On Monday October 17 the U.S. Supreme Court announced that it will review a decision holding that corporations cannot be held liable under the Alien Tort Statute (ATS) because the “law of nations” does not apply to their conduct. The decision the Court agreed to review is a September 2010 judgment by the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 10-1491 (see blog post of Oct. 4, 2010). The decision was by a split (2-1) panel of the Second Circuit with Judge Cabranes writing the majority opinion and Judge Leval writing a vigorous dissent. Last summer two other U.S. Courts of Appeal expressly rejected the holding in Kiobel - the D.C. Circuit in a case involving Indonesians challenging alleged human rights abuses by ExxonMobil (see blog posts of July 11, 2011) and the Seventh Circuit in a lawsuit against Bridgestone Firestone Tire (see blog post of July 17, 2011). The split in the circuits virtually guaranteed that the Court would agree to hear the case. Although the issue is one of statutory interpretation - the meaning of the ATS’s authorization of suits challenging conduct in violation of the “law of nations” -- it essentially will require the Court to address the scope of international law. The case is likely to be argued next spring and decided by the end of June 2012.
On October 19 a coalition of seven American companies filed a complaint with the U.S. Department of Commerce and the International Trade Commission arguing that the Chinese government has unfairly subsidized Chinese companies making solar panels. The U.S. companies are asking for the agencies to impose tariffs of more than 100% on solar panels imported from China. Solar companies based in the U.S. have been laying off workers due to competition from Chinese producers who have driven down the price of such panels from $3.30 per watt in late 2008 to between $1.00 and $1.20 per watt today. China has sold more than $1.6 billion in solar panels to the U.S. in the first eight months of 2011. Environmentalists are concerned that the imposition of tariffs could cripple the diffusion of solar technology. The Chinese ministry of commerce described the complaint as creating “a lose-lose situation” that “will cause an adverse impact on the bilateral trade interests of the two counties.” Keith Bradsher, China Charges Protectionism in Call for Solar Panel Tariffs, N.Y. Times, Oct. 22, 2011, at B6.
Last week President Evo Morales of Bolivia responded to protests by indigenous groups by suddenly canceling the construction of a highway through an ecologically sensitive region of the Amazon. The decision was made after indigenous groups completed a two-month march over hundreds of miles to the capital of La Paz to demand that the project be halted. The highway was to be built by a Brazilian construction firm. The indigenous groups feared that its construction would facilitate the expansion of coca leaf farming into the Isiboro Secure National Park, spawning increased deforestation. John Lyons, Bolivian Chief Scraps Road, Wall St. Journal, Oct. 22-23, 2011, at A12.
On October 17 the U.S. Senate unanimously approved a bill updating pipeline safety regulations. A similar bill has been approved by a House committee and awaits a vote on the House floor. The legislation is a response to the September 9, 2010 pipeline explosion in San Bruno, California. It will require more testing of pipelines, increase the number of pipeline inspectors and increase fines for major violations of pipeline regulations to as much as $2.5 million. Ryan Tracy, Pipeline-Safety Measure Passes Senate Unanimously, Wall St. J, Oct. 18, 2011, at A6. In an effort to win approval of the Keystone XL pipeline, TransCanada Corporation agreed last week to post a $100 million bond to ensure that funds would be available to respond to future spills. The company also agreed to build a concrete containment ditch to surround the pipeline when it crosses through environmentally sensitive areas of Nebraska. These and other concessions are designed to prevent the Nebraska legislature from forcing significant changes in the pipeline’s proposed route.
Last week Andarko Petroleum agreed to pay BP $4 billion to cover its share of liability for the Deepwater Horizon oil spill. Andarko owned a 25% stake in the project. Andarko agreed to drop its claim of gross negligence against BP and to transfer its stake in the project back to the British company. The money will be placed in BP’s $20 billion compensation fund for victims of the spill. Last week BP received preliminary approval to drill its first new well in the Gulf since the April 2010 spill. U.S. regulators also announced last week that they will inspect the an offshore oil drilling rig built in China that Repsol YPF SA, a Spanish company, plans to deploy in Cuban waters near the coast of Florida. Russell Gold, U.S. Will Inspect Cuban Rig, Wall St. Journal, Oct. 17, 2011, at A3.
Last week I visited my alma mater Macalester College in St. Paul, Minnesota. On Thursday October 20 I had dinner with faculty from the school’s interdisciplinary Environmental Studies department. On October 21 I gave guest lectures to a seminar on Climate and Society taught by Professor Louisa Bradtmiller and to Professor Katie Pratt’s Environmental Politics and Policy class. I had a wonderful lunch with students interested in environmental law followed by individual meetings with the school’s Environmental Studies faculty and the co-directors of the school’s Legal Studies program. It is so encouraging to see how strong student interest in environmental law is at the undergraduate level.
Sunday, October 23, 2011
Sunday, October 16, 2011
Australian Carbon Tax, Ozone Lawsuit, Uganda Oil Scandal, 168th House Anti-Environment Vote, ABA SEER Conference (by Bob Percival)
On October 12 the lower house of the Australian Parliament approved by a narrow 2-vote margin (74-72) a carbon tax to combat climate change. Approval of the tax, which is expected to become law after being approval by a larger margin in the upper house of Parliament, represents a significant victory for Prime Minister Julia Gallard’s Labor government. Under the legislation more than 400 of Australia’s largest emitters of greenhouse gases (GHGs) will pay a tax of A$23 ($23.80 US) per ton of GHG emissions beginning in July 2012. This is a particularly significant development for global environmental law because Australia was the last developed country to approve the Kyoto Protocol except for the U.S., which remains the sole holdout. Due to its economy’s heavy dependence of fossil fuel industries, Australia refused to ratify the Kyoto Protocol until 2008. Peter Smith & Pilita Clark, Gillard Scores Victory as MPs Support Carbon Tax, Financial Times, Oct. 12, 2011.
On October 11 five national environmental and health groups in the U.S. filed suit to challenge the national ambient air quality standard (NAAQS) for ozone initially promulgated by the Bush administration and reinstated by the Obama administration after it decided for now not to tighten the standard. The ozone NAAQS sets the permissible concentration of the pollutant at .075 parts per million, despite the unanimous recommendation by EPA’s Clean Air Scientific Advisory Committee that it be set between .060 and .070 ppm. John M. Broder, Groups Sue After EPA Fails to Shift Ozone Rules, N.Y. Times, Oct. 12, 2011.
