Cuba Trip, Durban COP, Beijing Air Pollution, U.S. Battery Recycling in Mexico, Laos Dam, Fracking Study & Call for Papers (by Bob Percival)

I am publishing this blog entry a little early this week because tomorrow morning I will be flying to Havana for a 10-day people-to-people visit arranged by the National Geographic Society. Because I am uncertain about the state of internet access in Cuba, I do not know if I will be able to post more blog entries until after I return to the U.S. on December 19.

Final negotiations are underway in Durban at the conference of the parties (COP-17) to the UN Framework Convention on Climate Change. On December 8 a courageous 21-year old college student from Middlebury College, Abigail Borah, interrupted a speech by Todd Stern, the chief U.S. climate negotiator, by saying: “I am speaking on behalf of the United States of America because my negotiators cannot. The obstructionist Congress has shackled justice and delayed action for far too long. I am scared for my future. 2020 is too long to wait. We need an urgent path to a fair, ambitious and legally binding treaty.” Ms. Borah’s interruption was greeted with applause even though she was ejected from the meeting hall. Stern later called a press conference where he described Ms. Borah as a “very sincere and passionate young woman.” He then suggested that the U.S. might indeed go along with an EU proposal to launch a process designed to reach a new climate agreement in 2015, which would become effective in 2020, rather than waiting until 2020 to negotiate such a treaty. The Global Carbon Project reported on December 4 that global emissions of carbon dioxide rose by a half billion tons in 2010, a 5.9% increase that likely was the largest jump in any year since the dawn of the Industrial Revolution.

This was a tough week for breathing in Beijing as a brown haze encircled the city and levels of particulates skyrocketed to extremely hazardous levels. The pollution was so bad that 700 outgoing flights were canceled over a two-day period and roads were shut down due to poor visibility. Environmental activists pushed the Chinese government to be more forthcoming in releasing air pollution data to the public. On December 6 the China Daily reported that air pollution is causing severe health problems, noting that lung cancer in Beijing has increased by 60% in the last decade even though the rate of smoking was unchanged. Edward Wong, Outrage Grows Over Air Pollution and China’s Response, N.Y. Times, Dec. 7, 2011, at A15.

On December 9 the New York Times published a shocking expose showing that major U.S. battery-manufacturing companies have shipped huge quantities of used batteries to recyclers in Mexico where the lead is recycled with virtually no environmental controls. Last year U.S.-based Johnson Controls shipped 160,000 metric tons of batteries to Mexican recyclers. The percentage of used batteries in the U.S. that are exported to Mexico has jumped from 6% in 2007 to 20% in 2010. The exports are harming domestic battery recyclers who must comply with much tougher environmental regulations. Mexican children living near the recycling operations are suspected of having lead poisoning, but virtually no funds are available to test them. Elisabeth Rosenthal, Used Batteries from U.S. Expose Mexicans to Risk, N.Y. Times, Dec. 9, 2011, at A1.

A plan to build the $3.5 billion Xayaburi dam on the Mekong River in Laos was deferred this week by a vote of the Mekong River Commission, whose members include Cambodia, Laos, Thailand, and Vietnam. This is the second time this year that the project has been deferred pending further study of its environmental impacts. James Hookway, Environmental Concerns Delay Mekong Dam Project, Wall St. J., Dec. 9, 2011, at A11.

After three years of study, the U.S. Environmental Protection Agency (EPA) released a draft report on December 8 that links hydraulic fracturing for natural gas in Wyoming’s Pavillion field to contamination of drinking water wells in the vicinity. Companies using fracking to extract natural gas have long insisted that there is no proof that it has contaminated drinking water supplies. EPA discovered levels of various chemicals associated with fracking well above standards set by the federal Safe Drinking Water Act (SDWA) in groundwater monitoring wells near fracking sites. The Kirk Johnson, EPA Links Tainted Water in Wyoming to Hydraulic Fracturing for Natural Gas, N.Y. Times, Dec. 9, 2011, at A19. However, due to an amendment to energy legislation promoted by Vice President Dick Cheney in 2005, fracking has been exempted from the SDWA. The EPA study, which now will be subject to public comment and peer review, was undertaken in response to complaints from local residents about the smell and taste of their drinking water. The wells drilled in the Pavillion field were shallower than those used in fracking operations in other parts of the country.

