After fierce lobbying from industry groups, President Obama announced on Friday September 2 that he had directed EPA Administrator Lisa Jackson to withdraw a proposal to tighten the national air quality standard for ozone. President Obama cited “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover” (http://www.whitehouse.gov/the-press-office/2011/09/02/statement-president-ozone-national-ambient-air-quality-standards). In a memo directing EPA to reconsider the rule, OMB’s Cass Sunstein noted that EPA could consider a new standard in two years and that other recent rules also will reduce ozone pollution (which presumably would reduce the cost of meeting a tighter standard). Sunstein’s letter is available online at: http://www.whitehouse.gov/sites/default/files/ozone_national_ambient_air_quality_standards_letter.pdf).
The administration’s decision leaves in place the 2008 ozone standard (0.075 ppm over 8 hours) that the Bush administration had promulgated over the unanimous objections of EPA’s Clean Air Scientific Advisory Committee (CASAC). CASAC had recommended that the standard be set within a range from 0.060 to 0.070 ppm. The best that could be said for Obama’s decision is that he is being honest about the reason for the action, unlike his predecessor who frequently directed EPA in secret to weaken regulatory decisions without publicly disclosing the real reasons. And the Obama administration did pledge to complete a new review of the ozone standard by 2013. But it sets a terrible precedent by buying into industry scapegoating of environmental regulations for economic problems, lending credibility to the “now is not the time” argument that always is used to oppose new environmental laws or regulations. In 1990 when the spectacularly successful 1990 Clean Air Act Amendments were about to be adopted by Congress, industry opponents assembled a group of Nobel Prize-winning economists who argued that it would seriously harm the economy, an argument repeated in 1997 when EPA tightened air quality standards. Both predictions proved dead wrong, see Motoko Rich & John Broder, A Debate Arises on Job Creation v. Environmental Regulation, N.Y. Times, Sept. 5, 2011, at B1, but President Obama has now caved to similar pressure, which will make it harder to explain why other EPA regulatory actions also should not be put on hold.
Of course the “now is not the time” argument is remarkably versatile and is employed even in times of robust economic growth when it is argued that “now is not the time” because any new regulation will kill the robust growth. Actually the ozone rule is particularly ill-suited as a target for this argument because it would take many years to implement since states first have to change their implementation plans, obtain EPA approval, and then issue permits. Describing America’s polluting coal, oil and chemical industries as “masters of the art” of “economic scare tactics,” Christopher Swann reminds us that industry claimed the 1990 Clean Air Act would increase electricity prices by 13% when in fact they fell by 20%. Christopher Swann, “Backing Off Air Rules,” N.Y. Times, Sept. 5, 2011, at B2. Moreover the decision to scrap the new rules penalizes companies who invested in new pollution control technology in anticipation of the existing Clean Air Act being implemented in a timely fashion. The decision will hurt the natural gas industry, which had anticipated increased demand for its product as the ozone rules forced dirtier energy providers to close. Liam Denning, Obama Burns Gas Drillers on Ozone, Wall St. J., September 3-4, 2011, at B16. For a devastating insider’s account of the history behind this decision by NRDC attorney John Walke see: http://switchboard.nrdc.org/blogs/jwalke/the_president_sabotages_clean.html.
Of course the Clean Air Act makes it illegal for EPA to consider economic impacts when setting purely health-based standards like national air quality controls (costs can be considered at the implementation stage). Also the President does not have the legal authority to dictate to the EPA Administrator what decision she should make in setting air quality standards under the Clean Air Act. See Robert V. Percival, “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” 79 Fordham L. Rev. 2487 (2011). However, there is widespread agreement that the President could fire EPA Administrator Lisa Jackson if she refused to comply with his directive. On Friday Jackson appeared to accept the President’s directive while definitely not endorsing it. After citing EPA’s other actions to control air pollution during the Obama administration, she concluded: ”We will revisit the ozone standard, in compliance with the Clean Air Act.” Her statement is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/E41FBC47E7FF4F13852578FF00552BF8
Last week five Chinese environmental groups led by Ma Jun’s Institute for Public and Environmental Affairs released another report criticizing pollution by Chinese suppliers of Apple. The report, entitled “The Other Side of Apple 2” is based on data collected during a seven-month investigation of Apple’s suspected suppliers. It finds that 27 of these suppliers have released toxic pollutants that have harmed communities or the environment. Apple executives responded to the report by reiterating the company’s commitment to environmental compliance by its suppliers and by agreeing to speak with the authors of the report. Last week the World Bank released a report urging China to act to reduce the rise of non-communicable diseases including diseases caused by air and water pollution. The report, entitled “Toward a Healthy and Harmonious Life,” is available online at: http://www.worldbank.org/content/dam/Worldbank/document/NCD_report_en.pdf. The report notes that China can save a staggering $10.7 trillion from 2010 to 2040 if it can just reduce by 1% its rate of cardiovascular disease.
Japan’s new prime minister Yoshihiko Noda confirmed that he supports a gradual phaseout of nuclear power. Last week, in his first address to the Japanese nation, Noda stated that it would be “unrealistic” to build any new nuclear power plants or to extend the life of existing plants in light of the severe accident at the Fukushima Daiichi reactor complex. Last week the Associated Press released the results of a lengthy investigation concluding that seismic risks at U.S. nuclear power plants have been significantly underestimated, by a figure of 24 times in one case. The study concluded that nearly one-quarter of the 104 nuclear plants in the U.S. may need to be modified to protect against seismic risks. Dina Cappiello & Jeff Donn, Quake Risk to Reactors Greater than Thought, AP (http://hosted.ap.org/dynamic/stories/U/US_NUCLEAR_PLANTS_EARTHQUAKES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT). On September 1 the U.S. Nuclear Regulatory Commission (NRC) released for public comment a draft letter requesting its licensees to reevaluate their facilities’ vulnerability to earthquakes and to supply the NRC with data to assist in the revision of safety standards for seismic risks. 76 Fed. Reg. 54507 (Sept. 1, 2011).
Like President George W. Bush’s memoir (see Nov. 14, 2010 blog post), former Vice President Dick Cheney’s “In My Time” almost entirely ignores environmental issues. The words “climate change,” “global warming,” “Kyoto Protocol,” and even “Christie Todd Whitman” are never mentioned in his book. One would have thought Cheney would be proud enough to explain how he engineered President Bush’s repudiation of his campaign pledge to control emissions of CO2 or his successful effort to neuter EPA Administrator Whitman, issues covered extensively in Bart Gellman’s Angler and Whitman’s own memoir (“It’s My Party Too”). However, Cheney cannot resist describing his failed energy task force as a triumph, not because it changed policy, but rather because he was able to defeat lawsuits seeking greater disclosure of its operations. Cheney portrays environmentalists as naive for promoting renewable energy and expresses pride in his famous statement that “Conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.“ Cheney claims that environmentalists do not understand the need to increase the domestic supply of fossil fuels and again raises the bogus specter of the lights going out if we do not do so. He never mentions Ken Lay or the role of Enron’s energy traders in engineering the brief escalation of electricity prices in California that initially was used to justify formation of his task force.
In 2008 the federal Lacey Act that makes it illegal to import wildlife in violation of U.S. or foreign laws was amended to extend its protections to forest products. The law requires companies to use “due care” to ensure that their suppliers of forest products are in compliance with the law, making it a powerful tool to decrease demand for the fruits of illegal logging operations. Federal agents recently raided a Gibson Guitar factory in Tennessee to investigate whether ebony from India was shipped to the company in violation of Indian law. The raid has been taken as a signal that the U.S. Department of Justice will aggressively enforce the Lacey Act as extended to forest products. Anderson Hardwood Floors expresses strong support for the law as a means of protecting it from unscrupulous competitors who obtain wood through illegal logging. Anderson, which now makes 90% of its products in the U.S., imports wood only from Paraguay where it can be confident that its suppliers are complying with the law. Kris Maher & James R. Hagerty, Forestry Law Splits Wood Industry, Wall St. J., Sept 2, 2011, at B2.
Last week I began teaching Environmental Law at both the Georgetown University Law Center, where I am a visiting professor this fall, and the University of Maryland School of Law. There are 56 students in my Georgetown class and 66 in the Maryland class. In both classes we are using my casebook Environmental Regulation: Law, Science and Policy, which has just been issued by Wolters Kluwer in an electronic edition that enables professors to annotate and update the casebook instantly and to embed interactive video links into the text. The new SmartBook technology also enables students to brief cases, highlight the text, prepare outlines, and access the text from mobile media. These are really exciting developments that have been enthusiastically embraced by the students who have elected to use the SmartBook version of the casebook. For more information see my casebook website at http://www.erlsp.com.