Last week three officials of the government of Uganda resigned due to an investigation of alleged bribery by Tullow Oil, a British company seeking to develop the country’s estimated 2.5 billion barrel oil deposits that were discovered in 2006. The officials who resigned included foreign minister Sam Kutesa, the governing party’s parliamentary whip and a lower level labor minister. Tullow had previously caused controversy by proposing to drill for oil in protected areas of the country. The Ugandan Parliament voted to impose a temporary moratorium on new oil development projects while the bribery allegations, which Tullow vehemently denies, are investigated.
Congressman Henry Waxman revealed last week that the U.S. House of Representatives has voted 168 times this year against the environment, making it “the most anti-environmental Congress in history.” Fortunately the Democratic-controlled U.S. Senate has prevented the measures approved by the House, many of which would strip EPA of authority to prevent air or water pollution, from becoming law. On October 14 the House approved a measure to block EPA from regulating coal ash as a hazardous waste. The bill would leave the problem largely to state regulation. A total of 37 Democrats joined Republicans in supporting the bill, which was approved by a vote of 267 to 144.
After class on October 13 I flew to Indianapolis in order to attend the opening of the 19th Annual Fall Meeting of the American Bar Association’s Section on Environment, Energy & Resources. More than 300 people attended the event. I was the opening keynote speaker and I spoke about “The Global Transformation of Environmental Law.” An abstract of my remarks is available online at: http://www.law.umaryland.edu/about/features/documents/aba_keynote.pdf. After my presentation I attended a session on the impact of the Fukushima Daiichi nuclear accident on regulation of nuclear power and a session on the Supreme Court’s American Electric Power v. Connecticut decision before having to return to Washington.
As a member of Maryland’s law school appointments committee I spent October 14 and 15 interviewing faculty candidates at the annual American Association of Law Schools (AALS) Faculty Recruitment Conference in Washington, D.C. We interviewed more than 30 candidates over the two days, an exhausting process, but one that was not without its intellectual rewards. After we finished on Saturday I was able to attend the final half hour of an open house for my dear friend Zhang Jingjing, her husband, and new baby, at the home of her in-laws in Garrett Park, Maryland. Jingjing, who has been called “the Erin Brockovich of China,” is currently the Deputy Director of PILnet: Global Network for Public Interest Law in Beijing. Her daughter Meghan, whose Chinese name means “little flower” is truly adorable. Jingjing will be returning to China on October 25.
On October 11 five national environmental and health groups in the U.S. filed suit to challenge the national ambient air quality standard (NAAQS) for ozone initially promulgated by the Bush administration and reinstated by the Obama administration after it decided for now not to tighten the standard. The ozone NAAQS sets the permissible concentration of the pollutant at .075 parts per million, despite the unanimous recommendation by EPA’s Clean Air Scientific Advisory Committee that it be set between .060 and .070 ppm. John M. Broder, Groups Sue After EPA Fails to Shift Ozone Rules, N.Y. Times, Oct. 12, 2011.
Last week three officials of the government of Uganda resigned due to an investigation of alleged bribery by Tullow Oil, a British company seeking to develop the country’s estimated 2.5 billion barrel oil deposits that were discovered in 2006. The officials who resigned included foreign minister Sam Kutesa, the governing party’s parliamentary whip and a lower level labor minister. Tullow had previously caused controversy by proposing to drill for oil in protected areas of the country. The Ugandan Parliament voted to impose a temporary moratorium on new oil development projects while the bribery allegations, which Tullow vehemently denies, are investigated.
Congressman Henry Waxman revealed last week that the U.S. House of Representatives has voted 168 times this year against the environment, making it “the most anti-environmental Congress in history.” Fortunately the Democratic-controlled U.S. Senate has prevented the measures approved by the House, many of which would strip EPA of authority to prevent air or water pollution, from becoming law. On October 14 the House approved a measure to block EPA from regulating coal ash as a hazardous waste. The bill would leave the problem largely to state regulation. A total of 37 Democrats joined Republicans in supporting the bill, which was approved by a vote of 267 to 144.
After class on October 13 I flew to Indianapolis in order to attend the opening of the 19th Annual Fall Meeting of the American Bar Association’s Section on Environment, Energy & Resources. More than 300 people attended the event. I was the opening keynote speaker and I spoke about “The Global Transformation of Environmental Law.” An abstract of my remarks is available online at: http://www.law.umaryland.edu/about/features/documents/aba_keynote.pdf. After my presentation I attended a session on the impact of the Fukushima Daiichi nuclear accident on regulation of nuclear power and a session on the Supreme Court’s American Electric Power v. Connecticut decision before having to return to Washington.
As a member of Maryland’s law school appointments committee I spent October 14 and 15 interviewing faculty candidates at the annual American Association of Law Schools (AALS) Faculty Recruitment Conference in Washington, D.C. We interviewed more than 30 candidates over the two days, an exhausting process, but one that was not without its intellectual rewards. After we finished on Saturday I was able to attend the final half hour of an open house for my dear friend Zhang Jingjing, her husband, and new baby, at the home of her in-laws in Garrett Park, Maryland. Jingjing, who has been called “the Erin Brockovich of China,” is currently the Deputy Director of PILnet: Global Network for Public Interest Law in Beijing. Her daughter Meghan, whose Chinese name means “little flower” is truly adorable. Jingjing will be returning to China on October 25.
Tuesday, October 11, 2011
EU Airline Carbon Cap Supported, Chiu Symposium, Koh Lecture, Keystone XL EIS, Arctic Ozone Hole & China Course (by Bob Percival)
On October 6 Juliane Kokott, the European Court of Justice Advocate General, advised the Court that it should reject a legal challenge by non-EU airlines to their upcoming inclusion in the EU’s cap-and-trade program for carbon emissions. Ms. Kokott opined that: "The inclusion in the EU emissions trading scheme of flights of all airlines from and to European airports is compatible with the principle of fair and equal opportunity laid down in the Open Skies Agreement. Indeed it is precisely that inclusion that establishes equality of opportunity in competition, as airlines holding the nationality of a third country would otherwise obtain an unjustified competitive advantage over their European competitors if the EU legislature had excluded them from the EU emissions trading scheme." Her opinion is likely to carry considerable weight with the Court, which is expected to rule on the challenge in the near future.
On October 5 & 6 the University of Maryland School of Law hosted a terrific symposium in honor of my late colleague Hungdah Chiu, one of the top East Asian legal scholars who played a major role in helping Taiwan improve relations with the PRC. Professor Jerry Cohen of NYU, the world’s leading China law scholar, delivered the opening address. The Thursday keynote on “Professor Hungdah Chiu, Taiwan and Cross-Strait Relations” was presented by Su Chi, former secretary general of Taiwan’s National Security Council. He reviewed the history of relations between Taiwan and the PRC and the important role that Professor Chiu played in shaping them. Su argued that Taiwan is no longer the “tail wagging two dogs” (the U.S. and the PRC).