This week the IUCN Academy of Environmental Law released a “Call for Paper/Presentation Abstracts” for the 10th Colloquium that will be held at the University of Maryland Francis King Carey School of Law from July 1-5, 2012. The Colloquium organizers welcome abstracts for papers and/or presentations on a broad array of topics. These include: approaches for improving global environmental law and governance, how to overcome political resistance to sustainable development policies, new strategies for promoting environmental justice and using law to advance sustainability, where are we after Rio+20 and where we should be going from here. Papers may focus on strategies for addressing specific environmental problems, new developments in national and regional environmental law, and the interaction of international and domestic law and policy. A copy of the call for papers is available online at: http://digitalcommons.law.umaryland.edu/gelc/ A “Call for Films” for the same Colloquium, which will host a festival of short environmental films, will be issued soon.

Gloom in Durban, Bali Montreal Protocol COP, Fracking Contracts, Supreme Court RCRA Case, Lovins Workshop (by Bob Percival)

After a week of meetings in Durban, South Africa, the Conference of the Parties to the UN Framework Convention on Climate Change (COP-17) remains sharply divided on most major issues, including how to fund the Green Climate Fund to provide financial assistance to developing countries and whether a global post-Kyoto treaty should be adopted. Some critics have begun to refer to the COP as the “Conference of Polluters”. There were a few positive developments with the Chinese delegation for the first time indicating that it eventually might support global limits on greenhouse gas emissions in a treaty to be negotiated by 2020. The International Chamber for Shipping, representing 80% of the world’s merchant marine, joined Oxfam and WWF to support a carbon tax on emissions from ships. COP-17 is scheduled to conclude on Friday and, as usually happens, it is likely that the most significant developments will occur in the waning hours of the meetings.

In a belated bit of news, the Bali meeting of the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer on November 21-25 failed to adopt a proposal backed by the U.S. for a 30-year phaseout of hydrofluorocarbons that are potent greenhouse gases. India, China and Brazil led opposition to the proposal, which had been supported by a significant majority of the participating parties. It is now widely appreciated that the Montreal Protocol, while directed to protecting the ozone layer, also has reduced greenhouse gas emissions by even more than the reductions required by the Kyoto Protocol.

Last week the New York Times ran a major story reporting that many owners of properties that have been leased for hydraulic fracturing (“fracking”) to extract natural gas have misunderstood the contractual terms of the leases. Ian Urbina & Jo Craven McGinty, Learning Too Late of Perils in Gas Well Leases, N.Y. Times, Dec. 2, 2011, at A1. The companies generally do not describe the environmental risks to the property owners and most of the contracts do not require the companies to provide compensation for environmental damage. At least two-thirds of the leases allow the companies unilaterally to extend the lease term. This article could provide terrific material for law students to study in a first-year Contracts course.

The U.S.-based battery maker Johnson Controls reported last week that its Shanghai factory has been cleared to resume production after a temporary shutdown to investigate lead pollution near the plant. James T. Areddy, Battery Maker Is Cleared in Shanghai Lead Probe, Wall St. J., Dec. 1, 2011, at B4. As reported in this blog on September 18, 2011, the plant had been shut down by Chinese authorities after the discovery of severe lead poisoning in children living nearby.

