so long as there is space in the courtroom. We had submitted all of the students’ names to EPA a week in advance and every student who said they were coming made the pilgrimage from Baltimore. I am amazed that this happened and I doubt if the students will be eager to visit the EAB again.
Last week representatives from more than 190 nations gathered in Tianjin, China for the final meeting in preparation for the 16th Conference of the Parties (COP-16) to the UN Framework Convention on Climate Change, which will open in Cancun, Mexico on November 29. Unfortunately, little progress was made and few are expecting any dramatic results from the Cancun meeting. China’s representative reportedly called the U.S. delegate a “preening pig” given the lack of U.S. action on cap-and-trade legislation. Todd Stern, the chief U.S. climate negotiator, continued to promise that the U.S. would reduce its greenhouse gas (GHG) emissions by 17% by 2020, in line with its Copenhagen pledge and what the Waxman-Markey legislation that passed the House, but not the Senate, was expected to produce. Disagreement also continued on the size of a fund to assist developing countries in controlling their GHG emissions, though some reports suggest that progress was made on logistical details concerning how the fund would operate.
With cap-and-trade legislation now being disavowed by congressional candidates, many are discussing the reasons why the Senate failed to act and fingers are being pointed in several directions. Columnist Tom Friedman identifies five factors: “Mindless tribal partisanship,” “A TV network acting as the political enforcer of the Republican Party,” “Special interests buying policy,” “Politicians who put their interests before the country’s,” and “A political system that cannot manage multiple policy shifts at once -- even though it needs to.” Thomas L. Friedman, “An X-Ray of Dysfunction,” New York Times, Oct. 9, 2010.
On Thursday October 7, 23 students from my Environmental Law class made a field trip to EPA to watch an oral argument before the Environmental Appeals Board (EAB) in a case challenging a permit for an oil drilling platform off the coast of Alaska. The five students who arrived first were escorted to the argument by the Board’s clerk and reported that it was a fascinating argument with some judges sharply challenging Region 10’s seeming deference to Shell Oil in drafting the permit. However, 18 students who arrived a few minutes late due to heavy traffic then waited for an hour in EPA’s lobby after clearing security because the guards insisted that they needed an escort to the argument who was expected shortly, but who never materialized. Thus, even though the argument was being conducted in a room with plenty of empty seats only a few doors away from where the students were required to wait, EPA security would not let them in the Administrative Courtroom. Even the U.S. Supreme Court allows latecomers to attend its arguments so long as there is space in the courtroom. We had submitted all of the students’ names to EPA a week in advance and every student who said they were coming made the pilgrimage from Baltimore. I am amazed that this happened and I doubt if the students will be eager to visit the EAB again.
Monday, October 4, 2010
U.S. Supreme Court 2010-2011 Term, 2nd Circuit ATS Decision, Indian Smelter Shutdown & U.S. Fuel Economy Targets (by Bob Percival)
Today is the first Monday of October and the U.S. Supreme Court begins its 2010-2011 Term with a new Justice (Elena Kagan) and no environmental case on its argument calendar. Despite the Court’s bare environmental docket, the importance of the judiciary in the development of environmental law has been illustrated by recent cases. For example, on September 17, a panel of the U.S. Court of Appeals for the Second Circuit ruled 2-1 that corporations cannot be held liable for violations of the Alien Tort Statute (ATS) because international law does not hold corporations civilly liable for torts in violation of the law of nations. The majority opinion in the case of Kiobel v. Royal Dutch Petroleum was authored by Judge Jose Cabranes over a vociferous dissent from Judge Pierre Leval. The decision would wipe out many existing ATS suits, while still allowing individuals to be sued under the ATS. It would have barred the lawsuits that led to large settlements by Unocal in the Burma litigation and by Shell Oil with the survivors of Ken Saro-wiwa in Nigeria. In his strong dissent Judge Leval argues that there is no authority supporting the majority’s position which would allow corporations to profit from egregious violations of universal norms of behavior with impunity from civil liability. Plaintiffs are likely to seek a rehearing en banc and the issue ultimately could be decided by the U.S. Supreme Court, which narrowly avoided neutering the ATS six years ago in the Sosa v. Alvarez-Machain case.