In a lecture at Maryland on October 6 State Department Legal Adviser Harold Koh delivered a strong defense of the Obama administration’s policies. Koh’s lecture on “International Law in a Post 9/11 World” was the Pearl Laurence I. and Lloyd M. Gerber Memorial Lecture given annually at Maryland. Koh disputed the notion that the Obama administration has simply continued the Bush administration’s policies to combat terrorism. He articulated six ways in which Obama’s policies are significantly different from Bush’s. These include that the Obama administration has (1) placed greater reliance on legislation rather than asserting inherent constitutional authority, (2) uses International law to informs its actions, (3) has absolutely banned torture and insisted on humane treatment for prisoners, (4) has employed a mixed paradigm that observes both the laws of war and enforcement of domestic law, (5) is fighting Al-Quaeda and the Taliban rather than a “global war on terror,” and (6) that the Obama administration employs a fact-based, rather than a label-based approach, in determining legitimate targets. Koh explained that while he formerly focused on learning the names of his students, he now must concentrate on knowing the names of terrorists.
Last week it was revealed that Cardno Entrix, a Houston-based environmental contractor hired by the U.S. State Department to help the agency prepare the environmental impact statement (EIS) for the proposed Keystone XL pipeline project, has close ties to TransCanada, the company proposing to build the pipeline. TransCanada is a major client of Cardno Entrix and it recommended that the State Department hire the consultant, who also is playing a major role in organizing public hearings on the project. Environmentalists suggested that this relationship undercuts the credibility of the EIS, while State Department officials defended it. Elisabeth Rosenthal and Dan Frosch, Pipeline Review Is Faced With Question of Conflict, N.Y. Times, Oct. 8, 2011, at A11.
Ozone holes have been common over the Antarctic, but last week the journal Nature reported that the first significant ozone hole had opened up over Arctic regions last winter. The hole, which reached as far south as Russia and Mongolia last February, surprised scientists who attribute it to releases of chlorofluorocarbons (CFCs) during the twentieth century. The Montreal Protocol that phases out such ozone-depleting substances on a global basis has now been signed by 191 countries and is considered the most successful international treaty to protect the environment. The Nature article, Manney, et al., Unprecedented Arctic Ozone Loss in 2011, is available online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature10556.html.
Like millions of other uses of Apple products, I was saddened by the death of Steve Jobs last week. As someone who has regularly attended the annual Macworld conference, I had watched Jobs deliver several of his famous keynote addresses, including the introduction of iTunes in 2001, the iPhone in 2007 and the conference where Jobs gave free copies of the Keynote presentation program to everyone attending his keynote address. Under Jobs’ leadership Apple made so many insanely great products that I often wondered whether the company could have rescued the auto industry by making an iCar. There is no other corporate leader that can fill Jobs’ shoes and his passing leaves a great void.
Last week I agreed to teach a summer course on Comparative U.S./Chinese Environmental Law from July 23-August 4 at Vermont Law School. The course is likely to be followed by a class field trip to China. On October 10 I hosted an informational session for Maryland’s upcoming student trip to China during spring break from March 8-18, 2012. There is still space available on the trip and I am delighted that a few of my Georgetown students have indicated that they may join us.
On October 5 & 6 the University of Maryland School of Law hosted a terrific symposium in honor of my late colleague Hungdah Chiu, one of the top East Asian legal scholars who played a major role in helping Taiwan improve relations with the PRC. Professor Jerry Cohen of NYU, the world’s leading China law scholar, delivered the opening address. The Thursday keynote on “Professor Hungdah Chiu, Taiwan and Cross-Strait Relations” was presented by Su Chi, former secretary general of Taiwan’s National Security Council. He reviewed the history of relations between Taiwan and the PRC and the important role that Professor Chiu played in shaping them. Su argued that Taiwan is no longer the “tail wagging two dogs” (the U.S. and the PRC).
In a lecture at Maryland on October 6 State Department Legal Adviser Harold Koh delivered a strong defense of the Obama administration’s policies. Koh’s lecture on “International Law in a Post 9/11 World” was the Pearl Laurence I. and Lloyd M. Gerber Memorial Lecture given annually at Maryland. Koh disputed the notion that the Obama administration has simply continued the Bush administration’s policies to combat terrorism. He articulated six ways in which Obama’s policies are significantly different from Bush’s. These include that the Obama administration has (1) placed greater reliance on legislation rather than asserting inherent constitutional authority, (2) uses International law to informs its actions, (3) has absolutely banned torture and insisted on humane treatment for prisoners, (4) has employed a mixed paradigm that observes both the laws of war and enforcement of domestic law, (5) is fighting Al-Quaeda and the Taliban rather than a “global war on terror,” and (6) that the Obama administration employs a fact-based, rather than a label-based approach, in determining legitimate targets. Koh explained that while he formerly focused on learning the names of his students, he now must concentrate on knowing the names of terrorists.
Last week it was revealed that Cardno Entrix, a Houston-based environmental contractor hired by the U.S. State Department to help the agency prepare the environmental impact statement (EIS) for the proposed Keystone XL pipeline project, has close ties to TransCanada, the company proposing to build the pipeline. TransCanada is a major client of Cardno Entrix and it recommended that the State Department hire the consultant, who also is playing a major role in organizing public hearings on the project. Environmentalists suggested that this relationship undercuts the credibility of the EIS, while State Department officials defended it. Elisabeth Rosenthal and Dan Frosch, Pipeline Review Is Faced With Question of Conflict, N.Y. Times, Oct. 8, 2011, at A11.
Ozone holes have been common over the Antarctic, but last week the journal Nature reported that the first significant ozone hole had opened up over Arctic regions last winter. The hole, which reached as far south as Russia and Mongolia last February, surprised scientists who attribute it to releases of chlorofluorocarbons (CFCs) during the twentieth century. The Montreal Protocol that phases out such ozone-depleting substances on a global basis has now been signed by 191 countries and is considered the most successful international treaty to protect the environment. The Nature article, Manney, et al., Unprecedented Arctic Ozone Loss in 2011, is available online at: http://www.nature.com/nature/journal/vaop/ncurrent/full/nature10556.html.
Like millions of other uses of Apple products, I was saddened by the death of Steve Jobs last week. As someone who has regularly attended the annual Macworld conference, I had watched Jobs deliver several of his famous keynote addresses, including the introduction of iTunes in 2001, the iPhone in 2007 and the conference where Jobs gave free copies of the Keynote presentation program to everyone attending his keynote address. Under Jobs’ leadership Apple made so many insanely great products that I often wondered whether the company could have rescued the auto industry by making an iCar. There is no other corporate leader that can fill Jobs’ shoes and his passing leaves a great void.
