During the second U.S. presidential debate between President Obama and former governor Mitt Romney on October 16 and the just-completed third debate on October 22, there was absolutely no discussion of climate change. Candy Crowley of CNN, moderator of the second debate, which employed a town hall format, stated after the debate that she had a questioner who was planning to ask a climate change question (“for all of you climate change people”), but she simply ran out of time. In the second debate the candidates did discuss oil and gas production with each accusing the other of being anti-coal, but there was no expression of concern for the environment. This contrasts with the 2008 presidential debates where both then-Senator Obama and Senator McCain expressed concern over climate change, while disagreeing over how much emphasis to put on increased fossil fuel production.
TransCanada’s Keystone pipeline that carries nearly 600,000 barrels of crude oil each day from Canada to the U.S. Midwest, was shut down on Wednesday October 17 after safety tests indicated potential problems. Since the 2,100-mile pipeline was opened in 2010 there have been more than a dozen minor leaks of oil from it. Ben Lefebvre & Chip Cummings, Pipeline Company Idles Keystone Temporarily, Wall St. Journal, Oct. 19, 2012, at B6. Environmentalists opposing the plan to construct the Keystone XL pipeline argue than it will be riskier because it will be carrying heavier, more acidic oil that will corrode pipes faster. The pipeline was restarted on the afternoon of Monday October 22 after some sections were excavated and inspected.
On Wednesday October 17, Rebecca Fenneman, general counsel of the Federal Maritime Commission (FMC), was a guest speaker in my Administrative Law class. Ms. Fenneman is a 1996 graduate of the University of Maryland School of Law. She joined a group of students for lunch prior to class to discuss her career path and the work of the FMC, which regulates maritime shipping into U.S. ports. Due to the importance of global maritime trade, the FMC is particularly active in interacting with government officials in other countries, including China.
On Thursday October 18 I had lunch with Justice Zac Yacoob of the Constitutional Court of South Africa. Justice Yacoob, who played a major role in South Africa’s transition to constitutional rule, was appointed to the court by Nelson Mandela in 1998. He is currently visiting Maryland as a distinguished scholar. Joining me at lunch was visiting Professor Zhao Huiyu of Shanghai Jiaotong University who indicated that Chinese legal scholars are particularly interested in South Africa as a model for how a transition to democracy can be affected. Justice Yacoob plans to visit my Environmental Law class on Wednesday October 24 when we discuss the concept of “judicial takings” and the U.S. Supreme Court’s Stop the Beach decision.
On Friday October 19 I was inducted as a fellow of the American College of Environmental Lawyers (ACOEL). I then attended ACOEL’s annual meeting and introduced myself to the existing members of the organization, most of whom are practitioners of environmental law. There was considerable interest in harnessing some of the incredible talent in the organization for pro bono public service projects, including possible projects to assist environmental groups in China and other countries. I greatly enjoyed getting to network with old and new friends and to discuss current cutting edge issues in environmental law, including the debate over how hydraulic fracturing should be regulated.
Monday, October 22, 2012
Monday, October 15, 2012
Perdue Trial Opens, Oil Industry Sues Over Disclosure Regs, Supreme Court Rejects Chevron Ecuador Challenge, Macalester Visit (by Bob Percival)
On Tuesday October 9 I attended the opening of the long-awaited trial of the Waterkeepers’ lawsuit against the poultry industry (Perdue Incorporated) for polluting the Chesapeake Bay with chicken waste. The Waterkeepers are represented by the University of Maryland’s Environmental Law Clinic and the lawsuit has spawned outrageous attacks on the clinic by politicians close to the poultry industry, including Maryland’s Governor Matin O’Malley. Clinic Director Professor Jane Barrett gave a spectacular opening argument that explained the importance of the lawsuit and responded to the defendants’ false assertions that the suit seeks to destroy family farmers. It is anticipated that the trial, which is being held in federal district court in Baltimore, will take several weeks.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.
Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.
The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.
