Republicans in the U.S. House of Representatives tried this week to repeal the energy efficiency mandate for light bulbs that was enacted with bipartisan support in the Energy Independence and Security Act of 2007. The Better Use of Light Bulbs (BULB) Act, sponsored by Congressman Joe Barton (R-Tex.), would have repealed the mandate to improve light bulb energy efficiency by 27-29% through 2014 and by 60-70% by 2020. These mandates are expected to phase out highly inefficient incandescent light bulbs that waste 80 percent of their energy in creating heat rather than light. Congressman Fred Upton (R-Ill.), who had sponsored the mandates in 2007, now supported the effort to repeal them. When it was brought up under special rules on July 12 that required two-thirds approval, the repeal effort failed by gaining a majority of only 233-193. Later in the week an appropriations rider that would delay the mandates from January 1 to October 1, 2012 was adopted by voice vote in the House. It would prohibit the federal government from spending any money to enforce the mandates during the next fiscal year. The National Electrical Manufacturers Association opposed efforts to change the mandates because it would penalize companies that have made investments in anticipation of the new rules taking effect.
On July 12 outspoken Indian Minister of Environment and Forests Jairam Ramesh was removed from his position by Indian Prime Minister Manmohan Singh. Press reports suggest that the move was motivated by the Prime Minister’s desire to speed up development projects that Ramesh had placed on hold for failure to comply with environmental requirements. Amol Sharma, India Fires Environment Minister Who Held Up Projects, Wall St. J., July 13, 2011. Succeeding Ramesh as the new Minister of Environment and Forests is Jayanti Natarajan. Ramesh was “promoted” to oversee the cabinet-level Ministry of Rural Development. Environmentalists are cautiously optimistic that Natarajan will prove to be a worthy successor to Ramesh.
Last week the International Whaling Commission (IWC) held its 63rd annual meeting on the Channel Island of Jersey. Fifty-four of the 89 countries that are members of the Commission (with Colombia being the latest to join) were present for the commission of the meeting. The Commission made no changes to the present limits on aboriginal subsistence whaling. It adopted a resolution condemning any actions at sea that create risks to human life and property. The Commission deferred action on a proposal to create a South Atlantic Sanctuary after it became apparent that the necessary support of three-quarters of the voting members was lacking. Next year’s meeting will be held in Panama from June 11 to July 6, 2012, but after that meeting the Commission is likely to meet only once every two years and it may start to hold meetings of the Scientific Committee separately from, and in advance of, the Commission meeting.
Within days of each other, two U.S. Courts of Appeals expressly rejected the conclusion by the Second Circuit in its September 2010 Kiobel decision that corporations cannot violate the law of nations and thus are immune from liability under the Alien Tort Statute (ATS). As noted in last week’s blog post (July 11), on July 8 the D.C. Circuit ruled in Doe v. ExxonMobil Corp., No. 09-7125, that corporations can be held liable under the ATS for aiding and abetting actions by governments in violation of the law of nations. On July 11 the Seventh Circuit, in an opinion written by Judge Richard Posner, also rejected Kiobel. In Flomo v. Firestone Natural Rubber Co., No. 10-3675 (7th Cir.), the court recognized that the issue of corporate liability under the ATS “seems to have been left open” by the U.S. Supreme Court “in an enigmatic footnote in Sosa, 542 U.S. at 732 n.20.” However, Judge Posner then expressly rejected Kiobel’s premise that because corporations have never been prosecuted for violating customary international law there cannot be any principle of customary international law that binds a corporation. First, he noted that the allied powers used customary international law to dissolve German corporations that had assisted the Nazi war effort. Second, he concluded that even if such prosecutions have been rare, that does not mean that corporations are exempt from customary international law. While opining that corporate liability would be extended too far if companies were strictly liable for anything that an employee did in a developing country, Posner stated that there was no problem holding companies liable for violations “directed, encouraged or condoned at the corporate defendant’s decisionmaking level.” (The plaintiffs in Flomo allege that Firestone used child labor on its rubber plantations in violation of customary international law). Judge Posner declared that an argument that it would be “bad for business” to hold corporations liable under the ATS, was “irrelevant, but not obvious,” noting that companies that do not use child labor are hurt when competitors are not held liable for doing so. However, the Seventh Circuit panel ultimately concluded that there was insufficient evidence to hold Firestone liable for violation of customary international law.
Monday, July 18, 2011
Monday, July 11, 2011
9th IUCN Academy Colloquium, David Getches, D.C. Circuit Rejects Kiobel, Australia Carbon Tax (by Bob Percival)
I returned to the U.S. over the weekend after participating in the 9th annual Colloquium of the IUCN Academy of Environmental Law in South Africa. The Colloquium was held from July 3-7 at the Mpekweni Beach Resort east of Port Elizabeth on the southern coast of South Africa. The theme of this year’s colloquium was “Water and the Law: Towards Sustainability.” In keeping with the theme, the conference featured several days of heavy rain, broken by brief bursts of sunshine, something that was supposedly quite unusual in this very dry part of South Africa. Despite the remote location, by my count the Colloquium had 150 participants from 30 countries.
On July 4 I chaired a session of the conference on “Climate Change and Water Management,” which featured presentations by Linda Malone from William & Mary, Antia Foerster from the University of Melbourne, Jose Juan Gonzalez from the Universidad Autonoma Metropolitana in Mexico City, and Rob Fowler from the University of South Australia. On Tuesday night the colloquium featured a winetasting of South African wines. I contributed a bottle of Zevenwacht gewurztraminer that I had purchased while doing a one-day tour of the Cape Winelands in Stellenbosch, Franschhoek and Paarl on the previous Saturday.
Shortly before I was due to give my talk on Wednesday on “Transboundary Water Management and the Emergence of Global Environmental Law,” I was greatly shocked and saddened to learn of the death of David Getches, dean of the University of Colorado School of Law. David was one of the real giants in the field of environmental law and also a truly wonderful human being. I last communicated with him in March when he very kindly invited me to visit at Colorado next year. Although my prior commitments precluded such a visit, I shared with him my fondness for the Rocky Mountains born from many childhood summers in Rocky Mountain National Park. I thought it only fitting at the start of my presentation to the Colloquium to pay tribute to David. The audience from all over the world immediately responded by expressing their enormous regard for him.