Last week I agreed to teach a summer course on Comparative U.S./Chinese Environmental Law from July 23-August 4 at Vermont Law School. The course is likely to be followed by a class field trip to China. On October 10 I hosted an informational session for Maryland’s upcoming student trip to China during spring break from March 8-18, 2012. There is still space available on the trip and I am delighted that a few of my Georgetown students have indicated that they may join us.
Tuesday, October 4, 2011
Myanmar Halts Dam, Girl Scouts Limit Palm Oil Use, Geoengineering Push Urged, VJEL China Symposium (by Bob Percival)
Perhaps the most stunning news of the last week was the decision by President Thein Sein of Myanmar to cancel the construction of the $3.6 billion Myitsone dam project on the Irrawaddy River in the northern part of the country. The cancellation occurred after vigorous environmental opposition to the dam endorsed by 1991 Nobel Peace Prize winner Aung San Suu Kyi, who recently emerged after seven years of house arrest imposed by the country’s former military government. Myanmar residents questioned why the country was planning to flood an area the size of SIngapore and cause immense environmental damage, as documented in an environmental impact assessment, for a project from which 90% of the electrical generation was to be exported to China. The cancellation apparently has angered Chinese officials, including Lu Qizhou, president of the China Power Investment Corporation that was constructing the 6,000 MW project.
Last week the Girl Scouts of America announced that they will move to reduce the use of palm oil in Girl Scout cookies in response to an environmental campaign launched by two teenager scouts from Michigan - Madison Vorva and Rhiannon Tomtishen. The campaign was launched after revelations that palm oil plantations in Southeast Asia had been contributing to massive deforestation that contributes to climate change. The Girl Scouts announced that they have directed their suppliers to use as little palm oil as possible in Thin Mints, Samoas, and Trefoils and to switch to sustainable palm oil by 2015. Julie Jargon, Girl Scouts Move to Limit Palm Oil in Cookies, Wall St. J., Sept. 28, 2011.
The Bipartisan Policy Center’s 18-member Task Force on Climate Remediation Research has endorsed a crash research program into geoengineering as a means to protect the planet from climate change. Geoengineering includes proposals to scatter particles in the upper atmosphere to reflect sunlight away. A copy of the report is available online at: http://www.bipartisanpolicy.org/sites/default/files/BPC%20Climate%20Remediation%20Final%20Report.pdf
An independent panel in Japan revealed on September 30 that the country’s Nuclear and Industrial Safety Agency had sought to enlist employees of the country’s nuclear power plants to attend public forums and voice support for nuclear power. Mitsuru Ore, Japan Nuclear Agency Adds to Mistrust, Wall St. J., Oct. 1-2, 2012, at A11. This tactic seems to mimic that employed by the American Petroleum Institute in organizing “energy citizen” rallies enlisting employees of fossil fuel power plants to exaggerate opposition to environmental regulation, except for the additional scandal of a government agency being involved in promoting the rallies. Another panel advising the Japanese government concluded that it will be difficult to ensure the financial stability of the Tokyo Electric Power Company without allowing it to restart some of its undamaged nuclear reactors. Mitsuru Ore & Kana Inagaki, Tepco Reactor Restarts Are Push, Wall St. J., Oct. 4, 2011 at B5.
This week I received a copy of the latest issue of the Vermont Journal of Environmental Law with articles from Vermont Law School’s March 2011 symposium on “China’s Environmental Governance.” The articles include John Nagle’s “How Much Should China Pollute?,” Jason Czarneski’s “Climate Policy & U.S. China Relations,” Adam Moser’s “Pragmatism Not Dogmatism: The Inconvenient Need for Border Asjustment Tariffs Based on What Is Known About Climate Change, Trade and China,” Jennifer Turner’s “Choke Point China: Confronting Water Scarcity and Energy Demand in the World’s Largest Economy,” and my article on “China’s ‘Green Leap Forward’ Toward Global Environmental Leadership.” The articles are not yet posted online, but hopefully the VJEL will soon update its website.
Last week the Girl Scouts of America announced that they will move to reduce the use of palm oil in Girl Scout cookies in response to an environmental campaign launched by two teenager scouts from Michigan - Madison Vorva and Rhiannon Tomtishen. The campaign was launched after revelations that palm oil plantations in Southeast Asia had been contributing to massive deforestation that contributes to climate change. The Girl Scouts announced that they have directed their suppliers to use as little palm oil as possible in Thin Mints, Samoas, and Trefoils and to switch to sustainable palm oil by 2015. Julie Jargon, Girl Scouts Move to Limit Palm Oil in Cookies, Wall St. J., Sept. 28, 2011.
The Bipartisan Policy Center’s 18-member Task Force on Climate Remediation Research has endorsed a crash research program into geoengineering as a means to protect the planet from climate change. Geoengineering includes proposals to scatter particles in the upper atmosphere to reflect sunlight away. A copy of the report is available online at: http://www.bipartisanpolicy.org/sites/default/files/BPC%20Climate%20Remediation%20Final%20Report.pdf
An independent panel in Japan revealed on September 30 that the country’s Nuclear and Industrial Safety Agency had sought to enlist employees of the country’s nuclear power plants to attend public forums and voice support for nuclear power. Mitsuru Ore, Japan Nuclear Agency Adds to Mistrust, Wall St. J., Oct. 1-2, 2012, at A11. This tactic seems to mimic that employed by the American Petroleum Institute in organizing “energy citizen” rallies enlisting employees of fossil fuel power plants to exaggerate opposition to environmental regulation, except for the additional scandal of a government agency being involved in promoting the rallies. Another panel advising the Japanese government concluded that it will be difficult to ensure the financial stability of the Tokyo Electric Power Company without allowing it to restart some of its undamaged nuclear reactors. Mitsuru Ore & Kana Inagaki, Tepco Reactor Restarts Are Push, Wall St. J., Oct. 4, 2011 at B5.
This week I received a copy of the latest issue of the Vermont Journal of Environmental Law with articles from Vermont Law School’s March 2011 symposium on “China’s Environmental Governance.” The articles include John Nagle’s “How Much Should China Pollute?,” Jason Czarneski’s “Climate Policy & U.S. China Relations,” Adam Moser’s “Pragmatism Not Dogmatism: The Inconvenient Need for Border Asjustment Tariffs Based on What Is Known About Climate Change, Trade and China,” Jennifer Turner’s “Choke Point China: Confronting Water Scarcity and Energy Demand in the World’s Largest Economy,” and my article on “China’s ‘Green Leap Forward’ Toward Global Environmental Leadership.” The articles are not yet posted online, but hopefully the VJEL will soon update its website.