On November 28 the U.S. Supreme Court announced that it had agreed to review a case challenging the amount of a fine imposed on a corporation for illegally storing hazardous mercury waste in violation of the Resource Conservation and Recovery Act (RCRA). The Court’s motivation for taking the case over the opposition of the federal government may be a desire to clarify the limits of its 2005 opinion in Apprendi v. United States holding that enhanced sentences could not be imposed based on certain factual findings not proven before a jury. In the case before the Court -- Southern Union Co. v. United States, No. 11-94 -- the company claims that it should have been fined only $50,000 for a single incident of illegally storing waste, rather than the $18 million penalty imposed based on daily penalties for more than 2 years of illegal storage.

I have spent the last few days in one of the most beautiful parts of the world at a wonderful workshop on “The Tao of Global and Personal Ecology” with Amory Lovins and Chungliang Huang. The workshop was held at California’s Esalen Institute, which is located atop cliffs overlooking the Pacific Ocean near Big Sur. Lovins discussed his Rocky Mountain Institute’s new book “Reinventing Fire: Bold Business Solutions for the New Energy Era” which outlines a program for greening the four energy-intensive sectors of the economy: transportation, buildings, industry and electricity. See http://rmi.org/ReinventingFire. I was impressed with Lovins’s relentless optimism (“I don’t do problems, I only do solutions”) and his emphasis that the transition to a green economy could be accomplished not by emphasizing government intervention, but rather by convincing business leaders that it would be profitable. Lovins has been advising business leaders and the U.S. military on how to transform their use of energy. He and Chungliang Huang have been doing work in China where Lovins’s book “Natural Capitalism” was embraced by the Chinese leadership in part because of the many positive ways the title’s Chinese translation resonated with them. By contrast, I have long been told that the title of Al Gore’s “An Inconvenient Truth” did not translate well into Chinese, making it far less popular there.

COP-17 OPENS IN DURBAN, CLIMATE FUND DISPUTE, CARBON PRICES AT RECORD LOWS, BRAZIL SUSPENDS CHEVRON DRILLING (BY BOB PERCIVAL)

On Monday November 28 the 17th Conference of the Parties (COP-17) to the UN Framework Convention on Climate Change also meeting as the 7th Meeting of the Parties to the Kyoto Protocol convenes in Durban, South Africa. Even though developed countries’s Kyoto Protocol commitments to reduce emissions of greenhouse gases (GHGs) during the 2008-2012 period will expire next year, there seems to be little prospect of a new global agreement to succeed Kyoto. In an apparent effort to undermine the conference, thousands of more stolen emails from the Climate Research Unit of the University of East Anglia again have been posted anonymously on the internet, this time on a Russian server. They are from the same time period as the emails posted two years ago and they do not appear to contain any significant new revelations. Investigations spawned by the first incident led to the climate scientists whose emails had been purloined being cleared of any wrongdoing, but they gave some politicians a convenient excuse to retract their support for policies to control GHG emissions.

In pre-COP negotiations, the U.S. reportedly refused to agree to a new blueprint for the Green Climate Fund to provide financial assistance to developing countries for the transition to low-carbon economies. The fund, created in 2009 at COP-15 in Copenhagen, was supposed to provide $100 billion in annual assistance by the year 2020. Pilita Clark & Javier Blas, US Blocks Key Fund in Climate Agreement, Financial Times, Nov. 25, 2011, at 1. This will be a major issue to be subject to further negotiations at the Durban COP.

Last week the prices of carbon allowances fell to record lows. The price of UN-backed certificates of emission reductions (CERs) fell to €5.90 (approximately $7.85). This represents a decline in price of more than 50 percent since last June. On November 24 the price of EU cap-and-trade allowances hit a record low of €7.80 (approximately $10.35) per ton, a 15 percent decline in one week. Javier Blas, Carbon Prices Tumble to Record Low, Financial Times, Nov. 25, 2011, at 22. The decline may be due in part to fears of a European economic collapse if the current financial problems of countries in the Eurozone are not adequately resolved.