Monday, September 5, 2011
Monday, August 29, 2011
Vietnamese Delegation, Superbugs & GMOs, XL Pipeline Decision, Kenya E-Court, Danish Arctic Plan, China Sues Conoco Phillips (by Bob Percival)
On Tuesday August 23 I hosted a group of visiting environmental professionals from Vietnam at the University of Maryland School of Law. The group included Dr. Loi Van Dang, Deputy Director of the Department of Pollution Control at the Vietnam Environment Administration (VEA), Mr. Son Minh Hoang, Deputy Director of the VEA’s Department of Policy and Legislation, Dr. Dong The Nguyen, VEA’s Deputy General Director in the Ministry of Natural Resources and Environment, and Dr. Khanh Quoc Nguyen, Director of the VEA’s Center for Environmental Information and Data. It also included Mr. Phuong Nam Nguyen, Director of the Vietnam Environment Protection Fund, Mr. Sy Thi Nguyen, Deputy Director of the Environmental Crime Prevention Unit in Vietnam’s Ministry of Public Security and an environmental journalist, Dr. My Thi Pham, who is the Editor-in-Chief of the newspaper Natural Resources & Environment. Vietnam is in the process of revising its environmental laws, as is customary every five years, and the group was visiting the U.S. under the sponsorship of the U.S. Department of State’s International Visitor Leadership Program. I was asked to present a lecture to them summarizing aspects of U.S. environmental law that might be useful to them in updating Vietnam’s laws.
When I visited Vietnam in May 2008, I spent an afternoon in Hanoi at what was then called the Vietnam Environmental Protection Agency, meeting with Dr. Tran Hong Ha, who was then the agency’s Director General. (See May 4, 2008 blog posting). Last Tuesday I showed the Vietnamese visitors a photo of my visit with Dr. Ha, who they explained has been promoted to an even more important position in the Vietnamese government. Half way through my presentation the ceiling started rumbling and the floor shook. One of the interpreters who had lived for many years in California jumped under a table and declared that it was an earthquake. I continued lecturing for another 15 minutes until a security guard burst into the room and asked why we had not evacuated the building (answer: no one told us to). The evacuation enabled me to introduce the visitors to several members of our faculty, gathered in the park across the street from the law school, but it precluded us from completing our workshop.
Hurricane Irene hit the east coast and the Washington area this weekend. While it was not nearly as bad as people initially had feared, the concern that major urban areas like New York City could be flooded by Katrina-like storm surges seems to have pointed the way to what we can expect in the future as sea level rise and stronger hurricanes (both forecast by the IPCC) occur with greater frequency.
Despite a strong stock market rally today, Monsanto Corp. was one of the few companies that saw its stock decline in price. The reason apparently was an article in the Wall Street Journal that publicized a discovery by scientists from Iowa State University. The scientists found that some agricultural pests appear to have developed immunity tonsanto’s genetically modified crops that are supposed to be resistant to the bugs. Scott Kilman., Monsanto Corn Plant Losing Bug Resistance, Wall St. J., Aug. 29, 2011, at B1. Are presidential candidates who question the theory of evolution listening?
Despite strong protests from environmental groups, the U.S. State Department on August 25 approved construction of the XL pipeline to transport crude oil from Alberta’s tar sands to U.S. refiners. Several prominent environmentalists,, including Gus Speth, were arrested and spent last weekend in jail after protesting in front of the White House. Environmentalists fear that the piepline will help Canada market oil derived from Alberta tar sands that generates significantly more greenhouse gase emissions than alternative fuels.
In August 2010 the nation of Kenya adopted an ambitious new constitution that, among other reforms, created a Land and Environmental Court. The constitution was approved by a vote of 67% of Kenyans who voted in a referendum in August 2010. Under the terms of the new constituton, Kenya’s Parliament was supposed to enact implementing legislation within one year of adoption of the constitution. With the deadline looming, Kenya’s Parliament did in fact adopt legislation to implement the terms of the new constitution. While I do not have direct confirmation that this included legislation to establish Kenya’s Land and Environment Court in July 2011, draft legislation to implement this provision of the constitution was unveiled in late July 2009.
On August 23 the Foreign Ministry of Denmark unveiled a new 10-year plan for the Arctic that shifts the focus of government policy from environmental protection to commercial and economic development. The strategy was agreed upon by the governments of Denmark, Greenland, and the Faroe Islands. Danish Foreign Minister Lene Esperson explained that “Previously, the discussion about the Arctic region has focused on the environment, on whether we oughtn’t turn the region into one large natural preserve. But Denmark, Greenland and the Faroe Islands have now agreed that we want to utilize the commercial and economic potential of the area.” The plan seeks to encourage private investment in the area to improve the living standards of people residing there. Flemming Emil Hansen, Arctic Strategy Shifts to Economic Development, Wall St. J., Aug. 24, 2011, at A6.
Press reports last week confirmed that the Chinese government’s maritime authority is about to sue the U.S. oil company Conoco-Phillips for two major oil spills that occurred in June 2011 in Bohai Bay. China’s State Oceanic Administration is reviewing applications from 49 Chinese law firms to help with the litigation. The two spills released 3,2000 barrels of oil and drilling fluids in the Penglai 19-3 offshore oil field, spreading pollution over 324 square miles of Bohai Bay. Conoco states that its cleanup of the spills is more than 95% complete and that it will “do the right thing” with respect to compensating victims of the spills. Edward Wong & Clifford Krauss, Chinese Maritime Agency Plans to Sue American Oil Company Conoco Phillips Over Two Spills, N.Y. Times, Aug. 25, 2011 (http://www.nytimes.com/2011/08/26/world/asia/26china.html).
When I visited Vietnam in May 2008, I spent an afternoon in Hanoi at what was then called the Vietnam Environmental Protection Agency, meeting with Dr. Tran Hong Ha, who was then the agency’s Director General. (See May 4, 2008 blog posting). Last Tuesday I showed the Vietnamese visitors a photo of my visit with Dr. Ha, who they explained has been promoted to an even more important position in the Vietnamese government. Half way through my presentation the ceiling started rumbling and the floor shook. One of the interpreters who had lived for many years in California jumped under a table and declared that it was an earthquake. I continued lecturing for another 15 minutes until a security guard burst into the room and asked why we had not evacuated the building (answer: no one told us to). The evacuation enabled me to introduce the visitors to several members of our faculty, gathered in the park across the street from the law school, but it precluded us from completing our workshop.
Hurricane Irene hit the east coast and the Washington area this weekend. While it was not nearly as bad as people initially had feared, the concern that major urban areas like New York City could be flooded by Katrina-like storm surges seems to have pointed the way to what we can expect in the future as sea level rise and stronger hurricanes (both forecast by the IPCC) occur with greater frequency.
Despite a strong stock market rally today, Monsanto Corp. was one of the few companies that saw its stock decline in price. The reason apparently was an article in the Wall Street Journal that publicized a discovery by scientists from Iowa State University. The scientists found that some agricultural pests appear to have developed immunity tonsanto’s genetically modified crops that are supposed to be resistant to the bugs. Scott Kilman., Monsanto Corn Plant Losing Bug Resistance, Wall St. J., Aug. 29, 2011, at B1. Are presidential candidates who question the theory of evolution listening?
Despite strong protests from environmental groups, the U.S. State Department on August 25 approved construction of the XL pipeline to transport crude oil from Alberta’s tar sands to U.S. refiners. Several prominent environmentalists,, including Gus Speth, were arrested and spent last weekend in jail after protesting in front of the White House. Environmentalists fear that the piepline will help Canada market oil derived from Alberta tar sands that generates significantly more greenhouse gase emissions than alternative fuels.
In August 2010 the nation of Kenya adopted an ambitious new constitution that, among other reforms, created a Land and Environmental Court. The constitution was approved by a vote of 67% of Kenyans who voted in a referendum in August 2010. Under the terms of the new constituton, Kenya’s Parliament was supposed to enact implementing legislation within one year of adoption of the constitution. With the deadline looming, Kenya’s Parliament did in fact adopt legislation to implement the terms of the new constitution. While I do not have direct confirmation that this included legislation to establish Kenya’s Land and Environment Court in July 2011, draft legislation to implement this provision of the constitution was unveiled in late July 2009.
On August 23 the Foreign Ministry of Denmark unveiled a new 10-year plan for the Arctic that shifts the focus of government policy from environmental protection to commercial and economic development. The strategy was agreed upon by the governments of Denmark, Greenland, and the Faroe Islands. Danish Foreign Minister Lene Esperson explained that “Previously, the discussion about the Arctic region has focused on the environment, on whether we oughtn’t turn the region into one large natural preserve. But Denmark, Greenland and the Faroe Islands have now agreed that we want to utilize the commercial and economic potential of the area.” The plan seeks to encourage private investment in the area to improve the living standards of people residing there. Flemming Emil Hansen, Arctic Strategy Shifts to Economic Development, Wall St. J., Aug. 24, 2011, at A6.