Monday, September 26, 2011
Court Lifts Injunction Barring Ecuador Collection of Chevron Judgment, Chinese Protests, Nuclear Power & TRAIN Act (by Bob Percival)
The long-running dispute between residents of Ecuador and the Chevron Corporation over the cleanup of oil pollution from drilling decades ago in Ecuador took a sudden turn last week. On Monday September 19 the U.S. Court of Appeals for the Second Circuit issued an order vacating a federal district court’s injunction barring enforcement of an Ecuadoran trial court’s $18 billion judgment against Chevron. The order was issued after the three judges hearing an appeal of injunction (Rosemary S. Pooler, Richard C. Wesley, and Gerald E. Lynch) expressed extreme skepticism over its legality at oral argument on September 16. The injunction had been issued by federal district judge Lewis Kaplan in March in response to a RICO lawsuit by Chevron accusing the plaintiffs of trying to shake down the company through a fraudulent conspiracy. The Second Circuit denied the plaintiffs’ request for a writ of mandamus removing Judge Kaplan from the case for bias, but it granted the plaintiffs’ motion for an order imposing a stay to prevent Judge Kaplan from proceeding with a November trial as a prelude to making the injunction permanent. The court indicated that it will issue an opinion explaining its order in due course.
Plaintiffs’ counsel assured the court at oral argument that they will not seek to enforce the Ecuadoran judgment until after review of it has been completed by an appellate court in Ecuador, which is expected to take several months. Thus the main impact of the court’s order is to shift the focus of the litigation for now back to the Ecuadoran courts. Some elements of the judgment are highly questionable, particularly the provision that what initially was an $8.6 billion judgment would double in size if Chevron did not immediately apologize to the people of Ecuador for its actions. Thus, if the Ecuadoran appellate courts are fair they should dramatically reduce the size of the judgment. But Chevron’s claim that the judgment was a product of fraud seems far-fetched. This is a case that should have been settled long ago, but the level of animosity between the parties is so high that this seems most unlikely at this point. Chevron (and its predecessor in interest Texaco) could have had this case decided by a U.S. federal court, which is where it initially was filed by the plaintiffs in 1993, but the company persuaded the U.S. court that Ecuador was a more convenient forum. For the last year or so Chevron’s legal strategy seems to have been to bleed the plaintiffs dry by filing actions in new venues including the Permanent Court of Arbitration in the Hague and several U.S. courts in aid of discovery on its fraud allegations. However, when the plaintiffs obtained financing from several hedge funds, the playing field was leveled so that it is now a battle between well-heeled U.S. law firms with Gibson, Dunn representing Chevron and Patton Boggs representing the Ecuadoran plaintiffs. Stay tuned, but do not expect a quick resolution of this case.
Four days of vehement protests by Chinese citizens about air and water pollution from a solar panel factory owned by the Zhejiang JinkoSolar Company resulted in the Chinese government temporarily shutting down production at the plant. Residents blame the plant, which is located in Haining city in eastern China, for an unusual number of cancer deaths in the area.
New York authorities have arrested 12 people in Chinatown on misdemeanor charges for illegally importing a rat poison that is 60 times more potent than the level considered safe under U.S. pesticide regulations. The pesticide, which contains the chemical brodifacoum, apparently was smuggled into the U.S. from China. U.S. EPA officials expressed particular concern about the impact of the illegal rat poison on young children. William K. Rashbaum, 12 Held in Sale of Pest Poisons, One 60 Times as Potent as the Legal Limit, N.Y. Times, Sept. 20, 2011, at A20.
Siemens, the largest energy conglomerate in Europe, announced that it will stop building nuclear powerplants anywhere in the world. The company had built 17 nuclear power plants in Germany, but it is now concentrating on its renewable energy division, which has experienced the fastest growth of any of its lines of business. Judy Dempsey, Siemens Ends Building of Nuclear Power Plants, N.Y. Times, Sept. 20, 2011, at B2. Russian authorities have decided to extend the life of the country’s nuclear power plants to 45 years from 30 years. These include 11 Chernobyl-era nuclear (RMBK) reactors designed to operate without containment vessels. RMBKs have been retired in Ukraine and Lithuania, but Russia has refused to bow to international pressure to shut down its aging reactors. David Crawford & Rebecca Smith, Russia to Extend Life of Aging Reactors, Wall St. J., Sept. 22, 2011, at A15.
On Friday September 23, the U.S. House of Representatives by a vote of 249-169 approved the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, which is designed to halt EPA Clean Air Act regulations. Fewer than 20 Democrats supported the legislation, which President Obama has threatened to veto. The TRAIN Act would block EPA rules from taking effect while establishing an interagency panel chaired by the Commerce Department to examine the impact of EPA rules on the economy. The legislation is not expected to pass the U.S. Senate.
During down time while in Boston for a family wedding last weekend, I attended the opening session of a Conference on the Constitutional Convention at Harvard Law School. Harvard law professor Larry Lessig and Tea Party Patriot founder Mark Meckler argued at the opening that both fed up conservatives and liberals should support using Article V of the Constitution to call a new convention to rewrite the world's oldest written constitution. I think it is a really bad idea, particularly at a time of extreme political polarization, to put our founding charter up for grabs. My fears were compounded when Texas law professor Sandy Levinson proposed that delegates to such a constitutional convention (that Congress is supposed to call after petitioned by two-thirds of the states) should be selected by lottery.
Plaintiffs’ counsel assured the court at oral argument that they will not seek to enforce the Ecuadoran judgment until after review of it has been completed by an appellate court in Ecuador, which is expected to take several months. Thus the main impact of the court’s order is to shift the focus of the litigation for now back to the Ecuadoran courts. Some elements of the judgment are highly questionable, particularly the provision that what initially was an $8.6 billion judgment would double in size if Chevron did not immediately apologize to the people of Ecuador for its actions. Thus, if the Ecuadoran appellate courts are fair they should dramatically reduce the size of the judgment. But Chevron’s claim that the judgment was a product of fraud seems far-fetched. This is a case that should have been settled long ago, but the level of animosity between the parties is so high that this seems most unlikely at this point. Chevron (and its predecessor in interest Texaco) could have had this case decided by a U.S. federal court, which is where it initially was filed by the plaintiffs in 1993, but the company persuaded the U.S. court that Ecuador was a more convenient forum. For the last year or so Chevron’s legal strategy seems to have been to bleed the plaintiffs dry by filing actions in new venues including the Permanent Court of Arbitration in the Hague and several U.S. courts in aid of discovery on its fraud allegations. However, when the plaintiffs obtained financing from several hedge funds, the playing field was leveled so that it is now a battle between well-heeled U.S. law firms with Gibson, Dunn representing Chevron and Patton Boggs representing the Ecuadoran plaintiffs. Stay tuned, but do not expect a quick resolution of this case.