I have attended eight of the nine Academy Colloquium (all but the first one that was held in Shanghai in 2003 on very short notice) and once again it was a terrific experience. Nearly 100 high quality presentations were made and the opportunities to network and exchange views with environmental law scholars from all over the world were invaluable. The U.S. law schools represented at the Colloquium included Maryland, Lewis & Clark, Pace, Widener, Willamette, and William & Mary. More are likely to participate in the 10th Colloquium, which will be held next year from July 1-5 at the University of Maryland School of Law. The theme for next year’s colloquium, which will be held one month after the Rio+20 Earth Summit will be “Global Environmental Law at a Crossroads.” For more information about this theme and the 10th Colloquium visit: http://www.law.umaryland.edu/iucnael2012.
At the closing plenary session I was invited to give a presentation on plans for the 10th Colloquium. We are planning several great events, including an opening dinner at the National Aquarium, a crab cruise on Baltimore Harbor during the 4th of July fireworks celebration, our program’s annual winetasting event, and a field trip to an Orioles game (schedule permitting). In addition we will be hosting an international environmental law film festival. To show how easy it is to make a film, while at the 9th Colloquium I made a film trailer promoting the 10th Colloquium that I showed during the closing plenary. It features clips of participants in the 9th Colloquium urging everyone to “Come to Maryland” in more than 20 different languages. A copy of the trailer is online at: http://law.umaryland.edu/iucnael2012.
The schedule for future colloquia was announced at the 9th Colloquium. In 2013 the 11th Colloquium will be held at the University of the South Pacific in Vanuatu. In 2014 the 12th Colloquium will be held at the University of Taragona in Catalonia. On the way to the airport on July 8, I joined many conference participants in a terrific tour of Addo Elephant National Park near Port Elizabeth. We saw lots of wildlife, including elephants, antelope, zebras, eiland, and warthogs. Photos of my trip to Africa, including the visit to Robben Island, the tour of the Cape WInelands and the trip to Addo Elephant National Park, are available online at: http://gallery.me.com/rperci#100879
On July 9 the U.S. Court of Appeals for the D.C. Circuit held that corporations can be held liable for violations of the law of nations. In Doe v. ExxonMobil Corp., No. 09-7125 (D.C. Cir. July 9, 2011), the court by a 2-1 vote rejected the Second Circuit’s Kiobel decision that had held that corporations are incapable of violating the law of nations. Plaintiffs in the case inclued villagers from the Aceh territory of Indonesia who alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), and various common law torts. In an opinion by Judge Rogers, joined by Judge Tatel, the court held that “neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.” The court affirmed the dismissal of the TVPA claims, but reversed the district court’s holding that the plaintiffs lacked prudential standing to bring their non-federal tort claims. Judge Kavanaugh dissented. The decision creates a clear conflict with the Second Circuit’s Kiobel decision, making it increasingly likely that the Supreme Court will have to decide whether corporations can be held liable under the Alien Tort Statute for violating the law of nations. The decision also rejects the trial court’s suggestion that non-resident aliens automatically lack prudential standing to sue because they are not within the zone of interests protected by U.S. law. A copy of the decision is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/567B411C56CD7A6F852578C700513FC8/$file/09-7125-1317431.pdf
On July 10 Australian Prime Minister Julia Gillard proposed a carbon tax of 23 Australian dollars per ton on Australia’s top 500 emitters of greenhouse gases. The tax, which would go into effect in mid-2012, would increase by 2.5% per year until 2015 when a market-based emissions trading scheme will go into effect.
On July 4 I chaired a session of the conference on “Climate Change and Water Management,” which featured presentations by Linda Malone from William & Mary, Antia Foerster from the University of Melbourne, Jose Juan Gonzalez from the Universidad Autonoma Metropolitana in Mexico City, and Rob Fowler from the University of South Australia. On Tuesday night the colloquium featured a winetasting of South African wines. I contributed a bottle of Zevenwacht gewurztraminer that I had purchased while doing a one-day tour of the Cape Winelands in Stellenbosch, Franschhoek and Paarl on the previous Saturday.
Shortly before I was due to give my talk on Wednesday on “Transboundary Water Management and the Emergence of Global Environmental Law,” I was greatly shocked and saddened to learn of the death of David Getches, dean of the University of Colorado School of Law. David was one of the real giants in the field of environmental law and also a truly wonderful human being. I last communicated with him in March when he very kindly invited me to visit at Colorado next year. Although my prior commitments precluded such a visit, I shared with him my fondness for the Rocky Mountains born from many childhood summers in Rocky Mountain National Park. I thought it only fitting at the start of my presentation to the Colloquium to pay tribute to David. The audience from all over the world immediately responded by expressing their enormous regard for him.
I have attended eight of the nine Academy Colloquium (all but the first one that was held in Shanghai in 2003 on very short notice) and once again it was a terrific experience. Nearly 100 high quality presentations were made and the opportunities to network and exchange views with environmental law scholars from all over the world were invaluable. The U.S. law schools represented at the Colloquium included Maryland, Lewis & Clark, Pace, Widener, Willamette, and William & Mary. More are likely to participate in the 10th Colloquium, which will be held next year from July 1-5 at the University of Maryland School of Law. The theme for next year’s colloquium, which will be held one month after the Rio+20 Earth Summit will be “Global Environmental Law at a Crossroads.” For more information about this theme and the 10th Colloquium visit: http://www.law.umaryland.edu/iucnael2012.
At the closing plenary session I was invited to give a presentation on plans for the 10th Colloquium. We are planning several great events, including an opening dinner at the National Aquarium, a crab cruise on Baltimore Harbor during the 4th of July fireworks celebration, our program’s annual winetasting event, and a field trip to an Orioles game (schedule permitting). In addition we will be hosting an international environmental law film festival. To show how easy it is to make a film, while at the 9th Colloquium I made a film trailer promoting the 10th Colloquium that I showed during the closing plenary. It features clips of participants in the 9th Colloquium urging everyone to “Come to Maryland” in more than 20 different languages. A copy of the trailer is online at: http://law.umaryland.edu/iucnael2012.