Sunday, October 7, 2012
EU Nuclear Safety Report, Arkansas Takings Argument, Asian Carp Delay & CDM Update (by Bob Percival)
Last week Gunther Oettinger, European Commissioner for Energy, announced that EU countries may need to spend as much as 25 billion Euros ($32.3 billion) to increase the safety of their nuclear power plants. The announcement was based on the results of a report on the safety of nuclear power plants in Europe that had been commissioned by the EU in the wake of Japan’s Fukushima Daiichi disaster. The report concluded that safety standards in the fourteen EU countries that use nuclear power are high, but that they upgrades need to be made to ensure that nuclear power plants can survive extreme natural events. Allesandro Torello, Billions Needed to Improve Safety on Nuclear Plants, Wall St. Journal, Oct. 5, 2012, at A8.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
The U.S. Supreme Court heard oral argument on Wednesday October 3 in Arkansas Game & Fish Commission v. United States. The case involves the question whether the federal government can be held liable for damage to state-owned land caused by releases of water from a federally-operated dam. The releases, which occurred between 1993 and 2000, caused flooding on state-owned wilderness downstream from the dam, killing thousands of trees. The U.S. Court of Claims awarded the state of Arkansas $5.8 million for a taking of state property, but the Federal Circuit reversed. In the Supreme Court the federal government argues that temporary flooding can never be a taking because property owners assume the risk of periodic flooding when their property is located in a floodplain. Arkansas argues that the state should be able to recover for a temporary taking because the releases were intentional, the flooding foreseeable and not the result of natural forces. At the argument many of the Justices seemed sympathetic to the state’s position, though some noted that the flood control benefits of the dam may offset some of the damages.
On Friday October 5, Representative Dave Camp (R-Mich) announced that the U.S. Army Corps of Engineers will miss the January 2014 deadline for developing a plan to prevent invasive Asian Carps from reaching the Great Lakes from the Mississippi River. The Corps initially had said that it would complete such a plan by 2015, but in July 2012 President Obama signed legislation setting the January 2014 deadline. Congressman Camp vowed to “hold the Corps accountable” for missing the new deadline.
The price of certified emission reduction (CER) credits under the United Nations’ Clean Development Mechanism (CDM) plunged to as low as $2.16 per ton last week. The UN issued the one-billionth CER credit last month. Each credit represents one ton of carbon emissions avoided by projects undertaken through the Clean Development Mechanism (CDM) established pursuant to the 1997 Kyoto {Protocol. More than 4,500 CDM projects have now been pursued in 75 countries. Until recently the market price of CERs has closely tracked the price of EU allowances (EUAs) traded under the European Union’s cap-and-trade program. The EU has allowed companies also to use CERs to meet their emissions control obligations. But as the the number of allowances in the EU program approaches a cap of 1.4 billion tons, CER prices have collapsed. Once the number of offsets reaches 1.4 billion, only 300 million more tons of allowances can be used until the end of 2020. Pilita Clark, UN-led Global Carbon Market Close to Collapse, Financial Times, Oct. 3, 2012, at 25.