Last week the Madras High Court in India ordered Sterlite Industries, a subsidiary of Vedanta Resources, to close its Tuticorin copper smelter for violating environmental regulations in a sensitive coastal area of Tamil Nadu state. The smelter, which was built in 1996, is located 15 kilometers from the Gulf of Mannar, a national marine park, despite a requirement that it be no closer than 25 kilometers. The company also had failed to develop a 250 meter green belt around the plant. The decision sent shock waves through the Bombay Stock Exchange. The head of research for JPMorgan India, Jahangir Aziz, stated that “Somebody has to be made an example of. They ran into some judges who said: ‘Enough is enough. Nobody is doing anything [to enforce environmental laws] so we are’.” Amy Kazmin, Fresh Blow to Vedanta’s Battered Green Credentials, Financial Times, Sept. 29, 2010. On Friday October 1 the Supreme Court of India granted a temporary stay of the lower court’s order to close the smelter until a hearing on October 18.
Last week the U.S. Environmental Protection Agency (EPA) and the Department of Transportation (DOT) proposed a dramatic increase in U.S. fuel economy standards to require vehicles to average as much as 62 miles per gallon by the year 2025. The agencies are seeking public comment on this proposal. Regulations they issued in April require vehicles to average 35 mpg by model year 2016. The Wall Street Journal reported that General Motors Company, which is now 61% controlled by the U.S. government, is accelerating plans for a new, more fuel-efficient, line of large sport utility vehicles. Siobhan Hughes & Sharon Terlep, GM Plans New SUVs Ahead of Fuel Goals, Wall Street J., Oct. 2-3, 2010, at 1.
Last week the Madras High Court in India ordered Sterlite Industries, a subsidiary of Vedanta Resources, to close its Tuticorin copper smelter for violating environmental regulations in a sensitive coastal area of Tamil Nadu state. The smelter, which was built in 1996, is located 15 kilometers from the Gulf of Mannar, a national marine park, despite a requirement that it be no closer than 25 kilometers. The company also had failed to develop a 250 meter green belt around the plant. The decision sent shock waves through the Bombay Stock Exchange. The head of research for JPMorgan India, Jahangir Aziz, stated that “Somebody has to be made an example of. They ran into some judges who said: ‘Enough is enough. Nobody is doing anything [to enforce environmental laws] so we are’.” Amy Kazmin, Fresh Blow to Vedanta’s Battered Green Credentials, Financial Times, Sept. 29, 2010. On Friday October 1 the Supreme Court of India granted a temporary stay of the lower court’s order to close the smelter until a hearing on October 18.
Last week the U.S. Environmental Protection Agency (EPA) and the Department of Transportation (DOT) proposed a dramatic increase in U.S. fuel economy standards to require vehicles to average as much as 62 miles per gallon by the year 2025. The agencies are seeking public comment on this proposal. Regulations they issued in April require vehicles to average 35 mpg by model year 2016. The Wall Street Journal reported that General Motors Company, which is now 61% controlled by the U.S. government, is accelerating plans for a new, more fuel-efficient, line of large sport utility vehicles. Siobhan Hughes & Sharon Terlep, GM Plans New SUVs Ahead of Fuel Goals, Wall Street J., Oct. 2-3, 2010, at 1.
Monday, September 27, 2010
Millennium Development Goals, Clean Cookstove Initiative, Global Spread of GMO Crops & Carbon Disclosure’s “Global 500” (By Bob Percival)
Last week world leaders gathered to review their progress in meeting the Millennium Development Goals (MDGs), eight internationally-agreed goals aimed at reducing poverty and improving education, health, gender equality and environmental sustainability by 2015. While progress toward achieving the goals has been uneven, the U.N. Development Programme (UNDP) announced an MDG Acceleration Framework to speed progress. Ten pilot countries from different regions have selected off-track targets as their focus areas and identified the constraints to faster progress, practical solutions to address them, and partners to implement these solutions. A report describing the results of these pilots is available online here: UnlockingProgress_MAF Lessons from Pilot_Countries_September 2010-2.pdf. The Summit on the Millennium Development Goals concluded with the adoption of a global action plan to achieve the eight anti-poverty goals and new commitments for women and children’s health, as described online at: http://www.un.org/millenniumgoals/ The new global commitments were met with considerable skepticism in many quarters.