Last week the government of Brazil imposed a moratorium on offshore drilling by Chevron while it investigates the causes of a 3,000-barrel oil spill that occurred earlier this month at Chevron’s Frade project. On November 21 IBAMA, the Instituto Brasileiro do Meio Ambiente E Dos Recursos Naturais Renováveis (Brazilian Institute of Environment and Renewable Natural Resources), the Brazilian government agency responsible for regulating Chevron’s activities, fined the company ₨50 million (approximately $28 million), and it indicated that additional fines of up to ₨40 million could be imposed. The chief executive of Chevron’s Brazilian unit, George Buck, apologized for the spill during a hearing before Brazil’s Congress on November 23.

O'Malley Attacks Clinic, Apple Audits China Suppliers, Chevron Brazil Spill, IPCC on Severe Weather, Renewable Energy, ABA Panel (by Bob Percival)

On November 16 Maryland Governor Martin O’Malley released a shocking letter denouncing a lawsuit filed last year by Maryland’s Environmental Law Clinic to stop poultry waste pollution of the Chesapeake Bay. The Governor’s letter claims that the lawsuit perpetuates an “ongoing injustice.” Despite the fact that the Clinic has won every motion in the case, he characterizes the lawsuit as of “questionable merit” and suggests that the clinic actually should be representing the defendants. A copy of the Governor’s letter is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). The governor’s action revives an attack on the clinic that was soundly beaten back in spring 2010 when the national legal community denounced an effort by Eastern shore legislators to cut the relatively minimal funding the law school receives from the state in an effort to force the clinic to drop its ground-breaking lawsuit against corporate agribusiness for polluting the Bay. On November 17 Maryland law dean Phoebe Haddon responded to the Governor with a letter defending the law clinic. She noted that there were “good grounds for the lawsuit, which seeks to protect the Chesapeake Bay for all Marylanders,” and she cited “inaccuracies” in the governor’s letter. A copy of Dean Haddon’s response is available on a link at my parallel blog at: www. globalenvironmentallaw.com (see Nov. 20th post). In an editorial the Baltimore Sun denounced the governor’s letter as “odious” and “shocking,” an attempt “to bully” our environmental law clinic, and “to interfere with ongoing civil litigation” by taking “the side of polluters against those who are simply trying to enforce federal law.” A link to the Baltimore Sun editorial criticizing the Governor’s letter is HERE.

Last week it was revealed that Apple Corporation has hired an outside firm to audit environmental compliance by companies in its supply chain in China. On November 15 Apple representatives met in Beijing with a coalition of environmental groups who released reports in January and August 2011 criticizing environmental compliance by Apple’s Chinese suppliers. See blog post of September 5, 2011. Ma Jun, director of the Institute of Public and Environmental Affairs, which had released the previous reports, described Apple’s actions as “progress,” but “just the beginning.” Kathrin Hills & Joseph Menn, Apple Launches Audit of Chinese Suppliers, Financial Times, Nov. 17, 2011.

On November 15 the Chevron Corporation announced that it had contained the flow of oil leaking from the ocean floor where it had drilled a deep water appraisal well at its Frade project off the coast of Brazil 230 miles northeast of Rio de Janeiro. Brazil’s federal police have opened an investigation of Chevron in connection with the spill. Brazilian authorities are expressing increasing annoyance at what they characterize as Chevron’s lack of transparency concerning the oil spill. They have threatened Chevron executives with criminal prosecution if it is determined that they intentionally misled Brazilian authorities and they are insisting that Chevron pay compensation for natural resource damages. Simon Romero, Brazilian Officials Warn Chevron Over Offshore Spill, N.Y. Times, Nov. 19, 2011, at A8.

On November 18 the Intergovernmental Panel on Climate Change (IPCC) reported that some severe weather events already can be attributed to ongoing climate change. Ongoing weather anomalies include the worst drought in the Horn of Africa in 60 years, heavy snow in the United States, and severe flooding in Thailand. However, the IPCC agreed that it was premature to attribute more intense hurricanes to climate change. It predicted that extreme weather events will occur more frequently and with greater intensity even as human vulnerability to them will grow in the future. Justin Gillis, Panel Finds Climate Change Behind Some Extreme Weather, N.Y. Times, Nov. 19, 2011.