Four days of vehement protests by Chinese citizens about air and water pollution from a solar panel factory owned by the Zhejiang JinkoSolar Company resulted in the Chinese government temporarily shutting down production at the plant. Residents blame the plant, which is located in Haining city in eastern China, for an unusual number of cancer deaths in the area.
New York authorities have arrested 12 people in Chinatown on misdemeanor charges for illegally importing a rat poison that is 60 times more potent than the level considered safe under U.S. pesticide regulations. The pesticide, which contains the chemical brodifacoum, apparently was smuggled into the U.S. from China. U.S. EPA officials expressed particular concern about the impact of the illegal rat poison on young children. William K. Rashbaum, 12 Held in Sale of Pest Poisons, One 60 Times as Potent as the Legal Limit, N.Y. Times, Sept. 20, 2011, at A20.
Siemens, the largest energy conglomerate in Europe, announced that it will stop building nuclear powerplants anywhere in the world. The company had built 17 nuclear power plants in Germany, but it is now concentrating on its renewable energy division, which has experienced the fastest growth of any of its lines of business. Judy Dempsey, Siemens Ends Building of Nuclear Power Plants, N.Y. Times, Sept. 20, 2011, at B2. Russian authorities have decided to extend the life of the country’s nuclear power plants to 45 years from 30 years. These include 11 Chernobyl-era nuclear (RMBK) reactors designed to operate without containment vessels. RMBKs have been retired in Ukraine and Lithuania, but Russia has refused to bow to international pressure to shut down its aging reactors. David Crawford & Rebecca Smith, Russia to Extend Life of Aging Reactors, Wall St. J., Sept. 22, 2011, at A15.
On Friday September 23, the U.S. House of Representatives by a vote of 249-169 approved the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, which is designed to halt EPA Clean Air Act regulations. Fewer than 20 Democrats supported the legislation, which President Obama has threatened to veto. The TRAIN Act would block EPA rules from taking effect while establishing an interagency panel chaired by the Commerce Department to examine the impact of EPA rules on the economy. The legislation is not expected to pass the U.S. Senate.
During down time while in Boston for a family wedding last weekend, I attended the opening session of a Conference on the Constitutional Convention at Harvard Law School. Harvard law professor Larry Lessig and Tea Party Patriot founder Mark Meckler argued at the opening that both fed up conservatives and liberals should support using Article V of the Constitution to call a new convention to rewrite the world's oldest written constitution. I think it is a really bad idea, particularly at a time of extreme political polarization, to put our founding charter up for grabs. My fears were compounded when Texas law professor Sandy Levinson proposed that delegates to such a constitutional convention (that Congress is supposed to call after petitioned by two-thirds of the states) should be selected by lottery.
Sunday, September 18, 2011
New BP Spill Report, Shanghai EPB Suspends Lead Plants, Japan Nuclear Regulations, Sotomayor at Maryland Name Launch (by Bob Percival)
On September 14 the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the U.S. Coast Guard released their final joint report on last year’s oil spill in the Gulf of Mexico. The report was highly critical of BP and its contractors Halliburton and Transocean, while finding that BP bore ultimate responsibility for the spill. Links to each part of the report are available at: http://www.boemre.gov/ooc/press/2011/press0914.htm
On Friday the Shanghai Environmental Protection Board (EPB) ordered operations suspended at two battery manufacturing plants due to the discovery of elevated lead levels in children living nearby. The action was taken after a microblogging campaign by parents of children found to have elevated levels of lead when given health tests at the start of the school year. It was reported that 12 of 25 children found to have elevated lead levels were hospitalized. The levels ranged up to 50 micrograms per deciliter, five times the 10 microgram/dl level of medical concern recognized by health authorities in both the U.S. and China. The plants, which are located in suburban Shanghai near the Pudong International Airport, include one owned by U.S.-based Johnson Controls Inc. A company spokesperson noted that Johnson’s emissions of lead are one-seventh the relevant standard and its wastewater emissions of lead are only one-tenth permissible limits. Johnson’s Shanghai plant is 13 years old and was acquired from another company six years ago. Johnson recently announced that it would build a new $100 million battery plant in China. James T. Areddy, Shanghai Shuts Plants in Lead Probe, Wall St. J., September 17, 2011, at A10. In 1990 the U.S. Supreme Court held that a Johnson Controls’ policy barring women of child-bearing age from positions where they would be exposed to lead from battery manufacturing constituted unlawful sex discrimination. In August China suspended operation of companies that mine and produce rare earth metals in order to conduct a three-month review of their environmental practices. Some suspect that this move, which has sent global prices of compact fluorescent light bulbs soaring, may be motivated by a desire to deflect complaints of protectionism. Keith Bradsher, China Consolidates Grip on Rare Earths, N.Y. Times, Sept. 16, 2011, at B1.
Japan officials are drafting new regulations to govern operation of the country’s nuclear power plants in the wake of the March 2011 tsunami and nuclear accident at the Fukushima Daiichi power complex. Kojiro Irikura, who is chairing the panel drafting regulations for the the country’s Nuclear Safety Commission, stated last week that all plants will have to be able to withstand a 9.0 earthquake and 15-meter tsunami. Only 11 of Japan’s 54 nuclear reactors are currently operating, but federal authorities are trying to encourage the restart of some of the plants. Irikura believes that previous safety guidelines were too lenient because they focused on most likely events rather than worst case scenarios. Chester Dawson, Big Japan Quakes Still a risk, Wall St. J., Sept. 16, 2011, R 10.
Industry efforts to make federal regulations a scapegoat for the sluggish economy continued this week when U.S. Speaker of the House John Boehner told the Economic Club of Washington that “219 new rules” were pending that each would cost the U.S. economy at least $100 million per year. After further investigation Washington Post Fact Checker Glenn Kessler discovered that a significant portion of these “rules” are simply agency actions to transfer federal funds to recipients, many involve rules that generate benefits greatly in excess of their projected costs, and others involve actions already completed or that are not likely to be completed in the near future. As a result Kessler awarded “three Pinnochios” to Boehner. Glenn Kessler, John Boehner’s Misfire on Pending Federal Regulations, Sept. 16, 2011.