Press reports last week confirmed that the Chinese government’s maritime authority is about to sue the U.S. oil company Conoco-Phillips for two major oil spills that occurred in June 2011 in Bohai Bay. China’s State Oceanic Administration is reviewing applications from 49 Chinese law firms to help with the litigation. The two spills released 3,2000 barrels of oil and drilling fluids in the Penglai 19-3 offshore oil field, spreading pollution over 324 square miles of Bohai Bay. Conoco states that its cleanup of the spills is more than 95% complete and that it will “do the right thing” with respect to compensating victims of the spills. Edward Wong & Clifford Krauss, Chinese Maritime Agency Plans to Sue American Oil Company Conoco Phillips Over Two Spills, N.Y. Times, Aug. 25, 2011 (http://www.nytimes.com/2011/08/26/world/asia/26china.html).
Sunday, August 21, 2011
Dalian Protest, Japan Reorganizes Nuclear Regulation, Uganda Mabira Forest Dispute, GOP Candidates v. EPA (by Bob Percival)
Last week a large group of Chinese citizens - officially estimated to number 12,000, but many more by other estimates -- gathered in the northern port town of Dalian to protest the operation of a $1.5 billion chemical plant. The Fujia chemical plant, which has been operating for two years, makes paraxylene, a toxic chemical used to manufacture polyester. The plant is located on the coast. After the plant’s seawall was breached in a typhoon that hit a week earlier, seawater lapped at the walls of the plant, causing the public to fear that toxic chemicals would be released. The city’s Communist party secretary reportedly stood atop a car to beg the demonstrators to disperse, promising them that the plant would be closed. Sharon LaFraniere & Michael Wines, Protest Over Plant Shows Citizen Pressure on China, N. Y. Times, Aug. 15, 2011. The demonstration, organized in part through social media and other internet communications, is another sign of the potential power of public protests in China. Although the Dalian protest was peaceful, my Chinese sources indicate that some of the protesters may have been roughed up by police.
On August 15 the Japanese government announced that it will move the agency responsible for regulating nuclear power from the Ministry of Economy, Trade and Industry to the Environment Ministry. A new Nuclear Safety Agency will be created in April replacing the current Nuclear and Industrial Safety Agency and the Nuclear Safety Commission. It will be an affiliate of the Environment Ministry. The move is widely viewed as a means of strengthening regulation of nuclear power in light of the perception that the existing regulatory agencies were too close to the industry. Mitsuru Ore, Japan Tightens Nuclear Oversight, Wall St. J., April 16, 2011, at A9.
The shutdown of nuclear power plants in Japan in the wake of the March 2011 accident at the Fukushima Daiichi nuclear power complex continues to spread. Strong pressure from the Japanese public has prevented the restart of reactors temporarily idled for routine inspections. As a result, only 15 of the country’s 54 nuclear power plants are in operation now. If this trend continues through next spring Japan’s entire nuclear power industry, which accounted for 30% of the country’s electric generation prior to the accident, could be shut down. Although conservation measures reduced peak electric demand in Japan in July 2011 by 20 percent, several old fossil-fueled power plants have been placed in operation to prevent severe power shortages. In addition to increasing the cost of electricity generation by nearly $40 billion per year, increased use of oil and coal could increase Japan’s greenhouse gas (GHG) emissions by 16% over 1990 levels by the year 2013. Hiroko Tabuchi, Quake in Japan Causes Costly Shift to Fossil Fuels, N.Y. Times, Aug. 20, 2011, at B2. The Kyoto Protocol requires Japan to reduce its GHG emissions by 6% over 1990 levels during the 2008-2012 period. Meanwhile in the U.S. the board of the Tennessee Valley Authority has voted to resume construction of a nuclear power plant that had been put on hold in 1988. The decision to restart construction was taken to replace old coal-fired plants that are being retired in part due to pollution and climate change concerns. Matthew L. Wald, Alabama Nuclear Reactor, Partly Built, to Be Finished, N.Y. Times, Aug. 19, 2011, at A12.
The U.S. Department of Interior announced on August 19 that on December 14 it will conduct the first sale of leases for offshore oil drilling in the Gulf of Mexico since the Deepwater Horizon oil spill in April 2010. The Department raised the minimum bid to $100 per acre from $37.50 per acre in an effort to prevent oil companies from stockpiling properties that are never developed. Leases that are not developed can revert back to the federal government at the end of their term, though extensions routinely have been granted in the past. ExxonMobil recently sued the Interior Department for refusing to extend the term of its leases for the Julia oil field in the Gulf of Mexico that the company estimates may contain one billion barrels of recoverable oil. Russell Gold, Exxon, U.S. Government Duel Over Huge Oil Find, Wall St. J., Aug. 18, 2011, at A1. Statoil ASA of Norway, whose lease extension request also was denied, filed suit on August 15, claiming that Interior’s action was unprecedented because lease extension requests never previously have been denied for deepwater oil fields.
On August 15 the U.S. Fish & Wildlife Service released its draft comprehensive conservation plan (CCP) for the Arctic National Wildlife Refuge (ANWR) in northern Alaska. 76 Fed. Reg. 50490. Public comment on the CCP and a companion draft environmental impact statement will be accepted until November 14. The CCP governs how ANWR will be managed for the next 15 years. Among the alternative it proposes are inclusion of parts of ANWR in the National Wilderness Preservation System as well as inclusion of some of the rivers in the area in the Wild and Scenic Rivers System.
Opposition reportedly is growing to Uganda President Yoweri Museveni’s plan to turn over part of the protected Mabira Forest Reserve for development by a family of sugar magnates. The Mehta family is promising to create jobs by developing the land for sugar cane production and to build a road and a power plant. Environmentalists are outraged that the property transfer, first proposed several years ago, would be done without observing procedures required by existing laws. While President Museveni is framing it as a “jobs v. environment“ dispute, the opposition to the proposal is broadening to include many groups not normally aligned with environmental concerns as well as some members of Museveni’s own party. Frederick Golooba-Mutebi, Uganda: Nation Lines Up Against Museveni Over Protected Forest, The Nigerian Daily, Aug. 20, 2011.
“Jobs v. the environment” may become a prominent theme of Republican presidential candidates in the U.S. Many are bashing EPA for issuing “job-killing regulations” even as public opinion polls continue to show strong public support for the agency. John M. Broder, Bashing EPA Is New Theme in G.O.P. Race, N.Y. Times, Aug. 18, 2011, at A1. Texas Governor Rick Perry’s claims that climate scientists “have manipulated data so that they will have dollars rolling into their projects” and that “almost weekly or even daily scientists . . . are coming forward and questioning . . . man-made global warming” received “Four Pinnocchios” as whopping lies by Washington Post “Fact Checker” Glenn Kessler. Noting that five investigations into the East Anglia email hacking had exonerated the scientists involved, Kessler declared the “scandal to be a figment of Perry’s imagination.” When asked to substantiate the claim that scientists increasingly are questioning climate change, Perry’s campaign cited “The Petition Project” (http://www.petitionproject.org/) that claims 31,487 American scientists question climate change. The Fact Checker noted that the petition includes very few people with expertise in climate research, that 10 million people in the U.S. would qualify under the project’s broad definition of “scientists” (see http://www.skepticalscience.com/scrutinising-31000-scientists-in-the-OISM-Petition-Project.html), and that there have been virtually no new signers in the last three years. Glenn Kessler, “Rick Perry’s Made Up ‘Facts’ About Climate Change,” Washington Post, Aug. 20, 2011.
Last Sunday afternoon my former student Neal Kemkar, who works at the White House’s Council on Environmental Quality (CEQ), was kind enough to give my wife and I a private tour of the West Wing of the White House. White House staff are allowed to give such tours on nights and weekends when it will not interfere with other business being conducted there. Among the sites we visited were the Office of the Vice President, the White House Mess, the Rose Garden, the Cabinet Room, the Oval Office, and the Roosevelt Room. The Situation Room, where the famous photo was taken of President Obama monitoring the raid that killed Osama bin Laden, is not on the tour, but it is directly across from the White House Mess and as staffers entered and exited it was possible to get a brief glimpse inside of what is a surprisingly small room crammed with technology. Outside of the Cabinet Room is the “Blackberry basket” where all cabinet officers must leave their cellphones prior to entering cabinet meetings. As cabinet officers enter the room, a White House staffer posts stickies on each cellphone to identify its owner. The highlight of the tour is the Oval Office. President Obama has placed busts of Abraham Lincoln and Martin Luther King on the wall opposite his famous desk that is made from timbers of the HMS Resolute. One of the three original copies of the Emancipation Proclamation is above the bust of King. A bowl of Washington apples, delivered fresh each day, sits on the table between couches.
On August 15 the Japanese government announced that it will move the agency responsible for regulating nuclear power from the Ministry of Economy, Trade and Industry to the Environment Ministry. A new Nuclear Safety Agency will be created in April replacing the current Nuclear and Industrial Safety Agency and the Nuclear Safety Commission. It will be an affiliate of the Environment Ministry. The move is widely viewed as a means of strengthening regulation of nuclear power in light of the perception that the existing regulatory agencies were too close to the industry. Mitsuru Ore, Japan Tightens Nuclear Oversight, Wall St. J., April 16, 2011, at A9.