Tuesday, October 2, 2012
Kiobel Reargument, Total Opposes Arctic Drilling as Too RIsky (by Bob Percival)
On Monday October 1 I went to the Supreme Court for the reargument in Kiobel v. Royal Dutch Petroleum Co. The case involves the question whether foreign plaintiffs can sue corporations under the Alien Tort Statute (ATS) for violations of the “law of nations.” Plaintiffs, the survivors of environmental activists in Nigeria who were summarily executed by Nigeria’s military, argue that Shell Oil (Royal Dutch Petroleum) aided and abetted in the executions to silence critics of oil pollution in Nigeria. Plaintiffs are asking the Court to reverse a decision by the U.S. Court of Appeals for the Second Circuit holding that only nations and individuals, but not corporations, can be held liable in tort for violations of international law.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Kiobel was first argued in the Supreme Court on February 28, 2012. A week later the Court announced that it would hear reargument directed to the question whether the ATS "allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." This suggested that the Court might not embrace the Second Circuit's notion of blanket corporate immunity for human rights abuses, a proposition rejected by several other U.S. Courts of Appeal. But it also indicated that the Court could hold that a foreign corporation cannot be sued in the U.S. courts under the ATS for violations of the law of nations committed in another country. However, at the reargument it was anything but clear that this is what the Court will do. Several Justices cited the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain which narrowed the coverage of the ATS, but acknowledged that it could be applied to extraterritorial conduct by foreigners residing in the U.S., including torture and murder in Paraguay, which generated the Second Circuit’s Filartiga decision that gave impetus to modern ATS litigation. While it is difficult to predict how the Court ultimately will rule, the reargument definitely was a good idea. A Court that seemed poised seven months ago quickly to dismiss ATS litigation against corporations, exhibited a deeper appreciation of the ATS and its importance to international human rights than when the case was first argued last February (see blog post of March 5, 2012).
Kathleen Sullivan, representing Shell, did a masterful job at February’s oral argument, but she was constantly on the defensive in yesterday’s reargument. Faced with tough questions from across the ideological spectrum of Justices, she seemed to shift positions to advocating whatever new interpretation of the ATS might get the case against her client dismissed. There was little discussion of exempting all corporations from ATS liability and the historical record provided scant support for the notion that violations of the law of nations that occur abroad cannot give rise to ATS liability. Solicitor General Donald B. Vermilli, Jr. was given ten minutes of argument in support of Shell, but there seemed to be little sympathy among the Justices for his argument that the case did not have enough of a connection to the U.S. to be heard by U.S. courts. Paul Hoffman, arguing for the plaintiffs, reserved an unusually long eight minutes for rebuttal and he used it effectively. He noted that dismissal of this case would mean that a foreign corporation secretly supplying poison gas to Syria to kill dissidents could not be sued in the U.S. by Syrian victims who flee to the U.S. even if it, like Shell, is doing business in the U.S. The briefs of the Netherlands and the UK supporting Shell that had concerned Justice Kennedy at the February argument were characterized as supporting an exhaustion of alternative forum requirement, rather than a blanket dismissal rule. Hoffman also effectively noted that existing doctrine such as forum non conveniens already provided sufficient protection to foreign corporate defendants.
The greatest concern among the Justices sympathetic to Shell was the notion that other countries might cite the ATS as an excuse to permit suits against U.S. corporations in their courts. But a decision foreclosing ATS suits against foreign corporations for conduct outside the U.S. would probably provide considerable succor to rogue governments without deterring them from taking any illegitimate action against U.S. companies.
Last week Christophe de Margerie, the chief executive of the French oil company Total SA, stated that he believed that oil drilling in the Arctic was simply too risky due to the risks of oil spills and the difficulty of containing them in such a harsh environment. The company’s statement, which was welcomed by environmentalists, made front page headlines in the Financial Times. Guy Chazan, Total Speaks Out Against Arctic Oil, FInancial Times, Sept. 28, 2012. Total has investments in some joint oil and gas projects in the Arctic, but it primarily is emphasized developing natural gas resources, which it believes are less risky to the environment. Total’s statement came shortly after France’s highest court upheld the company’s criminal liability, and increased its civil liability, for an oil spill that occurred on France’s Atlantic coastline in 1999.