The schedule for future colloquia was announced at the 9th Colloquium. In 2013 the 11th Colloquium will be held at the University of the South Pacific in Vanuatu. In 2014 the 12th Colloquium will be held at the University of Taragona in Catalonia. On the way to the airport on July 8, I joined many conference participants in a terrific tour of Addo Elephant National Park near Port Elizabeth. We saw lots of wildlife, including elephants, antelope, zebras, eiland, and warthogs. Photos of my trip to Africa, including the visit to Robben Island, the tour of the Cape WInelands and the trip to Addo Elephant National Park, are available online at: http://gallery.me.com/rperci#100879
On July 9 the U.S. Court of Appeals for the D.C. Circuit held that corporations can be held liable for violations of the law of nations. In Doe v. ExxonMobil Corp., No. 09-7125 (D.C. Cir. July 9, 2011), the court by a 2-1 vote rejected the Second Circuit’s Kiobel decision that had held that corporations are incapable of violating the law of nations. Plaintiffs in the case inclued villagers from the Aceh territory of Indonesia who alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), and various common law torts. In an opinion by Judge Rogers, joined by Judge Tatel, the court held that “neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.” The court affirmed the dismissal of the TVPA claims, but reversed the district court’s holding that the plaintiffs lacked prudential standing to bring their non-federal tort claims. Judge Kavanaugh dissented. The decision creates a clear conflict with the Second Circuit’s Kiobel decision, making it increasingly likely that the Supreme Court will have to decide whether corporations can be held liable under the Alien Tort Statute for violating the law of nations. The decision also rejects the trial court’s suggestion that non-resident aliens automatically lack prudential standing to sue because they are not within the zone of interests protected by U.S. law. A copy of the decision is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/567B411C56CD7A6F852578C700513FC8/$file/09-7125-1317431.pdf
On July 10 Australian Prime Minister Julia Gillard proposed a carbon tax of 23 Australian dollars per ton on Australia’s top 500 emitters of greenhouse gases. The tax, which would go into effect in mid-2012, would increase by 2.5% per year until 2015 when a market-based emissions trading scheme will go into effect.
Belated July 3 Post -IUCN South Africa Colloquium, Eskom Protest, Supreme Court Wetlands Case, German Nuclear Power Phaseout (by Bob Percival)
This post was written on July 3, but due to poor internet connections in rural South Africa, it was not posted until July 11.
I am in South Africa now for the annual Colloquium of the IUCN Academy of Environmental Law. This year for the first time the Colloquium is being co-sponsored by four South African law schools - North-West University, the University of Cape Town, the University of Kwa-Zulu Natal, and the University of Witwatersrand. It is being held in a rather remote part of the South African coast at the Mpekweni Beach Resort several hours east of Port Elizabeth. I arrived at the resort today after spending three days in Cape Town. (Because of the poor internet access, I was not able to post this report until July 11).
While in Cape Town I visited Robben Island, the island several miles off the coast where Nelson Mandela was imprisoned for 18 years. A high-speed ferry takes one-half hour to reach the island where visitors are placed on buses for a tour. Now that the prison has closed down, the island is somewhat of a nature reserve and we spotted a group of penguins from the bus. The bus stopped at important sites on the island including the limestone quarry where Mandela and his fellow political prisoners were forced to work for many years. The bus then ends up at the prison where visitors are given a tour led by a former inmate who also was a political prisoner. The tour includes a visit to the cell where Mandela was held. Shortly after I got off the bus I heard someone call my name and discovered that it was Charles Di Leva, chief counsel for the Environmental and International Law Unit of the World Bank. Charles and other World Bank officials were in Cape Town for the 2011 Climate Investment Fund (CIF) Partnership Forum, hosted by the African Development Bank. At the CIF Forum, which was held at the convention center across the street from the hotel where I was staying, new initiatives were announced to promote renewable energy development in Africa, including a concentrated solar powerplant in Morocco.
The day before I arrived in South Africa, Greenpeace protested the construction of two large new coal-fired powerplant by South African electric utility Eskom by dumping three truckloads of coal in front of Eskom’s headquarters in Johannesburg. Eskom is planning to build the 4,800-megawatt (MW) Kusile plant and the 4,788 MV Medupi plant. The World Bank has helped fund the project, which has been heavily criticized by environmentalists for increasing greenhouse gas emissions. Eskom and the Bank argue that South Africa needs to exploit its extensive coal resources and that the plants will use highly efficient super-critical combustion technology. Greenpeace activists argue that Eskom has made only token investments in renewable energy, including 100 MV of wind power and 100 MV of solar. South Africa, which is growing rapidly, relies on coal for 90% of its electrical generation. While Eskom had hoped to build more nuclear powerplants, the Japanese nuclear accident has cast those plans into doubt.
On July 1 the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to the Obama administration’s effort to kill Yucca Mountain, Nevada as a repository for storing the country’s high-level radioactive waste. The court held that the lawsuit brought by three state and local governmental units in South Carolina and Washington state was not ripe for judicial review until the Nuclear Regulatory Commission (NRC) takes final action that is judicially reviewable. In Re Aiken County, No. 10-1050 (D.C. Cir. July 1, 2011). Even though the U.S. Department of Energy has withdrawn its license application for Yucca Mountain on orders from President Obama, the judges noted that since the NRC is an independent agency, the final decision on the matter rests with the NRC and not the president.
On June 27, the last day of its October 2010 Term, the U.S. Supreme Court agreed to decide another environmental case. The Court granted review in Sackett v. U.S. Environmental Protection Agency, No. 10-1062. The case involves the question whether a failure to grant a hearing to challenge a wetlands determination under §404 of the Clean Water Act prior to EPA’s issuance of a compliance order is a violation of the Administrative Procedure Act (APA) or a denial of due process. The Ninth Circuit had upheld a district court decision that the Clean Water Act precludes pre-enforcement review of compliance orders. The Court’s decision to review the case is somewhat surprising in light of its refusal to hear a similar issue involving pre-enforcement review under CERCLA (see June 12 blog post).
On June 30 the German Parliament overwhelmingly approved the government’s plan to shut down all the country’s nuclear powerplants by the year 2022. The vote in favor of the government’s plan was 513-79. The decision represents a dramatic change in the government’s policy, which previously had supported extending the operating life of existing nuclear powerplants until this year’s nuclear accident in Japan. It will require Germany to be even more aggressive in the development of renewable energy sources. By 2020 Germany plans to generate 35% of its energy from hydro, wind, solar and biogas projects.
I am in South Africa now for the annual Colloquium of the IUCN Academy of Environmental Law. This year for the first time the Colloquium is being co-sponsored by four South African law schools - North-West University, the University of Cape Town, the University of Kwa-Zulu Natal, and the University of Witwatersrand. It is being held in a rather remote part of the South African coast at the Mpekweni Beach Resort several hours east of Port Elizabeth. I arrived at the resort today after spending three days in Cape Town. (Because of the poor internet access, I was not able to post this report until July 11).