The shutdown of nuclear power plants in Japan in the wake of the March 2011 accident at the Fukushima Daiichi nuclear power complex continues to spread. Strong pressure from the Japanese public has prevented the restart of reactors temporarily idled for routine inspections. As a result, only 15 of the country’s 54 nuclear power plants are in operation now. If this trend continues through next spring Japan’s entire nuclear power industry, which accounted for 30% of the country’s electric generation prior to the accident, could be shut down. Although conservation measures reduced peak electric demand in Japan in July 2011 by 20 percent, several old fossil-fueled power plants have been placed in operation to prevent severe power shortages. In addition to increasing the cost of electricity generation by nearly $40 billion per year, increased use of oil and coal could increase Japan’s greenhouse gas (GHG) emissions by 16% over 1990 levels by the year 2013. Hiroko Tabuchi, Quake in Japan Causes Costly Shift to Fossil Fuels, N.Y. Times, Aug. 20, 2011, at B2. The Kyoto Protocol requires Japan to reduce its GHG emissions by 6% over 1990 levels during the 2008-2012 period. Meanwhile in the U.S. the board of the Tennessee Valley Authority has voted to resume construction of a nuclear power plant that had been put on hold in 1988. The decision to restart construction was taken to replace old coal-fired plants that are being retired in part due to pollution and climate change concerns. Matthew L. Wald, Alabama Nuclear Reactor, Partly Built, to Be Finished, N.Y. Times, Aug. 19, 2011, at A12.
The U.S. Department of Interior announced on August 19 that on December 14 it will conduct the first sale of leases for offshore oil drilling in the Gulf of Mexico since the Deepwater Horizon oil spill in April 2010. The Department raised the minimum bid to $100 per acre from $37.50 per acre in an effort to prevent oil companies from stockpiling properties that are never developed. Leases that are not developed can revert back to the federal government at the end of their term, though extensions routinely have been granted in the past. ExxonMobil recently sued the Interior Department for refusing to extend the term of its leases for the Julia oil field in the Gulf of Mexico that the company estimates may contain one billion barrels of recoverable oil. Russell Gold, Exxon, U.S. Government Duel Over Huge Oil Find, Wall St. J., Aug. 18, 2011, at A1. Statoil ASA of Norway, whose lease extension request also was denied, filed suit on August 15, claiming that Interior’s action was unprecedented because lease extension requests never previously have been denied for deepwater oil fields.
On August 15 the U.S. Fish & Wildlife Service released its draft comprehensive conservation plan (CCP) for the Arctic National Wildlife Refuge (ANWR) in northern Alaska. 76 Fed. Reg. 50490. Public comment on the CCP and a companion draft environmental impact statement will be accepted until November 14. The CCP governs how ANWR will be managed for the next 15 years. Among the alternative it proposes are inclusion of parts of ANWR in the National Wilderness Preservation System as well as inclusion of some of the rivers in the area in the Wild and Scenic Rivers System.
Opposition reportedly is growing to Uganda President Yoweri Museveni’s plan to turn over part of the protected Mabira Forest Reserve for development by a family of sugar magnates. The Mehta family is promising to create jobs by developing the land for sugar cane production and to build a road and a power plant. Environmentalists are outraged that the property transfer, first proposed several years ago, would be done without observing procedures required by existing laws. While President Museveni is framing it as a “jobs v. environment“ dispute, the opposition to the proposal is broadening to include many groups not normally aligned with environmental concerns as well as some members of Museveni’s own party. Frederick Golooba-Mutebi, Uganda: Nation Lines Up Against Museveni Over Protected Forest, The Nigerian Daily, Aug. 20, 2011.
“Jobs v. the environment” may become a prominent theme of Republican presidential candidates in the U.S. Many are bashing EPA for issuing “job-killing regulations” even as public opinion polls continue to show strong public support for the agency. John M. Broder, Bashing EPA Is New Theme in G.O.P. Race, N.Y. Times, Aug. 18, 2011, at A1. Texas Governor Rick Perry’s claims that climate scientists “have manipulated data so that they will have dollars rolling into their projects” and that “almost weekly or even daily scientists . . . are coming forward and questioning . . . man-made global warming” received “Four Pinnocchios” as whopping lies by Washington Post “Fact Checker” Glenn Kessler. Noting that five investigations into the East Anglia email hacking had exonerated the scientists involved, Kessler declared the “scandal to be a figment of Perry’s imagination.” When asked to substantiate the claim that scientists increasingly are questioning climate change, Perry’s campaign cited “The Petition Project” (http://www.petitionproject.org/) that claims 31,487 American scientists question climate change. The Fact Checker noted that the petition includes very few people with expertise in climate research, that 10 million people in the U.S. would qualify under the project’s broad definition of “scientists” (see http://www.skepticalscience.com/scrutinising-31000-scientists-in-the-OISM-Petition-Project.html), and that there have been virtually no new signers in the last three years. Glenn Kessler, “Rick Perry’s Made Up ‘Facts’ About Climate Change,” Washington Post, Aug. 20, 2011.
Last Sunday afternoon my former student Neal Kemkar, who works at the White House’s Council on Environmental Quality (CEQ), was kind enough to give my wife and I a private tour of the West Wing of the White House. White House staff are allowed to give such tours on nights and weekends when it will not interfere with other business being conducted there. Among the sites we visited were the Office of the Vice President, the White House Mess, the Rose Garden, the Cabinet Room, the Oval Office, and the Roosevelt Room. The Situation Room, where the famous photo was taken of President Obama monitoring the raid that killed Osama bin Laden, is not on the tour, but it is directly across from the White House Mess and as staffers entered and exited it was possible to get a brief glimpse inside of what is a surprisingly small room crammed with technology. Outside of the Cabinet Room is the “Blackberry basket” where all cabinet officers must leave their cellphones prior to entering cabinet meetings. As cabinet officers enter the room, a White House staffer posts stickies on each cellphone to identify its owner. The highlight of the tour is the Oval Office. President Obama has placed busts of Abraham Lincoln and Martin Luther King on the wall opposite his famous desk that is made from timbers of the HMS Resolute. One of the three original copies of the Emancipation Proclamation is above the bust of King. A bowl of Washington apples, delivered fresh each day, sits on the table between couches.
Sunday, August 14, 2011
New Casebook Website, Suu Kyi Protests Dam, U.S. Environmental Politics, Japan "Astroturf" Scandal, DOE Fracking Report (by Bob Percival)
Tomorrow I am launching a new website for my environmental law casebook (Environmental Regulation: Law, Science and Policy). The URL for the site is simply the acronym for the title of the casebook: www.erlsp.com. The site contains comprehensive updates for the material in the 6th edition of the casebook, which has been the most popular environmental law casebook used in U.S. law schools. By creating my own website that I personally maintain I am now freed of dependence on the University of Maryland campus IT department (hurray!), which will enable me to post frequent updates instantly from wherever I am in the world. The new 7th edition of the casebook will be published by Aspen Law and Business in early summer of 2012. Aspen has just launched an electronic version of the casebook, which is available through through Aspen’s SmartBooks program (https://www.brainshark.com/WKLB/vu?pi=zEwzmRA44z2C9Vz0). The 2011-2012 edition of my Statutory and Case Supplement arrived in book stores last week (I saw the first copy at Georgetown’s bookstore even before I received a copy from Aspen).
Aung San Suu Kyi, winner of the 1991 Nobel Peace Prize and long-time leader of Myanmar/Burma’s democratic opposition, has joined a campaign to protest China Power Investments’s construction of the Myistone Dam on the Irrawaddy River. Tension Over Dam Project Shifts Myanmar’s Politics, Wall St. J., Aug. 13, 2011. The NGO Burma Rivers Network leaked a copy of a 945-page environmental impact assessment prepared jointly by Burmese and Chinese scientists in 2009 that recommended that the project be scrapped. The project has been strongly opposed by many Burmese villagers who are being relocated due to its construction. They argue that it will cause enormous environmental damage and social dislocation while largely benefiting Burma’s authoritarian military government by increasing its revenue from cross-border sales of electricity to China.
This week’s Republican presidential debate in Iowa illustrated the bizarre state of environmental politics in the U.S. today. The Republican candidates in the debate (including even former Governor Huntsman, who says “conservation is conservative” and claims to take climate change seriously) decried overregulation and sought to demonize EPA as a voracious, “job-killing” agency bent on regulatory overreach. Yet as attorney John D. Walke of the Natural Resource Defense Council points out on his blog (http://switchboard.nrdc.org/blogs/jwalke/out-of-control_criticism_of_ep.html) , most of EPA’s regulatory actions are mandated by law, many to correct actions by the Bush EPA that were struck down by the courts as illegal. Even as Republicans denounced President Obama as anti-business, on August 9 President Obama announced a landmark agreement supported by the trucking industry and truck manufacturers to require heavy trucks to improve their fuel economy by up to 20% by the 2018 model year. It is estimated that the agreement will save 530 million barrels of oil over the lifetime of trucks built from the 2014 to 2018 model years. The industry groups reportedly were attracted to the initiative because it will harmonize federal and California fuel efficiency standards. Mark Clayton, Cheers All Around as Obama Sets Fuel Efficiency Goals for Big Trucks, Christian Science Monitor, August 9, 2011.