Last week a spate of investments were announced in large renewable energy projects around the world. On November 17 the World Bank announced that it would help fund a massive solar energy project to be built in Morroco’s desert. The Ouarzazate solar complex, which will be built southeast of Marrakesh, will have a capacity of 500 megawatts, enough to power 90,000 homes. Morocco plans to build five large solar energy complexes by 2020 with a total capacity of 2,000MW. Pilita Clark, Morocco Wins Green Light for Solar Plant, Financial Times, Nov. 18, 2011, at 6. General Electric agreed last week to help build a $100 million wind energy farm in Mongolia. The project is expected to meet 5% of Mongolia’s energy needs when it is completed in the second half of 2012. Kathrin Hills, GE Signs $100 Million Mongolia Wind Deal, Financial Times, Nov. 18, 2011, at 17. Fourteen foreign energy companies have asked the Spanish government for more than 100 million Euros in compensation for Spanish government’s March 2011 reductions in subsidies for solar energy. The compensation is being sought under the 1998 Energy Charter Treaty. Miles Johnson, Investors Seek Compensation for Cuts to Spain’s Solar Subsidy, Nov. 18, 2011, at 17.

This has been a busy week for me. On Tuesday I presented a paper “On Coal, Climate and Carp: Reconsidering the Common Law of Interstate Nuisance” at a Faculty Research Workshop at Georgetown. The paper focuses on three recent decisions involving efforts by states to use federal or state common law to control transboundary pollution, including North Carolina’s effort to control pollution from TVA’s coal-fired power plants, the American Electric Power climate change litigation, and efforts by Great Lake states to stop the spread of invasive species. The paper argues that the common law remains an important backstop to prod regulatory action to redress environmental problems that are newly emerging or long-neglected by regulators.

On November 17 I spoke on a panel on presidential review of rulemaking at the fall meeting of the American Bar Association’s Section on Administrative Law and Regulatory Pracrice. On the panel with me were former Bush White House Counsel and former Ambassador to the EU (recess appoinment) C. Boyden Gray, current OMB general counsel Boris Bershteyn, Brian Callanan from the office of Senator Rob Portman, and Alan Raul from Sidley & Austin. Boyden Gray took issue with my opening statement when I noted that if President Reagan had had directive authority over agencies, EPA would have been forced to abolish all limits on lead in gasoline. The White House had forced EPA to propose such a disastrous policy, but they ultimately backed down in the face of environmental opposition. Bershteyn had the best line of the day when he said that he was glad that OMB was being criticized for events that occurred during the Reagan administration. However, it was quite telling that Callanan argued that by vetoing the ozone rule, President Obama had conceded that a super cost-benefit mandate, which is not in the current Clean Air Act, should be adopted by enactment of Senator Portman’s proposed Regulatory Accountability Act (RAA). I argued that the RAA would paralyze efforts to protect public health and the environment by codifying the Toxic Substance Control Act’s “least cost” mandate that prevented the U.S. from banning asbestos, a substance that has now been banned by virtually all other developed countries.

On November 18 I attended a conference on regulatory takings at Georgetown cosponsored by Vermont Law School and the Georgetown University Law Center. Tom Merrill gave a great presentation on the way courts are interpreting the Supreme Court’s 1978 Penn Central decision. Gregory Stein from the University of Tennessee explained why the Supreme Court’s Palazzolo decision has not had much impact on takings decisions. Georgetown Dean Michael Treanor, whose student note in the Yale Law Journal has become a classic on the history of the takings clause, gave the keynote address explaining why the original understanding of the clause only required compensation for physical takings of property.