Last week the Global Alliance for Clean Cookstoves was announced by Secretary of State Hillary Clinton, joined by representatives of the UN Foundation, several nations and many NGOs. The initiative seeks to replace 100 million traditional stoves that are widely used for cooking and heating in households across the developing world with affordable, efficient, environmentally-friendly models by 2020. The World Health organization estimates that pollution and safety hazards from existing cookstoves contribute to 2 million premature deaths annually in the developing world. The stoves also are a significant source of black carbon contributing to global warming and climate change. The Global Alliance will seek to establish manufacturing facilities in developing countries to make the stoves readily available at low cost while spurring job growth in development countries. The initiative represents another example of the development of global environmental policy outside traditional government regulatory structures. Products like cookstoves that are used by individuals have not been extensively regulated around the world, yet they can represent highly significant sources of environmental problems. By not giving away the stoves for free, the Alliance has indicated that it has learned from past mistakes where free distribution of stoves led consumers not to value them very highly.
Last week the Wall Street Journal published data showing how extensive the use of genetically modified crops has become throughout the world. In the U.S. more than 80% of soybean, cotton and corn crops are genetically modified now with nearly 160 million acres of GMO crops planted. Brazil is second in GMO acreage with 52.9 million acres, followed by Argentina with 52.6 million acres, India with 20.8 million acres (cotton), Canada with 20.3 million acres, China with 9.1 million acres, Paraguay with 5.4 million acres (soybeans).
Last week the Carbon Disclosure Project identified a “global 500” of companies that have begun to report their emissions of greenhouse gases (GHGs). The project disclosed that fewer than one-fifth of these companies had made significant progress in reducing their emissions of GHGs.
Last week the Global Alliance for Clean Cookstoves was announced by Secretary of State Hillary Clinton, joined by representatives of the UN Foundation, several nations and many NGOs. The initiative seeks to replace 100 million traditional stoves that are widely used for cooking and heating in households across the developing world with affordable, efficient, environmentally-friendly models by 2020. The World Health organization estimates that pollution and safety hazards from existing cookstoves contribute to 2 million premature deaths annually in the developing world. The stoves also are a significant source of black carbon contributing to global warming and climate change. The Global Alliance will seek to establish manufacturing facilities in developing countries to make the stoves readily available at low cost while spurring job growth in development countries. The initiative represents another example of the development of global environmental policy outside traditional government regulatory structures. Products like cookstoves that are used by individuals have not been extensively regulated around the world, yet they can represent highly significant sources of environmental problems. By not giving away the stoves for free, the Alliance has indicated that it has learned from past mistakes where free distribution of stoves led consumers not to value them very highly.
Last week the Wall Street Journal published data showing how extensive the use of genetically modified crops has become throughout the world. In the U.S. more than 80% of soybean, cotton and corn crops are genetically modified now with nearly 160 million acres of GMO crops planted. Brazil is second in GMO acreage with 52.9 million acres, followed by Argentina with 52.6 million acres, India with 20.8 million acres (cotton), Canada with 20.3 million acres, China with 9.1 million acres, Paraguay with 5.4 million acres (soybeans).
Last week the Carbon Disclosure Project identified a “global 500” of companies that have begun to report their emissions of greenhouse gases (GHGs). The project disclosed that fewer than one-fifth of these companies had made significant progress in reducing their emissions of GHGs.
Sunday, September 19, 2010
9th IUCN Academy Colloquium, 9th Circuit Rejects Nigerian Suit Against Chevron (by Bob Percival)
This week the 8th Annual Colloquium of the IUCN Academy of Environmental Law, the premier gathering of environmental law professors from around the world, was held at the University of Ghent in the historic and beautiful city of Ghent, Belgium. I arrived in Ghent on Tuesday morning September 16 after a short train ride from the Brussels airport. As usual with these colloquia, the participants were a vibrant and diverse group of nearly 200 environmental law experts from 34 countries throughout the world. More than 100 presentations were made during three plenary sessions and 34 panels.