What explains the new anti-environmental orthodoxy where Republican presidential candidates attack each other for previously supporting cap-and-trade programs to control greenhouse gas emissions? Washington Post business columnist Steven Pearlstein blames business leaders for bankrolling what has spun into an out-of-control anti-regulatory campaign. In today’s Washington Post he writes: “When it started out, all you really wanted was to push back against a few meddlesome regulators or shave a point or two off your tax rate, but you were concerned it would look like special-interest rent-seeking. So when the Washington lobbyists came up with the clever idea of launching a campaign against over-regulation and over-taxation, you threw in some money, backed some candidates and financed a few lawsuits.” But then it morphed into “hundreds of millions of the shareholders’ dollars, laundered through once-respected organizations such as the Chamber of Commerce and the National Association of Manufacturers, phony front organizations with innocent-sounding names such as Americans for a Sound Economy, and a burgeoning network of Republic PACs and financing vehicles.” Coupled with the Supreme Court’s Citizens United decision that removed limits on corporate campaign spending, the result was the election of “Frankenpols” who turned what “started out as a reasonable attempt at political rebalancing . . . into a jihad against all regulation, all taxes and all government, waged by right-wing zealots who want to . . . shut down the regulatory agencies that protect you from unscrupulous competitors . . .”. Steven Pearlstein, Who’s To Blame for this Mess? Let’s Start with the Corporate Lobby, Wash. Post, Aug. 14, 2011,at G1.
The prospect for Japan restarting some of its undamaged nuclear reactors dimmed last week with the disclosure by a whistleblower at Kyushu Electric Power Co. that some of Japan’s largest electric companies had collaborated with government officials to stage manage public forums on the issue. Their activities allegedly included organizing phony “astroturf” groups to pack public fora with utility employees, planting questions, and coordinating email drives. The disclosures, which include allegations of document destruction to cover up the campaign, generated considerable public outrage in Japan. Chester Dawson, Scandal Taints Japan Nuclear Sector, Wall St. J., Aug. 13, 2011. Private citizens are now taking their own radiation readings and uploading them on public websites. Hot Concern, The Economist, Aug. 13, 2011, at 39. Last week Tokyo Electric Power, owner of the stricken reactors, began constructing a giant tent around them to contain the spread of radioactive contaminants, even as the Japanese government moved toward shrinking the size of mandatory evacuation areas around the crippled Fukushima Daiichi site. Mitsuru Obe, Japan Moves to Narrow Some Evacuation Areas, Wall St. J., Aug. 10, 2011.
On August 11 the Secretary of Energy’s Advisory Board (SEAB) Shale Gas Production Subcommittee issued a draft 90-day report on the rapidly growing use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. Bobbie Brown & Ian Urbina, Panel Seeks Stiffer Rules for Drilling of Gas Wells, N.Y. Times, Aug. 11, 2011, at A12. The report recommended measures to reduce the environmental impact of “fracking,” including greater monitoring and public disclosure of information about fracking, new controls on air emissions from fracking operations, the adoption of best management practices in well development and construction and the use of a manifest system for water transfers. A copy of the report is available online at: http://www.shalegas.energy.gov/resources/081111_90_day_report.pdf.
A special advertising supplement to the New York Times sponsored by Rossiskaya Gazeta, the Russian government’s paper of record, profiled the rise of environmental activists in Russia. Vladimir Ruvinsky, Out of the Woods a New Opposition, Russia Beyond the Headlines, Aug. 12, 2011, at 2. The article highlighted the efforts of former suburban working mother Evgenia Chirikova and her lawyer Alexei Navalny to try to stop construction of a road through the Khimki Forest. It noted Chirikova’s concern about the extent to which Russia respects the rule of law in light of numerous attacks on environmental activists. Apparently Russian officials believe that publicizing the work of public interest environmental activists will improve Russia’s image in the U.S.
Yesterday I stopped in a Borders bookstore to observe the progress of the chain’s going-out-of-business sale. The advertised 30% discount already had left the travel section of the store severely depleted of books. The travel book that remained in greatest supply appeared to be a guide for touring Syria - not a surprise in light of current events.
Aung San Suu Kyi, winner of the 1991 Nobel Peace Prize and long-time leader of Myanmar/Burma’s democratic opposition, has joined a campaign to protest China Power Investments’s construction of the Myistone Dam on the Irrawaddy River. Tension Over Dam Project Shifts Myanmar’s Politics, Wall St. J., Aug. 13, 2011. The NGO Burma Rivers Network leaked a copy of a 945-page environmental impact assessment prepared jointly by Burmese and Chinese scientists in 2009 that recommended that the project be scrapped. The project has been strongly opposed by many Burmese villagers who are being relocated due to its construction. They argue that it will cause enormous environmental damage and social dislocation while largely benefiting Burma’s authoritarian military government by increasing its revenue from cross-border sales of electricity to China.
This week’s Republican presidential debate in Iowa illustrated the bizarre state of environmental politics in the U.S. today. The Republican candidates in the debate (including even former Governor Huntsman, who says “conservation is conservative” and claims to take climate change seriously) decried overregulation and sought to demonize EPA as a voracious, “job-killing” agency bent on regulatory overreach. Yet as attorney John D. Walke of the Natural Resource Defense Council points out on his blog (http://switchboard.nrdc.org/blogs/jwalke/out-of-control_criticism_of_ep.html) , most of EPA’s regulatory actions are mandated by law, many to correct actions by the Bush EPA that were struck down by the courts as illegal. Even as Republicans denounced President Obama as anti-business, on August 9 President Obama announced a landmark agreement supported by the trucking industry and truck manufacturers to require heavy trucks to improve their fuel economy by up to 20% by the 2018 model year. It is estimated that the agreement will save 530 million barrels of oil over the lifetime of trucks built from the 2014 to 2018 model years. The industry groups reportedly were attracted to the initiative because it will harmonize federal and California fuel efficiency standards. Mark Clayton, Cheers All Around as Obama Sets Fuel Efficiency Goals for Big Trucks, Christian Science Monitor, August 9, 2011.
What explains the new anti-environmental orthodoxy where Republican presidential candidates attack each other for previously supporting cap-and-trade programs to control greenhouse gas emissions? Washington Post business columnist Steven Pearlstein blames business leaders for bankrolling what has spun into an out-of-control anti-regulatory campaign. In today’s Washington Post he writes: “When it started out, all you really wanted was to push back against a few meddlesome regulators or shave a point or two off your tax rate, but you were concerned it would look like special-interest rent-seeking. So when the Washington lobbyists came up with the clever idea of launching a campaign against over-regulation and over-taxation, you threw in some money, backed some candidates and financed a few lawsuits.” But then it morphed into “hundreds of millions of the shareholders’ dollars, laundered through once-respected organizations such as the Chamber of Commerce and the National Association of Manufacturers, phony front organizations with innocent-sounding names such as Americans for a Sound Economy, and a burgeoning network of Republic PACs and financing vehicles.” Coupled with the Supreme Court’s Citizens United decision that removed limits on corporate campaign spending, the result was the election of “Frankenpols” who turned what “started out as a reasonable attempt at political rebalancing . . . into a jihad against all regulation, all taxes and all government, waged by right-wing zealots who want to . . . shut down the regulatory agencies that protect you from unscrupulous competitors . . .”. Steven Pearlstein, Who’s To Blame for this Mess? Let’s Start with the Corporate Lobby, Wash. Post, Aug. 14, 2011,at G1.
The prospect for Japan restarting some of its undamaged nuclear reactors dimmed last week with the disclosure by a whistleblower at Kyushu Electric Power Co. that some of Japan’s largest electric companies had collaborated with government officials to stage manage public forums on the issue. Their activities allegedly included organizing phony “astroturf” groups to pack public fora with utility employees, planting questions, and coordinating email drives. The disclosures, which include allegations of document destruction to cover up the campaign, generated considerable public outrage in Japan. Chester Dawson, Scandal Taints Japan Nuclear Sector, Wall St. J., Aug. 13, 2011. Private citizens are now taking their own radiation readings and uploading them on public websites. Hot Concern, The Economist, Aug. 13, 2011, at 39. Last week Tokyo Electric Power, owner of the stricken reactors, began constructing a giant tent around them to contain the spread of radioactive contaminants, even as the Japanese government moved toward shrinking the size of mandatory evacuation areas around the crippled Fukushima Daiichi site. Mitsuru Obe, Japan Moves to Narrow Some Evacuation Areas, Wall St. J., Aug. 10, 2011.