While in Cape Town I visited Robben Island, the island several miles off the coast where Nelson Mandela was imprisoned for 18 years. A high-speed ferry takes one-half hour to reach the island where visitors are placed on buses for a tour. Now that the prison has closed down, the island is somewhat of a nature reserve and we spotted a group of penguins from the bus. The bus stopped at important sites on the island including the limestone quarry where Mandela and his fellow political prisoners were forced to work for many years. The bus then ends up at the prison where visitors are given a tour led by a former inmate who also was a political prisoner. The tour includes a visit to the cell where Mandela was held. Shortly after I got off the bus I heard someone call my name and discovered that it was Charles Di Leva, chief counsel for the Environmental and International Law Unit of the World Bank. Charles and other World Bank officials were in Cape Town for the 2011 Climate Investment Fund (CIF) Partnership Forum, hosted by the African Development Bank. At the CIF Forum, which was held at the convention center across the street from the hotel where I was staying, new initiatives were announced to promote renewable energy development in Africa, including a concentrated solar powerplant in Morocco.
The day before I arrived in South Africa, Greenpeace protested the construction of two large new coal-fired powerplant by South African electric utility Eskom by dumping three truckloads of coal in front of Eskom’s headquarters in Johannesburg. Eskom is planning to build the 4,800-megawatt (MW) Kusile plant and the 4,788 MV Medupi plant. The World Bank has helped fund the project, which has been heavily criticized by environmentalists for increasing greenhouse gas emissions. Eskom and the Bank argue that South Africa needs to exploit its extensive coal resources and that the plants will use highly efficient super-critical combustion technology. Greenpeace activists argue that Eskom has made only token investments in renewable energy, including 100 MV of wind power and 100 MV of solar. South Africa, which is growing rapidly, relies on coal for 90% of its electrical generation. While Eskom had hoped to build more nuclear powerplants, the Japanese nuclear accident has cast those plans into doubt.
On July 1 the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to the Obama administration’s effort to kill Yucca Mountain, Nevada as a repository for storing the country’s high-level radioactive waste. The court held that the lawsuit brought by three state and local governmental units in South Carolina and Washington state was not ripe for judicial review until the Nuclear Regulatory Commission (NRC) takes final action that is judicially reviewable. In Re Aiken County, No. 10-1050 (D.C. Cir. July 1, 2011). Even though the U.S. Department of Energy has withdrawn its license application for Yucca Mountain on orders from President Obama, the judges noted that since the NRC is an independent agency, the final decision on the matter rests with the NRC and not the president.
On June 27, the last day of its October 2010 Term, the U.S. Supreme Court agreed to decide another environmental case. The Court granted review in Sackett v. U.S. Environmental Protection Agency, No. 10-1062. The case involves the question whether a failure to grant a hearing to challenge a wetlands determination under §404 of the Clean Water Act prior to EPA’s issuance of a compliance order is a violation of the Administrative Procedure Act (APA) or a denial of due process. The Ninth Circuit had upheld a district court decision that the Clean Water Act precludes pre-enforcement review of compliance orders. The Court’s decision to review the case is somewhat surprising in light of its refusal to hear a similar issue involving pre-enforcement review under CERCLA (see June 12 blog post).
On June 30 the German Parliament overwhelmingly approved the government’s plan to shut down all the country’s nuclear powerplants by the year 2022. The vote in favor of the government’s plan was 513-79. The decision represents a dramatic change in the government’s policy, which previously had supported extending the operating life of existing nuclear powerplants until this year’s nuclear accident in Japan. It will require Germany to be even more aggressive in the development of renewable energy sources. By 2020 Germany plans to generate 35% of its energy from hydro, wind, solar and biogas projects.
Sunday, June 26, 2011
INECE Conference, Chilean Dams, Rotterdam COP-5, Asbestos Use in Asia (by Bob Percival)
On Friday I returned to D.C. after spending the week in Whistler, British Columbia at the 9th Conference of the International Network for Environmental Compliance and Enforcement (INECE). The conference was a remarkable gathering of nearly 200 environmental enforcement officials and NGO representatives from 46 countries. One could see visible evidence of the growing networks that are forming to enhance coordination of environmental enforcement throughout the world. One theme that was discussed was how reductions in government enforcement budgets have increased the importance of global cooperation among regulators and NGOs as agencies seek to employ new and creative means for improving environmental compliance. Criminal enforcement of environmental laws is still in its infancy in many countries, but the U.S. EPA recently hosted enforcement officials from 11 countries for a conference on the use of forensic evidence in the prosecution of environmental crimes. Other themes emphasized by presenters included the importance of reducing bureaucratic barriers to the transboundary sharing of information among enforcement officials and the need for environmental officials to work closely with Customs and border enforcement personnel. I served as the rapporteur for a session on the role of academic institutions in environmental compliance and enforcement networks. Photos from my trip to Vancouver and Whistler are available online at: http://gallery.me.com/rperci#100866.
As mentioned last week (see June 21 blog post), the Chilean government’s plan to build the $3.2billion HidroAysén hydropower project involving the construction of five dams in Patagonia has been the subject of considerable public protest in that environmentally-conscious country. A Chilean appeals court has now blocked the project on the ground that the government commission that approved it had not adequately considered its environmental impact.
On June 22 the International Energy Agency, a consortium of oil-consuming countries, announced that it would release two million barrels of oil per day during the month of July from reserves maintained by member countries. Half of this 60 million barrels of oil will come from the U.S. Strategic Petroleum Reserve. Members of the Organization of Petroleum Exporting Countries (OPEC) decried the move as an unwarranted interference with oil markets, an ironic comment from a cartel. The IEA argued that its move was justified by the disruption of oil exports from Libya due to the continuing conflict there.
The Chinese government reportedly suspended an expected $4 billion purchase of aircraft by Hong Kong Airlines from Airbus that was to be announced this week at the Paris Air Show. The reason? -- China’s displeasure with the EU’s insistence that beginning in January all airlines flying to EU countries take part in the EU’s carbon emissions trading scheme. Daniel Michaels, China Trips Up Major Airbus Deal, Wall St. J., June 25-26, 2011, at B3. On July 5 the European Court of Justice will hear a lawsuit by a group of U.S. airlines challenging the plan, which the EU had hoped would spur other countries to adopt similar plans.
Last week the fifth conference of the parties to the Rotterdam Convention on Prior Informed Consent met in Geneva. India’s representatives surprised the conference by announcing that they had reconsidered their opposition to listing chrysotile asbestos as an Annex III hazardous substance. Although Canada’s representatives reportedly acknowledged the growing scientific consensus concerning the hazardous nature of chrysotile asbestos, they blocked the move to list it in Annex III. Only 450 people continue to be employed in mining asbestos in Canada, but there are plans to expands the Jeffrey Mine to meet increase demand for exports to India. Sarah Schmidt, Canada Concedes Science Against Asbestos Is Sound, Vancouver Sun, June 24, 2011, at B1. A study published in this month’s journal of the Asian Pacific Society of Respirology estimates that asbestos-related deaths will surge in Asia during the next two decades. Although Japan and South Korea have banned the use of asbestos, use of the deadly susbstance is growing in India and China. As a result, Asia now accounts for 64 perent of all asbestos use in the world. Giang Vinh Le, Ken Takahashi, Eun-Kee Park, Vanya Delgermaa, Chulho Oak, Ahmad Munir Qureshi, Syed Mohamed Aljunid, Asbestos Use and Asbestos-Related Diseases in Asia: Past, Present and Future. Respirology, June, 2011.