On Friday Justice Sonia Sotomayor came to the University of Maryland School of Law to participate in ceremonies marking the launch of its new name as the University of Maryland Francis King Carey School of Law. The new name honors the school’s 1880 graduate whose decendants are responsible for the W.P. Carey Foundation’s $30 million gift to the school. Sotomayor was both warm and eloquent in responding to questions from both Maryland law students and high school students.
On Friday the Shanghai Environmental Protection Board (EPB) ordered operations suspended at two battery manufacturing plants due to the discovery of elevated lead levels in children living nearby. The action was taken after a microblogging campaign by parents of children found to have elevated levels of lead when given health tests at the start of the school year. It was reported that 12 of 25 children found to have elevated lead levels were hospitalized. The levels ranged up to 50 micrograms per deciliter, five times the 10 microgram/dl level of medical concern recognized by health authorities in both the U.S. and China. The plants, which are located in suburban Shanghai near the Pudong International Airport, include one owned by U.S.-based Johnson Controls Inc. A company spokesperson noted that Johnson’s emissions of lead are one-seventh the relevant standard and its wastewater emissions of lead are only one-tenth permissible limits. Johnson’s Shanghai plant is 13 years old and was acquired from another company six years ago. Johnson recently announced that it would build a new $100 million battery plant in China. James T. Areddy, Shanghai Shuts Plants in Lead Probe, Wall St. J., September 17, 2011, at A10. In 1990 the U.S. Supreme Court held that a Johnson Controls’ policy barring women of child-bearing age from positions where they would be exposed to lead from battery manufacturing constituted unlawful sex discrimination. In August China suspended operation of companies that mine and produce rare earth metals in order to conduct a three-month review of their environmental practices. Some suspect that this move, which has sent global prices of compact fluorescent light bulbs soaring, may be motivated by a desire to deflect complaints of protectionism. Keith Bradsher, China Consolidates Grip on Rare Earths, N.Y. Times, Sept. 16, 2011, at B1.
Japan officials are drafting new regulations to govern operation of the country’s nuclear power plants in the wake of the March 2011 tsunami and nuclear accident at the Fukushima Daiichi power complex. Kojiro Irikura, who is chairing the panel drafting regulations for the the country’s Nuclear Safety Commission, stated last week that all plants will have to be able to withstand a 9.0 earthquake and 15-meter tsunami. Only 11 of Japan’s 54 nuclear reactors are currently operating, but federal authorities are trying to encourage the restart of some of the plants. Irikura believes that previous safety guidelines were too lenient because they focused on most likely events rather than worst case scenarios. Chester Dawson, Big Japan Quakes Still a risk, Wall St. J., Sept. 16, 2011, R 10.
Industry efforts to make federal regulations a scapegoat for the sluggish economy continued this week when U.S. Speaker of the House John Boehner told the Economic Club of Washington that “219 new rules” were pending that each would cost the U.S. economy at least $100 million per year. After further investigation Washington Post Fact Checker Glenn Kessler discovered that a significant portion of these “rules” are simply agency actions to transfer federal funds to recipients, many involve rules that generate benefits greatly in excess of their projected costs, and others involve actions already completed or that are not likely to be completed in the near future. As a result Kessler awarded “three Pinnochios” to Boehner. Glenn Kessler, John Boehner’s Misfire on Pending Federal Regulations, Sept. 16, 2011.
On Friday Justice Sonia Sotomayor came to the University of Maryland School of Law to participate in ceremonies marking the launch of its new name as the University of Maryland Francis King Carey School of Law. The new name honors the school’s 1880 graduate whose decendants are responsible for the W.P. Carey Foundation’s $30 million gift to the school. Sotomayor was both warm and eloquent in responding to questions from both Maryland law students and high school students.
Sunday, September 11, 2011
Tenth Anniversary of 9/11, NRC Allows Withdrawal of Yucca Mt. Application, More Fallout from Japanese Nuclear Accident (by Bob Percival)
Sunday September 11 marked the 10th anniversary of the 9/11 terrorist attacks in New York City, Washington, D.C. and Pennsylvania. I remember leaving my home in Washington, D.C. on the morning of September 11, 2001 for the trip to Baltimore and feeling exhilarated by what a spectacularly beautiful day it was. I was on the telephone from my car to a financial services company in New York City when the news broke about the first plane to hit the World Trade Center. I continued to drive to Baltimore and eventually was able to reach my wife who was working in an elementary school on Capitol Hill. She reported that they could see the smoke rising from the Pentagon where another plane had crashed. When I reached Baltimore I called her parents because it was difficult for anyone to make contact by mobile phones given circuit overload.
Two events that occurred the day before and the day after 9/11 remain particularly striking to me. On Monday July 10, 2001 I was a guest speaker at the annual conference of the National Association of Administrative Law Judges in Rehoboth Beach, Delaware. My talk was on the history of environmental risk regulation and I remember noting that two of the concerns that A cartoon published the weekend before depicted someone’s car being hit by a shark talking on a cellphone. While driving back to Baltimore after my morning presentation, I listened in my car to C-Span Radio which broadcast a presentation from the National Press Club by Delaware Senator Joe Biden. He was criticizing the Bush administration for its decision to pursue a missile defense shield for the U.S. Biden argued that future threats facing America were unlikely to include nuclear missiles, but instead would feature unconventional attacks by terrorists, including perhaps suitcase nuclear bombs.
The second memory was that I was scheduled to host a delegation of environmental law professors from Iran who were going to speak at a faculty lunch at Maryland day after 9/11. In May 2001 I had joined Bern Johnson from E-Law International and Richard Lazarus from Georgetown on a trip to Iran to present a week-long environmental law workshop at the University of Tehran. The trip was sponsored by a group called Search for Common Ground. On that trip we met many inspiring individuals from the public interest movement in Iran which was struggling mightily against an oppressive government. I subsequently agreed to serve on the Advisory Board of the University of Tehran’s impressive Journal of Environmental Research. The five-person delegation from Iran was at Georgetown on 9/11 and we agreed to continue with our scheduled program at Maryland the following day. During the program I showed the faculty a film I had made about our workshop that included lots of scenes of daily life in Iran. The five Iranian environmental law professors participated in a panel discussion that touched on the events of the previous day, with the Iranians questioning why their government was immediately considered a suspect. The Iranians reported that their country was in mourning for the victims of the terrorist attacks and that the Mayor of Tehran had sent his condolences to Mayor Giuliani. The group visited my Environmental Law class that day where they discussed their efforts to upgrade Iran’s environmental laws.