On Tuesday afternoon I chaired a panel on “Biodiversity and Climate Change: Poverty, Ethics and Justice”. On the panel were Professor Mekete Bekele Tekle from the University of Addis Ababa in Ethiopia, Professor Jose Juan Gonzalez Marquez from the Universidad Autonoma Metropolitana in Mexico City, and Ph.D. candidate Julien Bétaille from the University of Limoges in France. Mekete gave a powerful explanation of the multiple environmental problems confronting Ethiopia, one of the poorest countries in the world on track to become the world’s 9th most populous country by 2050. Jose Juan made a provocative proposal for global payments to compensate residents of poor areas of southern Mexico for agreeing to preserve habitat. Julien discussed the Draft Convention on the International Status of Environmentally-Displaced Persons, which has been developed by professors from the University of Limoges with contributions from legal experts from several countries. The presentations were followed by a lively discussion with a highly sophisticated audience of legal experts from around the world.
On Tuesday evening participants in the Colloquium were treated to a reception at Ghent’s historic Town Hall (Stadhuis), a short walk from the University of Ghent’s School of Law where the colloquium was held. The group was welcomed by the city alderman and treated to light refreshments. At the reception it was announced that Professor Jamie Benidickson from the University of Ottawa had been awarded the Academy’s senior scholarship prize in part for his book The Culture of Flushing: A Social and Legal History of Sewage (UBC Press, 2007).
On Wednesday morning I made a presentation on “Protection of Biodiversity, Climate Change and Emerging Global Environmental Law.” I emphasized that climate change is posing a fundamental challenge to models for protecting biodiversity premised on protecting habitats from more localized impacts of development. I discussed how biodiversity law is adapting to climate change and how globalization is affecting the evolution of environmental law. With me on the panel were Arie Trouwbourst from Tilburg University in the Netherlands, who discussed the implications of climate change for the Bonn Convention on Migratory Species, and Herwig Unnerstall from the Helmholtz Centre for Environmental Research in Germany, who discussed the impact of climate change on Natura 2000, the European Union’s network of natural areas protected by the 1992 Habitats Directive.
On Wednesday evening the colloquium participants walked across Ghent for a group dinner in the Club of Flanders located in the Crypt of the Saint Pieters Abbey. In this spectacular setting we listened to University of Nairobi Professor Charles Okidi, who has been teaching environmental law for four decades, deliver the annual distinguished lecture. Professor Okidi spoke on “International Legal Responses to Threats to Marine Biological Diversity.” Following the dinner several groups of professors spontaneously performed national songs, inspired initially by the Latin Americans. The large contingent of professors from Australia then regaled the group with a rendition of “Waltzing Matilda”.
The colloquium concluded on Thursday afternoon. A post-lunch session had been planned to enable Tseming Yang to discuss his work at EPA, but he was unable to attend the colloquium at the last minute. The next colloquium will be held from July 3-7, 2011 at the Wild Coast Sun resort, on the East Cape south of Durban, South Africa. The theme of the colloquium will be “Water and the Law: Towards Sustainability”. The University of Maryland School of Law will host the 10th annual colloquium of the Academy in 2012. An album of photos of Ghent and some colloquium events, including a video of the Australian professors singing “Waltzing Matilda,” can be viewed online at: http://gallery.me.com/rperci/100708.
On September 10 the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict denying relief to Nigerian protesters injured in 1998 when Nigerian Government Security Forces evicted them from an offshore drilling platform operated by Chevron. The court found nothing wrong with the jury instructions or evidentiary rulings made by the district court. The court found it unnecessary to decide whether the Death on the High Seas Act preempts wrongful death and survival claims brought under the Alien Tort Claims Act by the families of two protesters who were killed. However, the court did hold that corporations cannot be held liable under the Torture Victim Protection Act because of its reference to “individuals.” The court recognized that this aspect of its decision is in tension with a previous decision by the U.S. Court of Appeals for the 11th Circuit. A copy of the court’s decision in Bowoto v. Chevron Corporation is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-15641.pdf.