As mentioned last week (see June 21 blog post), the Chilean government’s plan to build the $3.2billion HidroAysén hydropower project involving the construction of five dams in Patagonia has been the subject of considerable public protest in that environmentally-conscious country. A Chilean appeals court has now blocked the project on the ground that the government commission that approved it had not adequately considered its environmental impact.
On June 22 the International Energy Agency, a consortium of oil-consuming countries, announced that it would release two million barrels of oil per day during the month of July from reserves maintained by member countries. Half of this 60 million barrels of oil will come from the U.S. Strategic Petroleum Reserve. Members of the Organization of Petroleum Exporting Countries (OPEC) decried the move as an unwarranted interference with oil markets, an ironic comment from a cartel. The IEA argued that its move was justified by the disruption of oil exports from Libya due to the continuing conflict there.
The Chinese government reportedly suspended an expected $4 billion purchase of aircraft by Hong Kong Airlines from Airbus that was to be announced this week at the Paris Air Show. The reason? -- China’s displeasure with the EU’s insistence that beginning in January all airlines flying to EU countries take part in the EU’s carbon emissions trading scheme. Daniel Michaels, China Trips Up Major Airbus Deal, Wall St. J., June 25-26, 2011, at B3. On July 5 the European Court of Justice will hear a lawsuit by a group of U.S. airlines challenging the plan, which the EU had hoped would spur other countries to adopt similar plans.
Last week the fifth conference of the parties to the Rotterdam Convention on Prior Informed Consent met in Geneva. India’s representatives surprised the conference by announcing that they had reconsidered their opposition to listing chrysotile asbestos as an Annex III hazardous substance. Although Canada’s representatives reportedly acknowledged the growing scientific consensus concerning the hazardous nature of chrysotile asbestos, they blocked the move to list it in Annex III. Only 450 people continue to be employed in mining asbestos in Canada, but there are plans to expands the Jeffrey Mine to meet increase demand for exports to India. Sarah Schmidt, Canada Concedes Science Against Asbestos Is Sound, Vancouver Sun, June 24, 2011, at B1. A study published in this month’s journal of the Asian Pacific Society of Respirology estimates that asbestos-related deaths will surge in Asia during the next two decades. Although Japan and South Korea have banned the use of asbestos, use of the deadly susbstance is growing in India and China. As a result, Asia now accounts for 64 perent of all asbestos use in the world. Giang Vinh Le, Ken Takahashi, Eun-Kee Park, Vanya Delgermaa, Chulho Oak, Ahmad Munir Qureshi, Syed Mohamed Aljunid, Asbestos Use and Asbestos-Related Diseases in Asia: Past, Present and Future. Respirology, June, 2011.
Monday, June 20, 2011
Supreme Court Decides Climate Case, INECE Conference, Little Progress at Bonn, China Workshop (by Bob Percival)
Just 90 minutes ago the U.S. Supreme Court announced its decision in American Electric Power v. Connecticut. In a unanimous opinion by Justice Ginsburg the court reverses the decision by the U.S. Court of Appeals for the Second Circuit. Here is my early take on the decision. (1) Environmentalists dodged a bullet - by a 4-4 vote the Court affirms that courts have the constitutional authority and jurisdiction to hear common law nuisance suits by states seeking to address environmental problems. This will be a huge disappointment to industry groups who hoped the Court would declare climate change to be either a nonjusticiable political question or that the states lacked standing to sue over it. Justice Kennedy's vote likely was crucial here, because Justice Sotomayor had recused herself from the case. (2) While the Court unanimously dismisses the climate change case brought by Connecticut, it does so on the narrowest possible grounds - that EPA is already working to regulate greenhouse gas emissions and that it has the clear authority to do so. The latter point reaffirms the Court's narrow 5-4 holding in its 2007 decision that prompted EPA to regulate greenhouse gases. (3) The Court is careful to say that it is not deciding whether the federal Clean Air Act law displaces state common law actions, so actions like Connecticut's can still for now be brought in state court. It is a pleasant surprise that Justice Ginsburg, the Justice most sympathetic to environmental concerns, was assigned the opinion in this case. The outcome is somewhat of a victory for environmentalists, particularly in light of the gloomy forecasts following the oral argument. A copy of the Court’s decision is available at: http://www.supremecourt.gov/opinions/10pdf/10-174.pdf
Right now I am in Whistler, British Columbia for the 9th conference of the International Network for Environmental Compliance and Enforcement. Environmental enforcement officials and NGO representatives from more than 40 countries are here. The conference opened last night with a wonderful welcome from the Chief of the Squamish Nation, Gibby Jacobs, who spoke of the importance of environmental citizen suits to protecting native land. “If we have a right to the fish, the fish have a right to clean water,” he observed. He also spoke about how his tribe used a threat of direct action to preserve 1200 year old trees from being cut down. Brazilian Supreme Court Justice Antonio Benjamin followed with another inspiring talk in which he highlighted next June’s Rio+20 conference and asked people to dream of what it might be possible to accomplish during the next twenty years. Prior to arriving in Whistler, my wife and I spent two days in Vancouver where I introduced her to some of my favorite haunts from my summers teaching at UBC. Yesterday morning we kayaked from English Bay to Third Beach and then hiked through the rainforest at Stanley Park. There are lots of boarded-up windows in downtown Vancouver from the riot that occurred after the Canucks lost in Game 7 of the Stanley Cup. What is really inspiring, however, is that every inch of the plywood is now covered with expressions of opposition to the rioters, something that seems to have really mobilized the community.
On Friday two weeks of global climate negotiations in Bonn ended with little progress. Although some progress was made on technical issues such as carbon trading mechanisms, slowing deforestation and management of the global climate fund, the deadlock over commitments to reduce emissions continued. The next Conference of Parties (COP-17) to the UN Framework Convention on Climate Change will be held in Durban, South Africa from Nov. 28 to Dec. 9.