Sunday, September 23, 2012
Kivalina Decision, Russell Train's Passing, House "War on Coal" Bill, Brazil Mining Proposal (by Bob Percival)
On Friday September 21 the U.S. Court of Appeals for the Ninth Circuit dismissed a climate change public nuisance suit seeking damages to relocate an Alaskan village disappearing due to sea level rise. In Native Village of Kivalina v. ExxonMobil Corporation the village sued 22 oil , energy and utility companies, alleging that they had contributed to global warming and climate change which was causing the sea level rise. In 2009 federal district judge Saundra v. Armstrong dismissed the case as a non-justiciable political question. The appellate panel affirmed the dismissal, but on the narrower ground that the Clean Air Act had displaced the federal common law of nuisance concerning emissions of greenhouse gases (GHGs), based on the Supreme Court’s June 2011 decision in American Electric Power v. Connecticut (AEP). A copy of the Ninth Circuit’s Kivalina decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2012/09/21/09-17490.pdf. In a concurring opinion District Judge Philip M Pro, sitting on the appellate panel by designation, argued that the plaintiffs also lacked standing to bring their lawsuit because they had failed to make sufficient allegations tying the defendants to their alleged injuries.
The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.
On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.
A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.
On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.
Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.
Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.
After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.
The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.
On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.
A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.
On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.
Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.
Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.
After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.
Sunday, September 16, 2012
Japan to Phase Out Nuclear Power, Hollande Rejects Fracking, India Cuts Fuel Subsidies, China Legal Reforms (by Bob Percival)
Last week Japan joined Germany in announcing that the country will phase out nuclear power. The Japanese government announced on September 14 that all 50 of its nuclear reactors will be shut down by the year 2040, nearly 20 years after the German phaseout is to be complete. The Japanese decision is particularly significant because the country had been the third largest nuclear generator with 30 percent of its electricity coming from nuclear power prior to the Fukushima Daiichi disaster. Prior to the accident, Japan had planned to increase its use of nuclear power to 50 percent of all electricity generation by 2030. Now that the government has announced a phaseout of nuclear power, it is believed that it will be easier to restart existing reactors, which will be allowed to operated until the end of their 40-year operating lives. Jonathan Soble & Javier Blas, Financial Times, Sept. 15/16, 2012, p. 3. Japan’s nuclear phaseout likely will increase demand for natural gas-fired plants and renewable energy sources, though China and the UK are planning significant expansions of nuclear power in their countries and it is not clear that Japan will stop work on nuclear powerplants already under construction. Guy Chazan & Pilita Clark, Financial Times, Sept. 15/16, 2012, p. 12.
France’s ruling party has promised to reduce the country’s reliance on nuclear power from 75 percent to 50 percent by closing 24 nuclear reactors by the year 2025. On September 15 French President Francois Hollande announced that the nuclear powerplant at Fessenheim would be closed. He also announced that he effectively would continue the country’s moratorium on hydraulic fracturing (“fracking”) by rejecting seven applications for shale gas exploration. Hollande cited “the heavy risk to health and the environment” from fracking in rejecting the applications. He also announced the creation of a national agency to protect biodiversity.
On September 13 India announced that it would significantly reduce the $34 billion it spends each year to subsidize the price of fuel. The goverment’s action is expected to raise diesel fuel prices to consumers by 14 percent. The move was taken as a measure to reduce the government’s large budget deficit to avoid a downgrade of the country’s credit rating to “junk” bond status.
On September 12 Professor Tan Hong of China’s National Judges College visited the University of Maryland Carey School of Law. He gave a terrific talk about recent legal reforms in China to a large and enthusiastic group of environmental and international law students. Tim Epp of EPA’s Environmental Appeals Board is hosting Professor Tan’s visit to Washington. Professor Tan discussed administrative cases filed when citizens challenge actions by local units of government. There are more than 1 million such cases filed each year with the most frequent category of cases being urban development followed by natural resources cases. Labor cases are the fourth (and fastest growing) category. Professor Tan noted that when China authorized intermediate courts to provide “off-site jurisdiction” by transferring cases from local courts who might favor local agencies to another jurisdiction within the region, the success rate of plaintiffs rose from 40 percent to 70 percent. One oddity is that Article 50 of China’s Administrative Procedure Law has been interpreted to bar mediation of administrative cases so that settlements are difficult. Professor Tan predicted that this provision would be amended. He also noted that the Standing Committee of the National People’s Congress has just amended the China’s Code of Civil Procedure to allow authorized organizations to bring public interest litigation in environmental cases. China’s Ministry of Environmental Protection also recently announced that environmental impact assessments and government decisions concerning them will be made available to the public online.