On Tuesday afternoon I chaired a panel on “Biodiversity and Climate Change: Poverty, Ethics and Justice”. On the panel were Professor Mekete Bekele Tekle from the University of Addis Ababa in Ethiopia, Professor Jose Juan Gonzalez Marquez from the Universidad Autonoma Metropolitana in Mexico City, and Ph.D. candidate Julien Bétaille from the University of Limoges in France. Mekete gave a powerful explanation of the multiple environmental problems confronting Ethiopia, one of the poorest countries in the world on track to become the world’s 9th most populous country by 2050. Jose Juan made a provocative proposal for global payments to compensate residents of poor areas of southern Mexico for agreeing to preserve habitat. Julien discussed the Draft Convention on the International Status of Environmentally-Displaced Persons, which has been developed by professors from the University of Limoges with contributions from legal experts from several countries. The presentations were followed by a lively discussion with a highly sophisticated audience of legal experts from around the world.
On Tuesday evening participants in the Colloquium were treated to a reception at Ghent’s historic Town Hall (Stadhuis), a short walk from the University of Ghent’s School of Law where the colloquium was held. The group was welcomed by the city alderman and treated to light refreshments. At the reception it was announced that Professor Jamie Benidickson from the University of Ottawa had been awarded the Academy’s senior scholarship prize in part for his book The Culture of Flushing: A Social and Legal History of Sewage (UBC Press, 2007).
On Wednesday morning I made a presentation on “Protection of Biodiversity, Climate Change and Emerging Global Environmental Law.” I emphasized that climate change is posing a fundamental challenge to models for protecting biodiversity premised on protecting habitats from more localized impacts of development. I discussed how biodiversity law is adapting to climate change and how globalization is affecting the evolution of environmental law. With me on the panel were Arie Trouwbourst from Tilburg University in the Netherlands, who discussed the implications of climate change for the Bonn Convention on Migratory Species, and Herwig Unnerstall from the Helmholtz Centre for Environmental Research in Germany, who discussed the impact of climate change on Natura 2000, the European Union’s network of natural areas protected by the 1992 Habitats Directive.
On Wednesday evening the colloquium participants walked across Ghent for a group dinner in the Club of Flanders located in the Crypt of the Saint Pieters Abbey. In this spectacular setting we listened to University of Nairobi Professor Charles Okidi, who has been teaching environmental law for four decades, deliver the annual distinguished lecture. Professor Okidi spoke on “International Legal Responses to Threats to Marine Biological Diversity.” Following the dinner several groups of professors spontaneously performed national songs, inspired initially by the Latin Americans. The large contingent of professors from Australia then regaled the group with a rendition of “Waltzing Matilda”.
The colloquium concluded on Thursday afternoon. A post-lunch session had been planned to enable Tseming Yang to discuss his work at EPA, but he was unable to attend the colloquium at the last minute. The next colloquium will be held from July 3-7, 2011 at the Wild Coast Sun resort, on the East Cape south of Durban, South Africa. The theme of the colloquium will be “Water and the Law: Towards Sustainability”. The University of Maryland School of Law will host the 10th annual colloquium of the Academy in 2012. An album of photos of Ghent and some colloquium events, including a video of the Australian professors singing “Waltzing Matilda,” can be viewed online at: http://gallery.me.com/rperci/100708.
On September 10 the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict denying relief to Nigerian protesters injured in 1998 when Nigerian Government Security Forces evicted them from an offshore drilling platform operated by Chevron. The court found nothing wrong with the jury instructions or evidentiary rulings made by the district court. The court found it unnecessary to decide whether the Death on the High Seas Act preempts wrongful death and survival claims brought under the Alien Tort Claims Act by the families of two protesters who were killed. However, the court did hold that corporations cannot be held liable under the Torture Victim Protection Act because of its reference to “individuals.” The court recognized that this aspect of its decision is in tension with a previous decision by the U.S. Court of Appeals for the 11th Circuit. A copy of the court’s decision in Bowoto v. Chevron Corporation is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-15641.pdf.