On Friday night November 18 Maryland’s Environmental Law Program held its 20th annual program winetasting party. Nearly 200 students, faculty, and alums attended the event which featured a vertical tasting of the wines of Chateau Pichon Lalande, some celebrated California cabernets from the 1970s, and the certifiably perfect 1982 Chateau Mouton Rothschild. This year’s “mystery wine,” tasted blind, was a pinotage from South Africa. None of the participants in the contest identified it correctly, but Delegate Jon Cardin did get the vintage (2009) correct. The event confirmed once again that wine truly is “nature’s thanks for preserving the earth.”

Keystone XL Decision Delayed, China Air Pollution Monitoring, EU to Pass U.S. as Oil Importer, Australian Carbon Tax (by Bob Percival)

On November 10 the Obama administration announced that it would delay a decision on whether or not to approve TransCanada’s Keystone XL pipeline project to transport heavy tar sands oil to the U.S. The delay will give the administration time to consider routes that skirt around the important Ogalala aquifer in Nebraska. It also should postpone the decision until after the 2012 presidential election, extricating President Obama from a “no-win” situation. Christi Parsons & Paul Richter, Decision on Pipeline Put Off Until 2013, Los Angeles Times, Nov. 11, 2011, at A10.

The latest chapter in the long-running controversy over the accuracy of air pollution monitoring in China occurred last week when Chinese authorities announced that 40 lucky people per week would be allowed to tour Beijing’s air quality monitoring center. Air pollution in Beijing has been particularly nasty this fall and the U.S. Embassy’s online air quality monitoring, made available online through an iPhone app and Twitter, reportedly has been embarrassing Chinese authorities. Last year a Wikileaks cable revealed that the Chinese government had privately asked the U.S. Embassy to stop posting its monitoring data online. Pan Shiyi, a Chinese real estate developer with 7 million followers of his blog, asked the Chinese public to vote on whether more stringent air pollution standards should be adopted. More than 30,000 of the 40,000 respondents voted “Yes”. Andrew Jacobs, Beijing Acts to Calm Anger Over Reporting of Air Pollution, N.Y. Times, Nov. 9, 2011.

Last week the International Energy Agency (IEA) released its annual report. It reported that global carbon dioxide emissions grew in 2010 at the “almost unprecedented” rate of 5.3% to 30.4 billion metric tons. James Herron, Energy Agency Warns Government to Take Action Against Global Warming, Wall St. J., Nov. 9, 2011. The IEA also forecast that in 2015 the EU will surpass the U.S. as the world’s largest importer of oil. This somewhat surprising prediction is a result of the dramatic increase in U.S. fuel economy standards and increased U.S. natural gas and oil production. The report also forecast that by 2020 China would overtake the EU as the world’s largest importer of oil. Global demand for oil is expected to grow from last year’s 87 million barrels a day to 99 million barrels per day by 2035. The IEA concluded that every additional $1 invested in fossil fuel production will cause $4.30 in environmental damage after 2020. Julia Werdigier, Europe’s Oil Imports Poised to Pass Level of U.S., N.Y. Times, Nov. 9, 2011.

On November 7 the Australian Parliament gave final approval to a carbon tax. Beginning in July 2012 the top 500 emitters of greenhouse gases will be required to pay a tax of approximately $24 for each ton of carbon they emit. Beginning in July 2015 an emissions trading program will be launched. The decision represents a huge victory for Australian Prime Minister Julia Gillard as well as a dramatic turnabout for a country that until late 2008 had been the only developed country other than the U.S. that had failed to ratify the Kyoto Protocol.

On November 9 the U.S. Department of Commerce opened an investigation of charges that China is unfairly dumping below cost solar panels on the market. A new trade group representing buyers and installers of solar panels was established this week to press the argument that any trade sanctions imposed on Chinese solar manufacturers will cost U.S. jobs. Due largely to increased Chinese exports, prices of solar panels have plunged from $3.30 per watt in 2008 to only $1 to $1.20 per watt today.