I regret that subsequent events have made it impossible for me to continue regular contact with the inspiring public interest community in Iran even though my name is still on the list of advisors to the Journal of Environmental Research, which I receive regularly and read with interest. Prior to 9/11 the Bush administration had tried to justify its abrupt March 2001 about-face on controlling emissions of greenhouse gases by arguing that the cost would wreck the U.S. economy. Yet after 9/11 it spent far more money on the “war on terror” without producing the forecast economic damage (the severe 2008 global recession was spawned by subsequent events). An article in today’s New York Times estimates that the cost of the 9/11 attacks to the U.S. has been $3.3 trillion when one takes into account the physical and economic damage of the attacks ($55 billion and $123 billion, respectively), the cost of increased homeland security ($589 billion), the cost of wars in Iraq and Afghanistan ($1.649 trillion plus $277 in future war funding through 2016 and $589 billion for the future cost of caring for veterans). Amanda Cox, A 9/11 Tally: $3.3 Trillion, N.Y. Times, Sept. 11, 2011, at 13 (special section). For an explanation of how security barriers have become more ecologically conscious, see Henry Fountain, The Age of the Eco-Citadel, N.Y. Times, Sept. 11, 2011, at 23 (“The Reckoning” special section).
Last week the U.S. Nuclear Regulatory Commission (NRC) split 2-2 (with one recusal due to a perceived conflict of interest) in ruling on a motion to deny the Obama administration’s request to withdraw the Department of Energy’s application to site a repository of high-level radioactive waste at Yucca Mountain, Nevada. As a result of this vote, the application will be withdrawn. Ryan TRacy, Regulator’s Vote Dims Prospects for Yucca Project, Wall St. J., Sept. 10, 2011.
Yoshio Hachiro, the new Japanese minister for trade and industry, was forced to resign last week as a result of statements he made about the Fukushima Daiichi nuclear accident. Last Thursday he created a furor by referring to cities in the exclusion zone around the plant as “dead towns.” Later that day he exclaimed “look out, radiation!” while pretending to wipe contamination off his protective clothing on a reporter after returning from a trip to the plant. Martin Fackler, Japense Official Resigns Over Radiation Joke, N.Y. TImes, Sept. 9, 2011.
A bit of good news: the adult smoking rate in the United States fell last year. Only 19.3% of adults in the U.S. smoked in 2010. This is a decrease from the 21% who reportedly smoking five years earlier in 2005.
Two events that occurred the day before and the day after 9/11 remain particularly striking to me. On Monday July 10, 2001 I was a guest speaker at the annual conference of the National Association of Administrative Law Judges in Rehoboth Beach, Delaware. My talk was on the history of environmental risk regulation and I remember noting that two of the concerns that A cartoon published the weekend before depicted someone’s car being hit by a shark talking on a cellphone. While driving back to Baltimore after my morning presentation, I listened in my car to C-Span Radio which broadcast a presentation from the National Press Club by Delaware Senator Joe Biden. He was criticizing the Bush administration for its decision to pursue a missile defense shield for the U.S. Biden argued that future threats facing America were unlikely to include nuclear missiles, but instead would feature unconventional attacks by terrorists, including perhaps suitcase nuclear bombs.
The second memory was that I was scheduled to host a delegation of environmental law professors from Iran who were going to speak at a faculty lunch at Maryland day after 9/11. In May 2001 I had joined Bern Johnson from E-Law International and Richard Lazarus from Georgetown on a trip to Iran to present a week-long environmental law workshop at the University of Tehran. The trip was sponsored by a group called Search for Common Ground. On that trip we met many inspiring individuals from the public interest movement in Iran which was struggling mightily against an oppressive government. I subsequently agreed to serve on the Advisory Board of the University of Tehran’s impressive Journal of Environmental Research. The five-person delegation from Iran was at Georgetown on 9/11 and we agreed to continue with our scheduled program at Maryland the following day. During the program I showed the faculty a film I had made about our workshop that included lots of scenes of daily life in Iran. The five Iranian environmental law professors participated in a panel discussion that touched on the events of the previous day, with the Iranians questioning why their government was immediately considered a suspect. The Iranians reported that their country was in mourning for the victims of the terrorist attacks and that the Mayor of Tehran had sent his condolences to Mayor Giuliani. The group visited my Environmental Law class that day where they discussed their efforts to upgrade Iran’s environmental laws.
I regret that subsequent events have made it impossible for me to continue regular contact with the inspiring public interest community in Iran even though my name is still on the list of advisors to the Journal of Environmental Research, which I receive regularly and read with interest. Prior to 9/11 the Bush administration had tried to justify its abrupt March 2001 about-face on controlling emissions of greenhouse gases by arguing that the cost would wreck the U.S. economy. Yet after 9/11 it spent far more money on the “war on terror” without producing the forecast economic damage (the severe 2008 global recession was spawned by subsequent events). An article in today’s New York Times estimates that the cost of the 9/11 attacks to the U.S. has been $3.3 trillion when one takes into account the physical and economic damage of the attacks ($55 billion and $123 billion, respectively), the cost of increased homeland security ($589 billion), the cost of wars in Iraq and Afghanistan ($1.649 trillion plus $277 in future war funding through 2016 and $589 billion for the future cost of caring for veterans). Amanda Cox, A 9/11 Tally: $3.3 Trillion, N.Y. Times, Sept. 11, 2011, at 13 (special section). For an explanation of how security barriers have become more ecologically conscious, see Henry Fountain, The Age of the Eco-Citadel, N.Y. Times, Sept. 11, 2011, at 23 (“The Reckoning” special section).
Last week the U.S. Nuclear Regulatory Commission (NRC) split 2-2 (with one recusal due to a perceived conflict of interest) in ruling on a motion to deny the Obama administration’s request to withdraw the Department of Energy’s application to site a repository of high-level radioactive waste at Yucca Mountain, Nevada. As a result of this vote, the application will be withdrawn. Ryan TRacy, Regulator’s Vote Dims Prospects for Yucca Project, Wall St. J., Sept. 10, 2011.
Yoshio Hachiro, the new Japanese minister for trade and industry, was forced to resign last week as a result of statements he made about the Fukushima Daiichi nuclear accident. Last Thursday he created a furor by referring to cities in the exclusion zone around the plant as “dead towns.” Later that day he exclaimed “look out, radiation!” while pretending to wipe contamination off his protective clothing on a reporter after returning from a trip to the plant. Martin Fackler, Japense Official Resigns Over Radiation Joke, N.Y. TImes, Sept. 9, 2011.
A bit of good news: the adult smoking rate in the United States fell last year. Only 19.3% of adults in the U.S. smoked in 2010. This is a decrease from the 21% who reportedly smoking five years earlier in 2005.
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