The decision by the government of Chile last month to approve a plan to build a large hydroelectric power project (HidroAysén) in a pristine area of Patagonia has sparked large environmental protests throughout Chile. Alexei Barrionuevo, Plans for Hydroelectric Dam in Patagonia Outrages Chileans, N.Y. Times, June 16, 2011. While the government argues that hydropower is the best option for fulfilling the country’s expanding demand for electricity, the environmental movement counters that Chile has done very little to encourage improved efficiency in energy use and renewables like geothermal power.
From June 13-15 the University of Maryland Environmental Law Program conducted an environmental law workshop for a delegation of Chinese environmental professionals who visited Maryland (see June 12 blog post). I presented lectures on the history of environmental law, pollution control law, and natural resources and biodiversity protection law. My colleague Jane Barrett gave terrific lectures on environmental enforcement, both civil and criminal. Our alum Andrew Gohn who is the Clean Energy Program Manager for the Maryland Energy Administration walked the group through the steps involved in developing offshore wind energy projects. Nat Keller gave a great lecture on the history of land use regulation in the U.S. We also had a fascinating session on the use of video advocacy by environmentalists presented by Jill Smith, Maryland’s Research and Instructional Technology Librarian, who made a short film to illustrate her lecture. Short presentations also were made on emerging issues in environmental law, including hydraulic fracturing, transnational liability litigation, NEPA and climate change, fisheries management, and control of nonpoint pollution.
I am delighted to report that the Kickstarter project mentioned in my May 23 blog post succeeded in raising the $60,000 needed to build an instructional kitchen for a D.C. public elementary school. Last Wednesday, the day of the deadline, more than $27,000 poured in to put the project over the top thanks in large part to the last-minute support from world famous chef José Andrés who made both a substantial contribution and an appeal to his 31,000 Twitter followers. I am amazed by the power of social media to mobilize 470 people from as far away as Australia to fund this project.
Right now I am in Whistler, British Columbia for the 9th conference of the International Network for Environmental Compliance and Enforcement. Environmental enforcement officials and NGO representatives from more than 40 countries are here. The conference opened last night with a wonderful welcome from the Chief of the Squamish Nation, Gibby Jacobs, who spoke of the importance of environmental citizen suits to protecting native land. “If we have a right to the fish, the fish have a right to clean water,” he observed. He also spoke about how his tribe used a threat of direct action to preserve 1200 year old trees from being cut down. Brazilian Supreme Court Justice Antonio Benjamin followed with another inspiring talk in which he highlighted next June’s Rio+20 conference and asked people to dream of what it might be possible to accomplish during the next twenty years. Prior to arriving in Whistler, my wife and I spent two days in Vancouver where I introduced her to some of my favorite haunts from my summers teaching at UBC. Yesterday morning we kayaked from English Bay to Third Beach and then hiked through the rainforest at Stanley Park. There are lots of boarded-up windows in downtown Vancouver from the riot that occurred after the Canucks lost in Game 7 of the Stanley Cup. What is really inspiring, however, is that every inch of the plywood is now covered with expressions of opposition to the rioters, something that seems to have really mobilized the community.
On Friday two weeks of global climate negotiations in Bonn ended with little progress. Although some progress was made on technical issues such as carbon trading mechanisms, slowing deforestation and management of the global climate fund, the deadlock over commitments to reduce emissions continued. The next Conference of Parties (COP-17) to the UN Framework Convention on Climate Change will be held in Durban, South Africa from Nov. 28 to Dec. 9.
The decision by the government of Chile last month to approve a plan to build a large hydroelectric power project (HidroAysén) in a pristine area of Patagonia has sparked large environmental protests throughout Chile. Alexei Barrionuevo, Plans for Hydroelectric Dam in Patagonia Outrages Chileans, N.Y. Times, June 16, 2011. While the government argues that hydropower is the best option for fulfilling the country’s expanding demand for electricity, the environmental movement counters that Chile has done very little to encourage improved efficiency in energy use and renewables like geothermal power.
From June 13-15 the University of Maryland Environmental Law Program conducted an environmental law workshop for a delegation of Chinese environmental professionals who visited Maryland (see June 12 blog post). I presented lectures on the history of environmental law, pollution control law, and natural resources and biodiversity protection law. My colleague Jane Barrett gave terrific lectures on environmental enforcement, both civil and criminal. Our alum Andrew Gohn who is the Clean Energy Program Manager for the Maryland Energy Administration walked the group through the steps involved in developing offshore wind energy projects. Nat Keller gave a great lecture on the history of land use regulation in the U.S. We also had a fascinating session on the use of video advocacy by environmentalists presented by Jill Smith, Maryland’s Research and Instructional Technology Librarian, who made a short film to illustrate her lecture. Short presentations also were made on emerging issues in environmental law, including hydraulic fracturing, transnational liability litigation, NEPA and climate change, fisheries management, and control of nonpoint pollution.
I am delighted to report that the Kickstarter project mentioned in my May 23 blog post succeeded in raising the $60,000 needed to build an instructional kitchen for a D.C. public elementary school. Last Wednesday, the day of the deadline, more than $27,000 poured in to put the project over the top thanks in large part to the last-minute support from world famous chef José Andrés who made both a substantial contribution and an appeal to his 31,000 Twitter followers. I am amazed by the power of social media to mobilize 470 people from as far away as Australia to fund this project.
Sunday, June 12, 2011
Romney Rejects Climate Denial, EU Reaffirms Airline Limits, Supreme Court Rejects Superfund Challenge, Japan Fallout, China Workshop (by Bob Percival)
Republican presidential candidate Mitt Romney confirmed last week that he believed that climate change is real, a sharp break with the rest of the field of announced Republican presidential candidates. Romney stated: “I don’t speak for the scientific community, of course. But I believe the world’s getting warmer. I can’t prove that, but I believe that based on what I read that the world is getting warmer. And number two, I believe that humans contribute to that.” While rejecting cap-and-trade, Romney stated that “It’s important for us to reduce our emissions of pollutants and greenhouse gases that may be significant contributors.” For this seemingly sane statement Romney’s chances of winning the Republican presidential nomination were officially declared dead by Rush Limbaugh and others, but it instead could be the sign of the first serious challenger to Obama emerging from the Republican field.
On Monday June 6 a representative of EU Climate Commissioner Connie Hedegaard reiterated the EU’s determination to require all airlines flying to the EU to participate in a cap-and-trade program for their greenhouse gas (GHG) emissions that will begin on January 1, 2012. Airlines will be required to pay a penalty of 100 Euros for each ton of GHG emissions in excess of their allocation. Non-EU airlines are bitterly opposed to the regulation, while EU-based airlines argue that all airlines must be covered or they will be at a competitive disadvantage. Jonathan Buck, Europe to Keep Airlines in Emissions-Trading Plan, Wall St. J., June 7, 2011, at B8.