On Friday Nov. 11 I spoke at a conference on “CERCLA and the Future of Liability-Based Environmental Regulation” at Southwestern University Law School in Los Angeles. Professor Percival compared CERCLA with other countries’ programs for remediation of environmental contamination. The conference was terrific. It featured lots of veterans from the early history of CERCLA and the war stories we shared were absolutely fascinating. Southwestern has what Dean Bryant Garth accurately described as the best building of any law school - a 1929 art Deco former Bullocks department store on Wilshire Boulevard. I joined several of the speakers on a fabulous tour of the building that emphasized how the school has gone to great links to preserve its historic builgin. I spent Saturday in a cold and rainy Vancouver, Canada, before returning to D.C. on Sunday.

China Bans Incandescents, EU Airline Carbon Trading Attacked, Oral Argument Set in Challenges to EPA Climate Regulations (by Bob Percival)

Last week China announced that it will ban the import and sale of 100-watt and higher incandescent light bulbs beginning on October 1, 2012. The ban will be extended to 60-watt bulbs on October 1, 2014 and to 15-watt and higher bulbs on October 1, 2016. With this move China joins the EU and the United States in phasing out these notoriously inefficient light bulbs that waste most of their energy giving off heat rather than light.

The U.S. Food and Drug Administration (FDA) has asked Chinese authorities for help in implementing the Food Safety Modernization Act. The law, which was enacted in January 2011, requires U.S. importers of food to verify through their suppliers the safety of their imports. The FDA is seeking greater information sharing with China and other countries that export food to the U.S. The U.S. actually exports more agricultural products to China than China exports to the U.S., but enforcement of Chinese food safety laws has been notoriously weak, as Li Tairan, director of food safety at China’s Ministry of Health confirmed at a food safety conference on November 2. Laurie Burkitt, FDA Seeks Beijing’s Help Over Food Safety, Wall St. J., Nov. 4, 2011, at A8.

Last week the governing council of the UN’s International Civil Aviation Organization (ICAO) urged the European Union to drop its plan to include airlines flying to or from EU countries in its cap-and-trade program for carbon emissions. A total of 26 countries, including the U.S., China, Russia, and India had lobbied for the declaration, which argues that the ICAO is the best forum for resolving such issues. EU Climate Commissioner Connie Hedegaard criticized these countries for focusing solely on what not to do to reduce GHG emissions from the airline sector. The EU regulations will go into effect on January 1, 2013. Meanwhile the U.S. House of Representatives’ vote to prohibit U.S. airlines from participating in the EU’s cap-and-trade program has received a lot of attention, but for now it stands virtually no chance of being adopted by the full Congress. A report issued by Bloomberg News Energy Finance estimates that the cost to the airlines of participating in the EU program would be less than one-quarter of one percent of revenue from the routes subject to it in 2012 and about one-half of one percent in 2020. Pilita Clark, Nations Step Up Fight Over Air Carbon Permits, Financial Times, Oct. 30, 2011.

On Nov. 2 the U.S. Court of Appeals for the D.C. Circuit announced that it will hear two days of oral argument on February 28 & 29, 2012 on the consolidated legal challenges to EPA’s regulations governing greenhouse gas (GHG) emissions. The panel hearing the case will be Judges Sentelle, Rogers, and Tatel. Judge Sentelle is a severe critic of environmental regulation, but Judges Rogers and Tatel are much more supportive. On November 3, I participated in a dinner of “Distinguished Environmental Advocates” at Bistro Bis in Washington, D.C. The dinner was sponsored by ABA’s Section on Environment, Energy & Resources and the Environmental Law Institute. George Frampton addressed the group and argued that the Fukushima Daiichi accident would not have a gret impact on the demand for nuclear power because the Chinese and Russian governments still are committed to building new nuclear power plants. I expressed disagreement with this view, noting that public opinion in Japan, Germany and China is now distinctly anti-nuclear due to the accident. At the dinner I asked several of the major figures in the environmental bar for their predictions concerning the fate of the legal challenges to EPA’s regulation of GHG emissions. Virtually everyone agreed that EPA’s endangerment finding would be upheld aby the D.C> Circuit. Many thought EPA would beat back all of the legal challenges to its regulation of GHG emissions. Surprinsgly, this group even included some prominent industry lawyers. However, a few others, including a prominent supporter of EPA, believed that EPA’s tailoring rule would be struck down.