On August 11 the Secretary of Energy’s Advisory Board (SEAB) Shale Gas Production Subcommittee issued a draft 90-day report on the rapidly growing use of hydraulic fracturing (“fracking”) to extract natural gas from shale formations. Bobbie Brown & Ian Urbina, Panel Seeks Stiffer Rules for Drilling of Gas Wells, N.Y. Times, Aug. 11, 2011, at A12. The report recommended measures to reduce the environmental impact of “fracking,” including greater monitoring and public disclosure of information about fracking, new controls on air emissions from fracking operations, the adoption of best management practices in well development and construction and the use of a manifest system for water transfers. A copy of the report is available online at: http://www.shalegas.energy.gov/resources/081111_90_day_report.pdf.
A special advertising supplement to the New York Times sponsored by Rossiskaya Gazeta, the Russian government’s paper of record, profiled the rise of environmental activists in Russia. Vladimir Ruvinsky, Out of the Woods a New Opposition, Russia Beyond the Headlines, Aug. 12, 2011, at 2. The article highlighted the efforts of former suburban working mother Evgenia Chirikova and her lawyer Alexei Navalny to try to stop construction of a road through the Khimki Forest. It noted Chirikova’s concern about the extent to which Russia respects the rule of law in light of numerous attacks on environmental activists. Apparently Russian officials believe that publicizing the work of public interest environmental activists will improve Russia’s image in the U.S.
Yesterday I stopped in a Borders bookstore to observe the progress of the chain’s going-out-of-business sale. The advertised 30% discount already had left the travel section of the store severely depleted of books. The travel book that remained in greatest supply appeared to be a guide for touring Syria - not a surprise in light of current events.
Monday, August 8, 2011
Japan Nuclear Compensation Fund, Frank-Dodd & Conflict Minerals, UNEP Nigeria Oil Contamination Report (by Bob Percival)
On August 3 the Japanese Parliament passed legislation to create a fund to compensate the victims of the Fukushima Daiichi nuclear accident. Under the legislation the Japense government will make an initial contribution of $26 billion to the fund and other Japanese power companies also will contribute. With most of Japan’s nuclear power plants currently shut down, extraordinary measures to reduce consumption of electricity are being employed in Japan. Momentum seems to be building for keeping the reactors shut down. Last week three top Japanese nuclear regulators were fired by Prime Minister Naoto Kan for being too close to the industry and survivors of the World War II nuclear attacks on Hiroshima and Nagasaki joined the opposition to nuclear power. Martin Fackler, Atomic Bomb Survivors Join Nuclear Power Opposition, N.Y. Times, Aug. 7, 2011, at A11.
The conflict minerals provisions of the Frank-Dodd legislation appear to be having a dramatic impact as exports of tin, tantalum and tungsten from the Congo region have dropped by more than 70% in the last year. The legislation requires companies to certify to the SEC what steps they have taken to ensure that their supply chains for such minerals are not funding armed conflicts in the area. While proponents of transparency initiatives are working to establish certification procedures, apparently many companies simply are opting to acquire their minerals from other parts of the world even if they are more expensive there This allegedly is harming legitimate mineral suppliers from the Congo region. David Aronson, How Congress Devastated Congo, Aug. 8, 2011, at A17.
As mentioned last week, I was interviewed for a story about the legal challenge by foreign airlines in the European Court of Justice to the EU’s requirement that all flights to and from EU countries be subject to limits on greenhouse gas (GHG) emissions. The article appear in the online edition of the New York Times last Tuesday. Lawrence Hurley, Airlines Face Uphill Battle in E.U. Emissions Cases, Legal Experts Say, New York Times, August 2, 2011 (http://www.nytimes.com/gwire/2011/08/02/02greenwire-airlines-face-uphill-battle-in-eu-emissions-cas-9359.html?ref=earth). The European experts interviewed for the article think the legal challenge has very little chance of succeeding.
On August 4 the UN Environment Programme released its long-awaited assessment of oil contamination of the Ogoniland region in Nigeria’ Niger Delta. The report concluded that the contamination from repeated oil spills in the area has caused widespread environmental damage and health risks and could take decades to clean up. The complete report can be downloaded at: http://www.unep.org/nigeria/ A copy of the executive summary is available online at: http://postconflict.unep.ch/publications/OEA/UNEP_OEA_ES.pdf
My former student Brooke O’Hanley, who now lives in California, was in D.C. for a conference last week. Prior to starting law school, Brooke was a pro soccer player for the Carolina Courage when they won the WUSA Championship in 2002. After playing soccer with my son on Monday, Brooke and I went to Nationals park to see Washington beat Atlanta. On Tuesday night we went to the White House for a special tour of the West Wing arranged by my former student Neal Kemkar who now works for CEQ. However we had horrendous luck because a fence jumper caused a security lockdown at the White House that resulted in our tour being canceled. Still it was great to catch up with Neal and Brooke over beers at a nearby watering hole. On August 2 I had lunch with Maryland alum Jacob Scherr, director of Global Strategy and Advocacy for the Natural Resources Defense Council (NRDC). Prior to lunch he gave me a brief tour of NRDC’s new D.C. offices on 15th Street next to the Washington Post and across the street from the Madison Hotel. Jacob is working on preparations for the Rio+20 Earth Summit in June 2012. On Friday I moved into my office at the Georgetown University Law Center where I will be teaching Environmental Law this fall as a visiting professor of law.
The conflict minerals provisions of the Frank-Dodd legislation appear to be having a dramatic impact as exports of tin, tantalum and tungsten from the Congo region have dropped by more than 70% in the last year. The legislation requires companies to certify to the SEC what steps they have taken to ensure that their supply chains for such minerals are not funding armed conflicts in the area. While proponents of transparency initiatives are working to establish certification procedures, apparently many companies simply are opting to acquire their minerals from other parts of the world even if they are more expensive there This allegedly is harming legitimate mineral suppliers from the Congo region. David Aronson, How Congress Devastated Congo, Aug. 8, 2011, at A17.
As mentioned last week, I was interviewed for a story about the legal challenge by foreign airlines in the European Court of Justice to the EU’s requirement that all flights to and from EU countries be subject to limits on greenhouse gas (GHG) emissions. The article appear in the online edition of the New York Times last Tuesday. Lawrence Hurley, Airlines Face Uphill Battle in E.U. Emissions Cases, Legal Experts Say, New York Times, August 2, 2011 (http://www.nytimes.com/gwire/2011/08/02/02greenwire-airlines-face-uphill-battle-in-eu-emissions-cas-9359.html?ref=earth). The European experts interviewed for the article think the legal challenge has very little chance of succeeding.
On August 4 the UN Environment Programme released its long-awaited assessment of oil contamination of the Ogoniland region in Nigeria’ Niger Delta. The report concluded that the contamination from repeated oil spills in the area has caused widespread environmental damage and health risks and could take decades to clean up. The complete report can be downloaded at: http://www.unep.org/nigeria/ A copy of the executive summary is available online at: http://postconflict.unep.ch/publications/OEA/UNEP_OEA_ES.pdf
My former student Brooke O’Hanley, who now lives in California, was in D.C. for a conference last week. Prior to starting law school, Brooke was a pro soccer player for the Carolina Courage when they won the WUSA Championship in 2002. After playing soccer with my son on Monday, Brooke and I went to Nationals park to see Washington beat Atlanta. On Tuesday night we went to the White House for a special tour of the West Wing arranged by my former student Neal Kemkar who now works for CEQ. However we had horrendous luck because a fence jumper caused a security lockdown at the White House that resulted in our tour being canceled. Still it was great to catch up with Neal and Brooke over beers at a nearby watering hole. On August 2 I had lunch with Maryland alum Jacob Scherr, director of Global Strategy and Advocacy for the Natural Resources Defense Council (NRDC). Prior to lunch he gave me a brief tour of NRDC’s new D.C. offices on 15th Street next to the Washington Post and across the street from the Madison Hotel. Jacob is working on preparations for the Rio+20 Earth Summit in June 2012. On Friday I moved into my office at the Georgetown University Law Center where I will be teaching Environmental Law this fall as a visiting professor of law.