Monday, September 13, 2010
German Energy Plan & AICGS Conference, EPA Seeks Fracking Data, China Energy, and Unilever & Maersk Green their Businesses
On Monday, September 13th, I participated in a conference sponsored by the American Institute for Contemporary German Studies (AICGS) as part of its “Transatlantic Climate and Energy Dialogue: Balancing Aspirations with Actions.” The conference was held at the Carnegie Endowment for International Peace in Washington, D.C. After an opening update on climate negotiations from Elliott Diringer of the Pew Center on Global Climate Change, I was on the first panel with my former colleague Miranda Schreurs, who is now the Director of the Environmental Policy Institute at the Freie Universität of Berlin. Miranda discussed the German government’s bold new energy plan that seeks to reduce emissions of greenhouse gases by 40% by 2020, 55% by 2030, 70% by 2040 and 80% by 2050. Environmentalists are upset because the plan would extend the lives of some of the existing nuclear powerplants by 8 to 14 years. See Patrick McGroarty, Germany to Extend Life of Nuclear Reactors, Wall St. J., Sept. 7, 2010, at A17. The plan seeks to obtain 18% of Germany’s primary energy from renewable sources by 2020 and 60% by 2050. Our panel provided “German and U.S. Perspectives on Intellectual Property Rights and Green Technology Transfer”. Also speaking on tech transfer in the second morning panel were Joanna Lewis of Georgetown University’s School of Foreign Service who provided a case study of wind energy in China, Dominic Marcellino of the Ecologic Institute who is tracking tech transfer during the climate negotiations, and Alan Miller of the International Finance Corporation (IFC). Alan, who is one of the co-authors of my environmental law casebook, stressed that while most of the UNFCCC negotiations have focused on public investment in green technology, approximately 80% of the investment is being done by private companies. He explained why the IFC was willing to continue fund state-of-the-art fossil-fueled powerplants despite critics who believe that only renewable energy projects should be funded.
On September 9th, the U.S. Environmental Protection Agency (EPA) sent letters to nine companies requesting detailed data on the chemicals they use in hydraulic fracturing (“fracking”) to crack underground rock formations to release oil and natural gas. The data is to be used as part of a new EPA study of the environmental consequences of fracking. In 2004 EPA released a controversial study finding that the practice was safe, which Congress relied upon to exempt the practice from regulation under the Safe Drinking Water Act. However, there have been many complaints of contamination of underground aquifers near sties where fracking is used, an issued explored by the award-winning documentary film “Gasland” (http://www.pbs.org/now/shows/613/index.html). EPA’s new study, whose results are expected to be published by the end of 2012, is being undertaken in response to a new mandate from Congress. Tom Zeller, Jr., EPA to Study Chemicals Used to Tap Natural Gas, N.Y. Times, Sept. 10, 2010, at B3.
On September 9th the United Steelworkers union filed a 5,800-page complaint with the Office of the U.S. Trade Representative charging that Chinese officials are unfairly subsidizing the production of clean energy technologies, including wind turbines and compact fluorescent light bulbs. Elizabeth Williamson & Ian Talley, Steelworkers Blast China on Subsidies, Wall St. J., Sept. 10, 2010, at A4. Chinese authorities reportedly are scrambling to meet energy efficiency targets contained in the country’s 2006-2010 five-year plan. Faced with the realization that they may come up short of the target, Chinese officials reportedly are even ordering temporary shutdowns of enterprises. Shai Oster, Beijing Gets Tough on Targets for Energy, Wall St. J., Sept. 10, 2010, at A10.
On September 8th, the Unilever Corporation announced that it had made a multi-million dollar investment in Solazyme, Inc., a U.S. company that harvests oil from algae, as a way of moving away from use of palm oil in its food and consumer products. Unilever says that it may take three to seven more years before algal oil could be used as an ingredient in its products, but it is convinced of its potential. Paul Sonne, To Wash Hands of Palm Oil Unilever Embraces Algae, Wall St. J., Sept. 8, 2010, at B1. On September 7th, the Danish shipping company Maersk announced that it would voluntarily switch away from low-cost, dirty bunker fuel to low sulfur fuel when its ships berth in Hong Kong. The move will cost the company an extra $1 million per year during its 850 annual port calls in Hong Kong, but it will greatly reduce air pollution from the ships. Cleaner fuel already is required for ships visiting many European ports and similar requirements will take effect in U.S. and Canadian ports in 2012. Asia is moving much more slowly on the issue and Maersk hopes its Hong Kong initiative, which it said was taken in response to calls from the Hong Kong NGO Civic Exchange, will help spur further action. Bettina Wassener, Maersk to Use Cleaner Fuel in its Hong Kong Shipping, N.Y. Times, Sept. 8, 2010, at B10.