I visited Goucher College on November 1 to give a lecture on the Law of the Sea to an environmental studies class. It is really heartening to see how many colleges and universities are expanding their environmental offerings at the undergraduate level.

9th Circuit Rejects Kiobel, Setback for Cape Wind, Nebraska Special Session on Pipeline, Brazil Dam Protest, "Hot Spots" in Japan (by Bob Percival)

Last week seven of eleven judges from the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, joined the Seventh and D.C. Circuits in rejecting the Second Circuit’s Kiobel decision holding that corporations cannot be held liable for violating the law of nations, the predicate for liability under the Alien Tort Statute. A copy of the court’s decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf As discussed in the October 23, 2011 blog post, the U.S. Supreme Court has agreed to review the Kiobel decision and likely will decide the case by the end of June 2012. The Ninth Circuit’s decision in Sarei v. Rio Tinto, revives a lawsuit filed by citizens of Papua, New Guinea, alleging that the Rio Tinto mining corporation purposefully aided and abtetted the New Guinean government in committing genocide and crimes against humanity. The Ninth Circuit easily could have deferred issuing a decision until after the U.S. Supreme Court decides Kiobel, but the judges likely wanted to make the Court aware of their views before it decides Kiobel.

On October 28 the U.S. Court of Appeals for the D.C. Circuit ruled that the Federal Aviation Administration (FAA) had failed to adequately consider the impact on aircraft safety of the Cape Wind project, the first commercial-size offshore wind project in the U.S. Plaintiffs in the case included the Alliance to Protect Nantucket Sound and the City of Barnstable, Massachusetts. The decision is expected to delay the start of construction work on the project.

Republican Governor Dave Heineman has called Nebraska’s legislature back into special session, beginning on Tuesday, to consider legislation to block or to alter the route of the Keystone XL pipeline. The pipeline is designed to carry oil from Canada’s tar sands fields to the United States. Heineman has objected to the project out of fears that it may endangered the quality of groundwater in Nebraska’s Ogallala Aquifer.

Japanese authorities last week confirmed that they had discovered far-flung “hot spots” of radioactive fallout from the accident at the Fukushima Daiichi nuclear power plant. The “hot spots” were found in Kashiwa, 125 miles from the damaged reactor and just 18 miles northeast of Tokyo. Officials attribute the contamination to cesium-laced rain that fell in the area shortly after the accident. Yuka Hayashi, Tokyo Cite Rain for “Hot Spot,” Wall St. Journal, Oct. 25, 2011, at A15. Scientists now estimate that the amount of cesium-137 released in the Japanese accident was 42% of the amount released in Chernobyl in 1986 and that 79% of it drifted over the Pacific Ocean while 19% ended up on Japanese land and 2% in other countries. A. Stohl, et al., Xenon-133 and Caesium-137 Releases into the Atmosphere from the Fukushima Dai-ichi Nuclear Power Plant: Determination of the Source Term, Atmospheric Dispersion, and Deposition, 11 Atmos. Chem. Phy. Discussion 28319 (2011).

Last week presidential candidate Mitt Romney appeared to backtrack in his views on climate change. “My view is that we don’t know what’s causing climate change on this planet,” Romney said, contradicting his statement earlier this year that humans contribute to climate change. Romney stated that it was not wise to spend “trillions and trillions of dollars to try to reduce CO2 emissions,” despite his support as governor of Massachusetts for a nine-state cap-and-trade agreement. Jonathan Wisman, Romney Rivals See Flip-Flop, Wall St. Journal, Oct. 29-30, 2011, at A4.