Sunday, July 31, 2011
Fuel Economy Accord, Global Fracking, Japan Conservation, EU Aviation GHG Rules, Riders & Huntsman (by Bob Percival)
On Friday July 29 the Obama administration announced an agreement with automakers to support further substantial increases in federal fuel economy standards for new motor vehicles. Thirteen automakers support the proposal gradually to increase the standards to 54.5 miles per gallon (mpg) by 2025. The current fleet average standard is 27.3 mpg, rising to 35.5 mpg by 2016. Significantly, the plan has the support not only of U.S. automakers, but also of many foreign companies, although Volkswagen and Daimler AG declined to support the plan. The deal was sealed when the Obama administration agreed at the last minute to abandon a more ambitious 56.2 mpg target and to revisit the standards mid-way through their implementation to determine if they are too strict or too lenient in light of fuel prices, consumer behavior, and the state of technology. Toyota, General Motors, Ford, Chrysler, Honda, Hyundai, Mazda, Nissan, BMW, Jaguar, Kia, Mitsubishi and Volvo reportedly support the plan. Angela Greiling Keane, Automakers Agree to 54.5 MPG Fuel Economy Rule, Obama Says, Bloomberg Business Week, July 29, 2011. It is estimated that over the life of the program the stronger standards will save 12 billion barrels of oil, reduce CO2 emissions by 6 billion tons, and save consumers an average of $8,200 in fuel purchases over the life of vehicles purchased in 2025. Further details are available online at: http://www.whitehouse.gov/sites/default/files/fuel_economy_report.pdf. This agreement represents a kind of global regulatory negotiation that should help defuse legal challenges to the increase in fuel economy standards.
Eighteen months ago this blog ((Jan. 23, 2009 blog post) reported on a new tactic for opposing the flurry of midnight anti-environmental actions by the outgoing Bush administration. On Dec. 19, 2008 Tim DeChristopher, a University of Utah student protester, spontaneously entered a Bureau of Land Management (BLM) auction of lease for oil drilling on federal lands near Bryce and Canyonlands National Parks. DeChristopher outbid oil companies for 22,500 acres of the leases. Although the auction was later declared illegal due to BLM’s failure to conduct necessary environmental reviews, DeChristopher was prosecuted and convicted for making false statements on the ground that he was not a legitimate bidder. Last week a Utah federal court sentenced DeChristopher to two years in prison and a $10,000 fine. Environmentalist Bill McKibben described the sentence as an “unconscionable” punishment for an act of conscience. “It's as if [Martin Luther] King, who was DeChristopher's age when he launched the Montgomery bus boycott, had been charged with defrauding the bus company.”
On July 27 the Arkansas Oil and Gas Commission ordered a shutdown of some disposal facilities for hydraulic fracturing fluid in the state and a ban on construction of new facilities due to concerns that underground injection of these fluids had contributed to hundreds of small earthquakes that occurred in central Arkansas last year. After a six-month moratorium on new disposal facilities, the Arkansas Geologic Survey found a correlation between the earthquakes and the use of the disposal facilities. Concerns that fracking operations have contributedto earthquakes also are surfacing in Europe, causing delays in fracking operations in Blackpool, England. Guy Chazan, Fracking Pioneers Pierce Europe, Wall St. J., July 28, 2001. In an editorial comparing the fracking boom in Pennsylvania to New York’s more precautionary approach to regulating fracking, the Wall Street Journal denounced New York’s approach as a product of “obsessions of rich, big-city greens [that] explain why parts of upstate New York are the new Appalachia.” A Tale of Two Shale States, Wall St. J., July 26, 2011. On July 28 EPA proposed the first national rules to control emissions of air pollutants from fracking operations. Deborah Solomon & Tennille Tracy, EPA Unveils Air Quality Rules for Natural-Gas Fracking, Wall St. J., July 29, 2011.
Due to public concern about the tsunami-induced nuclear accident in Japan, only 16 of that country’s 54 nuclear power plants are currently in operation. This has dramatically reduced electric power production in Japan, forcing extraordinary conservation measures including setting air conditioners at 82 degrees and shifting auto production to weekends. Surprisingly, consumption of electricity has dropped so substantially that the country has power to spare. Peter Landers, Japan Snaps Back With Less Power, Wall St. J., July 29, 2011, at A1. Mikio Katayama, president of Sharp Electronics, Japan’s largest supplier of solar panels, believes that the post-accident investment climate is much more favorable for renewables. However, he notes that China’s current inventories of solar panels are said to be larger than the world’s entire demand for solar power this year. Juro Osawa, Sharp President Pushes Solar Power in Japan’s Nuclear Wake, Wall St. J., July 25, 2011, at B6.
This week I was interviewed by Greenwire about the fascinating litigation in the European Court of Justice by international airlines challenging the requirement that they participate in the EU’s emissions trading scheme for greenhouse gases (GHGs) beginning on January 1, 2012. The airlines are arguing that the EU has violated international law by attempting to regulate extraterritorial emissions (the regulations apply to emissions from all flights that depart from or arrive in the EU). They maintain that the appropriate vehicle for dealing with the growing problem of GHG emissions from aviation is the Convention on International Civil Aviation, known as the Chicago Convention.
Republicans in the U.S. House of Representatives last week added 39 anti-environmental riders to appropriations legislation for the U.S. EPA and Department of Interior. Leslie Kaufman, House Republicans Try to Curb Environmental Rules, N.Y. Times, July 28, 2011, at A16. But one Republican presidential candidate sought to distance himself from the House’s anti-environmental orgy. Speaking on July 28 to the 2nd Annual Theodore Roosevelt Dinner held by Republicans for Environmental Protection, former U.S. Ambassador to China Jon Huntsman declared that “Conservation is conservative.” Huntsman, who has pointedly refused to join other Republican candidates in reversing their prior support for measures to combat climate change, argued that “science should be driving our discussion” on this issue. Outside the Washington hotel where Huntsman spoke, climate change deniers displayed a digital billboard labeling him “Utah’s Al Gore” while Democrats criticized Huntsman for backing away from his previous support for a regional cap-and-trade program.
On Friday July 29 I attended the Washington Nationals/New York Mets game at Nationals Park with my friend Dan Guttman who is briefly back in the U.S. from China to teach summer courses. The Nationals’ starting pitcher was Chien-Ming Wang from Taiwan, who previously had pitched for the New York Yankees. He has been under contract to the Nationals for the last two years, but unable to pitch in the majors due to injuries. Prior to the game Taiwan’s representative to the U.S. Jason Yuan was on the field to be presented with a Wang jersey by Nationals manager Davey Johnson. Wang gave up four runs in the first inning before pitching well and the Nats lost 8-5, but bounced back to win the next two games agains the Mets. Wang will next pitch for the Nats on Wednesday.
Eighteen months ago this blog ((Jan. 23, 2009 blog post) reported on a new tactic for opposing the flurry of midnight anti-environmental actions by the outgoing Bush administration. On Dec. 19, 2008 Tim DeChristopher, a University of Utah student protester, spontaneously entered a Bureau of Land Management (BLM) auction of lease for oil drilling on federal lands near Bryce and Canyonlands National Parks. DeChristopher outbid oil companies for 22,500 acres of the leases. Although the auction was later declared illegal due to BLM’s failure to conduct necessary environmental reviews, DeChristopher was prosecuted and convicted for making false statements on the ground that he was not a legitimate bidder. Last week a Utah federal court sentenced DeChristopher to two years in prison and a $10,000 fine. Environmentalist Bill McKibben described the sentence as an “unconscionable” punishment for an act of conscience. “It's as if [Martin Luther] King, who was DeChristopher's age when he launched the Montgomery bus boycott, had been charged with defrauding the bus company.”
On July 27 the Arkansas Oil and Gas Commission ordered a shutdown of some disposal facilities for hydraulic fracturing fluid in the state and a ban on construction of new facilities due to concerns that underground injection of these fluids had contributed to hundreds of small earthquakes that occurred in central Arkansas last year. After a six-month moratorium on new disposal facilities, the Arkansas Geologic Survey found a correlation between the earthquakes and the use of the disposal facilities. Concerns that fracking operations have contributedto earthquakes also are surfacing in Europe, causing delays in fracking operations in Blackpool, England. Guy Chazan, Fracking Pioneers Pierce Europe, Wall St. J., July 28, 2001. In an editorial comparing the fracking boom in Pennsylvania to New York’s more precautionary approach to regulating fracking, the Wall Street Journal denounced New York’s approach as a product of “obsessions of rich, big-city greens [that] explain why parts of upstate New York are the new Appalachia.” A Tale of Two Shale States, Wall St. J., July 26, 2011. On July 28 EPA proposed the first national rules to control emissions of air pollutants from fracking operations. Deborah Solomon & Tennille Tracy, EPA Unveils Air Quality Rules for Natural-Gas Fracking, Wall St. J., July 29, 2011.
Due to public concern about the tsunami-induced nuclear accident in Japan, only 16 of that country’s 54 nuclear power plants are currently in operation. This has dramatically reduced electric power production in Japan, forcing extraordinary conservation measures including setting air conditioners at 82 degrees and shifting auto production to weekends. Surprisingly, consumption of electricity has dropped so substantially that the country has power to spare. Peter Landers, Japan Snaps Back With Less Power, Wall St. J., July 29, 2011, at A1. Mikio Katayama, president of Sharp Electronics, Japan’s largest supplier of solar panels, believes that the post-accident investment climate is much more favorable for renewables. However, he notes that China’s current inventories of solar panels are said to be larger than the world’s entire demand for solar power this year. Juro Osawa, Sharp President Pushes Solar Power in Japan’s Nuclear Wake, Wall St. J., July 25, 2011, at B6.