On Monday June 6 the U.S. Supreme Court refused to review a decision by the U.S. Court of Appeals for the D.C. Circuit upholding the constitutionality of the Superfund cleanup process. Since the late 1990s the General Electric Company (GE) has been arguing that Superfund’s provisions precluding pre-cleanup judicial review of cleanup orders and authorizing treble damages against companies who improperly defy them denies due process of law. GE enlisted Harvard constitutional law professor Laurence Tribe to represent it early on in this crusade (as he did in 2000 when the company argued that the Clean Air Act was unconstitutional on non-delegation grounds) but it lost at every stage of this long-running litigation. The latest round of GE’s efforts to attack Superfund was championed by former Stanford law dean Kathleen Sullivan who represented industry groups in the Burlington Northern case that made it more difficult for the government to hold companies liable under Superfund as arrangers for disposal of hazardous substances.
A bitter battle seems to have broken out over proposals to eliminate a multi-billion dollar subsidy for ethanol blenders. Senator Tom Coburn has drawn the wrath of anti-tax crusader Grover Norquist for breaking ranks to support eliminate of this tax break, which he interprets as supporting a tax increase in violation of the right’s “pledge” never to raise taxes. The environmental community also supports elimination of the tax break.
Fallout continues from the Japanese nuclear accident. The Wall Street Journal reports that “an unofficial nuclear shutdown” is occurring in Japan as Japanese utilities who had nuclear powerplants temporarily shut down when the Fukushima Daiichi accident occurred are declining to restart them even if they were not directly affected by the accident. As a result, only 17 of Japan’s 54 nuclear reactors are now operating. Mari Iwata, Japan Expects Power Shortages Amid Growing, Unofficial Nuclear Shutdown, Wall St. J., June 10, 2011. German Chancellor Angela Merkel conceded last week that her country’s decision to return to its policy of phasing out nuclear energy will require the country to build an addition 10 to 20GW of fossil-fuel powerplants over the next ten years. Bernd Radowitz, German Nuclear Exit Raises Fossil-Fuel Needs, Wall St. J., June 10, 2011, at A12.
Today I accompanied a delegation of young Chinese environmental professionals to Camden Yards to watch the Baltimore Orioles play the Tampa Bay Rays. The delegation is part of a project sponsored by the National Committee on U.S.-China Relations. The group includes Ma Yong (Director of the Department of Inspection and Litigation of the All-China Environmental Federation’s Environmental Legal Services Center in Beijing), Professor Qin Tianbao from the Research Institute of Environmental Law at Wuhan University, Ms. Bo Xiaobo from the China University of Political Science and Law in Beijing, Ms. Hu Wei (an attorney with the Shanghai Debund Law Office), and Ms. Liu Xiaoying (a research fellow at Beijing Children's Legal Aid and Research Center). The group has spent the last two weeks visiting San Francisco, Atlanta and Washington. For the next three days they will be participating in an environmental workshop at the University of Maryland School of Law. Most of the group seemed to really enjoy the baseball game, which I often describe as the very best way for foreigners to experience a slice of truly American culture. The Os lost to the Ray 9-6.
On Monday June 6 a representative of EU Climate Commissioner Connie Hedegaard reiterated the EU’s determination to require all airlines flying to the EU to participate in a cap-and-trade program for their greenhouse gas (GHG) emissions that will begin on January 1, 2012. Airlines will be required to pay a penalty of 100 Euros for each ton of GHG emissions in excess of their allocation. Non-EU airlines are bitterly opposed to the regulation, while EU-based airlines argue that all airlines must be covered or they will be at a competitive disadvantage. Jonathan Buck, Europe to Keep Airlines in Emissions-Trading Plan, Wall St. J., June 7, 2011, at B8.
On Monday June 6 the U.S. Supreme Court refused to review a decision by the U.S. Court of Appeals for the D.C. Circuit upholding the constitutionality of the Superfund cleanup process. Since the late 1990s the General Electric Company (GE) has been arguing that Superfund’s provisions precluding pre-cleanup judicial review of cleanup orders and authorizing treble damages against companies who improperly defy them denies due process of law. GE enlisted Harvard constitutional law professor Laurence Tribe to represent it early on in this crusade (as he did in 2000 when the company argued that the Clean Air Act was unconstitutional on non-delegation grounds) but it lost at every stage of this long-running litigation. The latest round of GE’s efforts to attack Superfund was championed by former Stanford law dean Kathleen Sullivan who represented industry groups in the Burlington Northern case that made it more difficult for the government to hold companies liable under Superfund as arrangers for disposal of hazardous substances.
A bitter battle seems to have broken out over proposals to eliminate a multi-billion dollar subsidy for ethanol blenders. Senator Tom Coburn has drawn the wrath of anti-tax crusader Grover Norquist for breaking ranks to support eliminate of this tax break, which he interprets as supporting a tax increase in violation of the right’s “pledge” never to raise taxes. The environmental community also supports elimination of the tax break.
Fallout continues from the Japanese nuclear accident. The Wall Street Journal reports that “an unofficial nuclear shutdown” is occurring in Japan as Japanese utilities who had nuclear powerplants temporarily shut down when the Fukushima Daiichi accident occurred are declining to restart them even if they were not directly affected by the accident. As a result, only 17 of Japan’s 54 nuclear reactors are now operating. Mari Iwata, Japan Expects Power Shortages Amid Growing, Unofficial Nuclear Shutdown, Wall St. J., June 10, 2011. German Chancellor Angela Merkel conceded last week that her country’s decision to return to its policy of phasing out nuclear energy will require the country to build an addition 10 to 20GW of fossil-fuel powerplants over the next ten years. Bernd Radowitz, German Nuclear Exit Raises Fossil-Fuel Needs, Wall St. J., June 10, 2011, at A12.
Today I accompanied a delegation of young Chinese environmental professionals to Camden Yards to watch the Baltimore Orioles play the Tampa Bay Rays. The delegation is part of a project sponsored by the National Committee on U.S.-China Relations. The group includes Ma Yong (Director of the Department of Inspection and Litigation of the All-China Environmental Federation’s Environmental Legal Services Center in Beijing), Professor Qin Tianbao from the Research Institute of Environmental Law at Wuhan University, Ms. Bo Xiaobo from the China University of Political Science and Law in Beijing, Ms. Hu Wei (an attorney with the Shanghai Debund Law Office), and Ms. Liu Xiaoying (a research fellow at Beijing Children's Legal Aid and Research Center). The group has spent the last two weeks visiting San Francisco, Atlanta and Washington. For the next three days they will be participating in an environmental workshop at the University of Maryland School of Law. Most of the group seemed to really enjoy the baseball game, which I often describe as the very best way for foreigners to experience a slice of truly American culture. The Os lost to the Ray 9-6.