On September 9th, the U.S. Environmental Protection Agency (EPA) sent letters to nine companies requesting detailed data on the chemicals they use in hydraulic fracturing (“fracking”) to crack underground rock formations to release oil and natural gas. The data is to be used as part of a new EPA study of the environmental consequences of fracking. In 2004 EPA released a controversial study finding that the practice was safe, which Congress relied upon to exempt the practice from regulation under the Safe Drinking Water Act. However, there have been many complaints of contamination of underground aquifers near sties where fracking is used, an issued explored by the award-winning documentary film “Gasland” (http://www.pbs.org/now/shows/613/index.html). EPA’s new study, whose results are expected to be published by the end of 2012, is being undertaken in response to a new mandate from Congress. Tom Zeller, Jr., EPA to Study Chemicals Used to Tap Natural Gas, N.Y. Times, Sept. 10, 2010, at B3.
On September 9th the United Steelworkers union filed a 5,800-page complaint with the Office of the U.S. Trade Representative charging that Chinese officials are unfairly subsidizing the production of clean energy technologies, including wind turbines and compact fluorescent light bulbs. Elizabeth Williamson & Ian Talley, Steelworkers Blast China on Subsidies, Wall St. J., Sept. 10, 2010, at A4. Chinese authorities reportedly are scrambling to meet energy efficiency targets contained in the country’s 2006-2010 five-year plan. Faced with the realization that they may come up short of the target, Chinese officials reportedly are even ordering temporary shutdowns of enterprises. Shai Oster, Beijing Gets Tough on Targets for Energy, Wall St. J., Sept. 10, 2010, at A10.
On September 8th, the Unilever Corporation announced that it had made a multi-million dollar investment in Solazyme, Inc., a U.S. company that harvests oil from algae, as a way of moving away from use of palm oil in its food and consumer products. Unilever says that it may take three to seven more years before algal oil could be used as an ingredient in its products, but it is convinced of its potential. Paul Sonne, To Wash Hands of Palm Oil Unilever Embraces Algae, Wall St. J., Sept. 8, 2010, at B1. On September 7th, the Danish shipping company Maersk announced that it would voluntarily switch away from low-cost, dirty bunker fuel to low sulfur fuel when its ships berth in Hong Kong. The move will cost the company an extra $1 million per year during its 850 annual port calls in Hong Kong, but it will greatly reduce air pollution from the ships. Cleaner fuel already is required for ships visiting many European ports and similar requirements will take effect in U.S. and Canadian ports in 2012. Asia is moving much more slowly on the issue and Maersk hopes its Hong Kong initiative, which it said was taken in response to calls from the Hong Kong NGO Civic Exchange, will help spur further action. Bettina Wassener, Maersk to Use Cleaner Fuel in its Hong Kong Shipping, N.Y. Times, Sept. 8, 2010, at B10.
Monday, September 6, 2010
Burger King Greens Palm Oil Supplies, IPCC Reforms, Russia Wheat Export Ban, India Reopens Bhopal Case & Passes Nuclear Liability Law (by Bob Percival
Last week Burger King delighted environmentalists by announcing that it would discontinue purchasing palm oil from Indonesia’s Sinar Mas group in response to an audit assessing the impact of the company’s behavior on orangutan habitat and tropical rain forests. The audit was discussed on this website in a blog post on August 15, 2010. Curiously, Cargill, another major global agribusiness, cited the same audit in refusing to cut its ties to Sinar Mas companies, which are controlled by the Widjaja family. Cargill noted that Sinar Mas has pledged to join the Roundtable for Sustainable Palm Oil (RSPO) and to obtain its certification for all its palm oil operations by 2015. Burger King joins Unilever, Nestle and Kraft in cutting off SInar Mas as a supplier. Anthony Deutsch, Burger King Axes Palm Oil Supplier, Financial Times, Sept. 4/5, 2010at 10. While in Miami last week I spotted a clever Burger King ad on the side of a downtown building near the arena where the Miami Heat basketball team plays. The ad features the smiling Burger King mascot welcoming LeBron James to Miami by saying “King to King: Welcome to My Court.”