This week I was interviewed by Greenwire about the fascinating litigation in the European Court of Justice by international airlines challenging the requirement that they participate in the EU’s emissions trading scheme for greenhouse gases (GHGs) beginning on January 1, 2012. The airlines are arguing that the EU has violated international law by attempting to regulate extraterritorial emissions (the regulations apply to emissions from all flights that depart from or arrive in the EU). They maintain that the appropriate vehicle for dealing with the growing problem of GHG emissions from aviation is the Convention on International Civil Aviation, known as the Chicago Convention.
Republicans in the U.S. House of Representatives last week added 39 anti-environmental riders to appropriations legislation for the U.S. EPA and Department of Interior. Leslie Kaufman, House Republicans Try to Curb Environmental Rules, N.Y. Times, July 28, 2011, at A16. But one Republican presidential candidate sought to distance himself from the House’s anti-environmental orgy. Speaking on July 28 to the 2nd Annual Theodore Roosevelt Dinner held by Republicans for Environmental Protection, former U.S. Ambassador to China Jon Huntsman declared that “Conservation is conservative.” Huntsman, who has pointedly refused to join other Republican candidates in reversing their prior support for measures to combat climate change, argued that “science should be driving our discussion” on this issue. Outside the Washington hotel where Huntsman spoke, climate change deniers displayed a digital billboard labeling him “Utah’s Al Gore” while Democrats criticized Huntsman for backing away from his previous support for a regional cap-and-trade program.
On Friday July 29 I attended the Washington Nationals/New York Mets game at Nationals Park with my friend Dan Guttman who is briefly back in the U.S. from China to teach summer courses. The Nationals’ starting pitcher was Chien-Ming Wang from Taiwan, who previously had pitched for the New York Yankees. He has been under contract to the Nationals for the last two years, but unable to pitch in the majors due to injuries. Prior to the game Taiwan’s representative to the U.S. Jason Yuan was on the field to be presented with a Wang jersey by Nationals manager Davey Johnson. Wang gave up four runs in the first inning before pitching well and the Nats lost 8-5, but bounced back to win the next two games agains the Mets. Wang will next pitch for the Nats on Wednesday.
Sunday, July 24, 2011
IMO Regulates Vessel Emissions, TEL Journal, Light Bulbs, B.C. Carbon Tax (by Bob Percival)
At its 62nd meeting in London, the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) adopted important new rules to reduce pollution from ships. The rules are amendments to Annex VI of MARPOL, the International Convention for the Prevention of Pollution from Ships that now has 150 member countries representing nearly all of the world’s shipping. Annex VI governs air pollution from ships. The new rules include an Energy Efficiency Design Index (EEDI) that generally will require new ships above 400 gross tons to reduce their pollution by improving their energy efficiency. Ships built between 2015-2019 will have to be 10% more energy efficient, increasing to 20% for ships built from 2020 to 2024, and 30% for ships built after 2025. To mollify developing countries who objected to the new requirements, it was agreed that such countries can elect to delay compliance by ships flying their flags for between four and six years. All ships will be required to have an International Energy Efficiency Certificate and a Ship Energy Efficiency Management Plan (SEEMP). In an editorial the New York Times praised the regulations as “a good step forward,” while warning that the delayed compliance waiver for developing countries was “a huge loophole.” “Changing Course,” New York Times, July 23, 2011.
I am very pleased to announce that an exciting new Transnational Environmental Law (TEL) journal will go online at the end of this year with a print version being published in April 2012. This peer-reviewed journal is the brainchild of Professors Thijs Etty from VU University Amsterdam and Veerle Heyvaert from the London School of Economics, who will serve as editors-in-chief. TEL, which is being published by Cambridge University Press, represents dramatic confirmation of the growth of global environmental law along the lines of the model repeatedly described in this website. I have agreed to serve on the new journal’s editorial advisory board. The editors notes that “TEL strives for a new generation of environmental scholarship that will bridge geographical boundaries, scholarly styles and generations.” For more information about this journal visit http://journals.cambridge.org/tel
While sharp disputes continue in the U.S. Congress over raising the debt limit and future U.S. spending and tax policy, the battle over more energy efficient light bulbs has assumed the dimensions of a cultural war. On July 22, the U.S. House of Representatives actually voted on an amendment that would have prohibited the federal government from installing or buying compact fluorescent light (CFL) bulbs for congressional offices. Authored by Representative Glenn “GT” Thompson (R-Pa.), the amendment was defeated by a vote of 283-130. Thompson, who actually opposed his party’s efforts to repeal the mandate for more energy efficient light bulbs, argued that incandescent bulbs give off better light, that CFLs are dangerous because they contain mercury, and that their production benefits non-U.S. manufacturers.
British Columbia’s carbon tax appears to be a big success. It has not damaged that province’s booming economy, where unemployment remains below, and economic growth above, the average for the rest of Canada. Nor has the tax, which began at C$10/ton of carbon emissions and will increase to C$30/ton next year, harmed the poor, since the proceeds are rebated back to individual taxpayers and companies in the form of lower taxes. Per captia fuel consumption has declined in British Columbia by 4.5%, significantly more than in the rest of the country. The carbon tax now has broad political support from voters and politicians in British Columbia, even as the province conducts a hard fought referendum on repeal of the harmonized sales tax (HST). “We Have a Winner,” The Economist, July 23, 2011, at 35.
An extraordinarily brutal heat wave gripped the U.S. this week. Years ago scientists were predicting that one consequence of global warming would be far more days when the temperature exceeded 100 degrees Fahrenheit in the Baltimore-/Washington area. The temperature in Baltimore on Friday hit a record 105 degrees . On Friday night Jane Barrett, director of Maryland’s Environmental Law Clinic, and I made our annual outing with our research assistants and clinical fellows to Camden Yards to watch the Orioles play the Los Angeles Angels. Temperature at game time was 100 degrees. To help the fans combat the heat, the Orioles provided free ice and had a “misting tent” set up. The temperature was still over 90 degrees when the game finished with a 6-1 victory for the Angels.
I am very pleased to announce that an exciting new Transnational Environmental Law (TEL) journal will go online at the end of this year with a print version being published in April 2012. This peer-reviewed journal is the brainchild of Professors Thijs Etty from VU University Amsterdam and Veerle Heyvaert from the London School of Economics, who will serve as editors-in-chief. TEL, which is being published by Cambridge University Press, represents dramatic confirmation of the growth of global environmental law along the lines of the model repeatedly described in this website. I have agreed to serve on the new journal’s editorial advisory board. The editors notes that “TEL strives for a new generation of environmental scholarship that will bridge geographical boundaries, scholarly styles and generations.” For more information about this journal visit http://journals.cambridge.org/tel
While sharp disputes continue in the U.S. Congress over raising the debt limit and future U.S. spending and tax policy, the battle over more energy efficient light bulbs has assumed the dimensions of a cultural war. On July 22, the U.S. House of Representatives actually voted on an amendment that would have prohibited the federal government from installing or buying compact fluorescent light (CFL) bulbs for congressional offices. Authored by Representative Glenn “GT” Thompson (R-Pa.), the amendment was defeated by a vote of 283-130. Thompson, who actually opposed his party’s efforts to repeal the mandate for more energy efficient light bulbs, argued that incandescent bulbs give off better light, that CFLs are dangerous because they contain mercury, and that their production benefits non-U.S. manufacturers.
British Columbia’s carbon tax appears to be a big success. It has not damaged that province’s booming economy, where unemployment remains below, and economic growth above, the average for the rest of Canada. Nor has the tax, which began at C$10/ton of carbon emissions and will increase to C$30/ton next year, harmed the poor, since the proceeds are rebated back to individual taxpayers and companies in the form of lower taxes. Per captia fuel consumption has declined in British Columbia by 4.5%, significantly more than in the rest of the country. The carbon tax now has broad political support from voters and politicians in British Columbia, even as the province conducts a hard fought referendum on repeal of the harmonized sales tax (HST). “We Have a Winner,” The Economist, July 23, 2011, at 35.
An extraordinarily brutal heat wave gripped the U.S. this week. Years ago scientists were predicting that one consequence of global warming would be far more days when the temperature exceeded 100 degrees Fahrenheit in the Baltimore-/Washington area. The temperature in Baltimore on Friday hit a record 105 degrees . On Friday night Jane Barrett, director of Maryland’s Environmental Law Clinic, and I made our annual outing with our research assistants and clinical fellows to Camden Yards to watch the Orioles play the Los Angeles Angels. Temperature at game time was 100 degrees. To help the fans combat the heat, the Orioles provided free ice and had a “misting tent” set up. The temperature was still over 90 degrees when the game finished with a 6-1 victory for the Angels.
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