Monday, June 6, 2011
Chinese Electricity Prices, MEP Report, C40 Meeting, French Debate Fracking Ban, Fordham Article (by Bob Percival)
On Monday May 30 the Chinese government announced that it would increase electricity prices in response to power shortages that occurred when electric utilities cut back on power production due to the high price of coal. The price increases, which became effective on June 1, average approximately 3 percent.
On Friday June 3 the Chinese Ministry of Environmental Protection released its annual report. Despite reporting progress in reducing air and water pollution (a 19% drop in SO2 emissions and a 32% decrease in pollution of surface water), the report described environmental conditions in China as “very grave.” The report cited declining biodiversity and increasing pollution of the countryside as polluting industries were moved from cities to rural areas. Ian Johnson, China Agency Says Threat to Ecosystem is “Grave,” N.Y. Times, June 4, 2011, at A7. Li Ganjie, vice minister for the environment, noted that China needed to write new legislation to control heavy metal pollution. He also conceded that more than one fifth of the country’s nature reserves have been degraded by illegal development projects.
On Wednesday June 1 the World Bank signed an agreement with representatives from 40 large cities (the “C40”) meeting in Sao Paulo, Brazil to provide technical and financial assistance for local efforts to reduce emissions of greenhouse gases (GHGs). The agreement was hailed by New York Mayor Michael Bloomberg and former President Bill Clinton, who have joined forces to promote local initiatives to combat climate change. At present 58 large cities, with a population of 300 million people, that account for 12 percent of global GHG emissions, are participating in the C40 initiative. The World Bank will help the group employ standardized methods for measuring and reporting on GHG emissions to make it easier to attract financing for reduction projects.
On June 1 the French Senate began debate on legislation, approved last month by the French National Assembly, to ban the use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. “Fracking” has become a popular technology in the U.S. where it was exempted from regulation under the Safe Drinking Water Act in 2005. It has raised serious environmental concerns potential contamination of ground and surface water in light of the melange of chemicals injected deep underground to fracture rock formations and release gas deposits. On the very day the French Senate debate commenced, a British company announced that it temporarily would halt fracking operations due to concern that the practice had contributed to earthquakes near a test well. David Jolly, U.K. Company Suspends Controversial Drilling Procedure, N.Y. Times, June 1, 2011.
One little-noticed aspect of the G-8 Summit in France the week before last was a pledge by EU officials to consider replicating a controversial provision in the U.S.‘s Dodd-Frank Wall Street Financial Reform and Consumer Protection Act to require oil, gas and mining companies to disclose all payments to foreign governments. William MacNamara, Transparency Initiative Moves Forward in Deauville, FInancial Times, June 1, 2011. If such legislation is adoption, it should reduce the force of complaints by U.S. companies that Dodd-Frank’s requirements disadvantage them in global competition.
Today I received hard copies of the May 2011 issue of the Fordham Law Review where my article “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” appears. The article was a product of my presentation at a symposium on presidential powers held at Fordham last November (see Nov. 14, 2010 blog post). The symposium produced some great articles exploring a surprisingly uncharted area of law. A copy of my article, which reviews the constitutional and administrative law debate over the president’s authority to direct environmental regulations, can be downloaded at: http://www.fordhamlawreview.org/articles/who-s-in-charge-does-the-president-have-directive-authority-over-agency-regulatory-decisions.
On Friday June 3 the Chinese Ministry of Environmental Protection released its annual report. Despite reporting progress in reducing air and water pollution (a 19% drop in SO2 emissions and a 32% decrease in pollution of surface water), the report described environmental conditions in China as “very grave.” The report cited declining biodiversity and increasing pollution of the countryside as polluting industries were moved from cities to rural areas. Ian Johnson, China Agency Says Threat to Ecosystem is “Grave,” N.Y. Times, June 4, 2011, at A7. Li Ganjie, vice minister for the environment, noted that China needed to write new legislation to control heavy metal pollution. He also conceded that more than one fifth of the country’s nature reserves have been degraded by illegal development projects.
On Wednesday June 1 the World Bank signed an agreement with representatives from 40 large cities (the “C40”) meeting in Sao Paulo, Brazil to provide technical and financial assistance for local efforts to reduce emissions of greenhouse gases (GHGs). The agreement was hailed by New York Mayor Michael Bloomberg and former President Bill Clinton, who have joined forces to promote local initiatives to combat climate change. At present 58 large cities, with a population of 300 million people, that account for 12 percent of global GHG emissions, are participating in the C40 initiative. The World Bank will help the group employ standardized methods for measuring and reporting on GHG emissions to make it easier to attract financing for reduction projects.
On June 1 the French Senate began debate on legislation, approved last month by the French National Assembly, to ban the use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. “Fracking” has become a popular technology in the U.S. where it was exempted from regulation under the Safe Drinking Water Act in 2005. It has raised serious environmental concerns potential contamination of ground and surface water in light of the melange of chemicals injected deep underground to fracture rock formations and release gas deposits. On the very day the French Senate debate commenced, a British company announced that it temporarily would halt fracking operations due to concern that the practice had contributed to earthquakes near a test well. David Jolly, U.K. Company Suspends Controversial Drilling Procedure, N.Y. Times, June 1, 2011.
One little-noticed aspect of the G-8 Summit in France the week before last was a pledge by EU officials to consider replicating a controversial provision in the U.S.‘s Dodd-Frank Wall Street Financial Reform and Consumer Protection Act to require oil, gas and mining companies to disclose all payments to foreign governments. William MacNamara, Transparency Initiative Moves Forward in Deauville, FInancial Times, June 1, 2011. If such legislation is adoption, it should reduce the force of complaints by U.S. companies that Dodd-Frank’s requirements disadvantage them in global competition.
Today I received hard copies of the May 2011 issue of the Fordham Law Review where my article “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” appears. The article was a product of my presentation at a symposium on presidential powers held at Fordham last November (see Nov. 14, 2010 blog post). The symposium produced some great articles exploring a surprisingly uncharted area of law. A copy of my article, which reviews the constitutional and administrative law debate over the president’s authority to direct environmental regulations, can be downloaded at: http://www.fordhamlawreview.org/articles/who-s-in-charge-does-the-president-have-directive-authority-over-agency-regulatory-decisions.
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