Last Monday the group appointed by the InterAcademy Council to review the work of the Intergovernmental Panel on Climate Change (IPCC) recommended that the IPCC improve its capacity to ferret out errors. The panel recommended that the IPCC exercise greater caution in using non peer-reviewed studies and that they more openly discuss dissenting views. Next month the governments that control the IPCC will meet in South Korea to discuss what action to take.
Last week Russia extended its ban on wheat exports until late 2011. The ban was undertaken in part as a response to drought, record heat and rampant wildfires that have destroyed significant parts of the country’s wheat crop. Despite food riots that occurred in Mozambique last Wednesday when the government raised bread prices by 30 percent, global stockpiles of wheat are much greater than they were two years ago, though global wheat prices are up more than 60 percent over the last year. Noting that food prices have risen 5 percent in the last month, the UN Food and Agriculture Organization (FAO) has scheduled a special meeting for September 24 in Rome to discuss global food prices.
Last Tuesday the Supreme Court of India reopened the Bhopal prosecutions after an outcry that the defendants had received sentences that were too light. In June seven former Union Carbide executives were sentenced to two years imprisonment and fines after being convicted of criminal negligence. Following an appeal by India’s Central Bureau of Investigation, the Court said that it would reconsider its 1996 decision that had reduced charges of culpable homicide to criminal negligence. The initial charges could have resulted in prison sentences of up to 10 years. Amy Kazmin, India’s Senior Judges Reopen Bhopal Case, Financial Times, Sept. 1, 2010, at 4. The decision came one day after India’s Parliament approved legislation governing liability for nuclear power accidents. The Indian legislation holds open the possibility that suppliers of equipment for nuclear powerplants can be held liable for accidents, rather than placing liability entirely on the plant’s operators. Jim Yardley, Nuclear Deal Is Approved in India, With Compromises, N.Y. Times, Aug. 31, 2010, at A4.
Last Monday the group appointed by the InterAcademy Council to review the work of the Intergovernmental Panel on Climate Change (IPCC) recommended that the IPCC improve its capacity to ferret out errors. The panel recommended that the IPCC exercise greater caution in using non peer-reviewed studies and that they more openly discuss dissenting views. Next month the governments that control the IPCC will meet in South Korea to discuss what action to take.
Last week Russia extended its ban on wheat exports until late 2011. The ban was undertaken in part as a response to drought, record heat and rampant wildfires that have destroyed significant parts of the country’s wheat crop. Despite food riots that occurred in Mozambique last Wednesday when the government raised bread prices by 30 percent, global stockpiles of wheat are much greater than they were two years ago, though global wheat prices are up more than 60 percent over the last year. Noting that food prices have risen 5 percent in the last month, the UN Food and Agriculture Organization (FAO) has scheduled a special meeting for September 24 in Rome to discuss global food prices.
Last Tuesday the Supreme Court of India reopened the Bhopal prosecutions after an outcry that the defendants had received sentences that were too light. In June seven former Union Carbide executives were sentenced to two years imprisonment and fines after being convicted of criminal negligence. Following an appeal by India’s Central Bureau of Investigation, the Court said that it would reconsider its 1996 decision that had reduced charges of culpable homicide to criminal negligence. The initial charges could have resulted in prison sentences of up to 10 years. Amy Kazmin, India’s Senior Judges Reopen Bhopal Case, Financial Times, Sept. 1, 2010, at 4. The decision came one day after India’s Parliament approved legislation governing liability for nuclear power accidents. The Indian legislation holds open the possibility that suppliers of equipment for nuclear powerplants can be held liable for accidents, rather than placing liability entirely on the plant’s operators. Jim Yardley, Nuclear Deal Is Approved in India, With Compromises, N.Y. Times, Aug. 31, 2010, at A4.
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