France’s ruling party has promised to reduce the country’s reliance on nuclear power from 75 percent to 50 percent by closing 24 nuclear reactors by the year 2025. On September 15 French President Francois Hollande announced that the nuclear powerplant at Fessenheim would be closed. He also announced that he effectively would continue the country’s moratorium on hydraulic fracturing (“fracking”) by rejecting seven applications for shale gas exploration. Hollande cited “the heavy risk to health and the environment” from fracking in rejecting the applications. He also announced the creation of a national agency to protect biodiversity.
On September 13 India announced that it would significantly reduce the $34 billion it spends each year to subsidize the price of fuel. The goverment’s action is expected to raise diesel fuel prices to consumers by 14 percent. The move was taken as a measure to reduce the government’s large budget deficit to avoid a downgrade of the country’s credit rating to “junk” bond status.
On September 12 Professor Tan Hong of China’s National Judges College visited the University of Maryland Carey School of Law. He gave a terrific talk about recent legal reforms in China to a large and enthusiastic group of environmental and international law students. Tim Epp of EPA’s Environmental Appeals Board is hosting Professor Tan’s visit to Washington. Professor Tan discussed administrative cases filed when citizens challenge actions by local units of government. There are more than 1 million such cases filed each year with the most frequent category of cases being urban development followed by natural resources cases. Labor cases are the fourth (and fastest growing) category. Professor Tan noted that when China authorized intermediate courts to provide “off-site jurisdiction” by transferring cases from local courts who might favor local agencies to another jurisdiction within the region, the success rate of plaintiffs rose from 40 percent to 70 percent. One oddity is that Article 50 of China’s Administrative Procedure Law has been interpreted to bar mediation of administrative cases so that settlements are difficult. Professor Tan predicted that this provision would be amended. He also noted that the Standing Committee of the National People’s Congress has just amended the China’s Code of Civil Procedure to allow authorized organizations to bring public interest litigation in environmental cases. China’s Ministry of Environmental Protection also recently announced that environmental impact assessments and government decisions concerning them will be made available to the public online.
Monday, September 10, 2012
Candidates on Climate Change, BP Spill Litigation, Arctic Drilling and Ice Melt, Benefits of Clean Air & Nanjing Judges (by Bob Percival)
In his acceptance speech at the Democratic National Convention, President Obama declared that “climate change is not a hoax” and that “more droughts and floods and wildfires” are “a threat to our children’s future.” In online replies to questions from scientists published at http://www.sciencedebate.org/debate12/, Republican candidate Mitt Romney seemed to backtrack on his acceptance speech by stating that: "I am not a scientist myself, but my best assessment of the data is that the world is getting warmer, that human activity contributes to that warming, and that policymakers should therefore consider the risk of negative consequences."
On September 5 the Justice Department filed a brief in connection with BP’s settlement of $7.8 billion in private civil claims. The brief argued that BP had engaged in gross negligence and willful misconduct in connection with the 2010 Gulf oil spill. The filing was designed to preserve the government’s ability to seek the maximum penalty of $21 billion against BP for gross negligence if settlement negotiations with the government fail.
Over the weekend Royal Dutch Shell began drilling the first pilot well in the Chukchi Sea off the northern coast of Alaska. It has taken Shell seven years and more than $4 billion to gain approval for the drilling. The well is in shallow water (only 130 feet deep), but it is estimated that any oil is 8,000 feet below the seabed. Shell will have to cease drilling for the season by September 24 when it will be only 1,400 feet down, but it expects to complete the well next summer. Shell has a second drill ship that will drill in the Beaufort Sea northeast of Alaska, but it has not been deployed yet in order to avoid interfering with whale migration. Environmentalists continue to maintain that Shell is ill-equipped to contain an oil spill int he arctic.
Last week the Arctic ice cap experienced more extensive melting this summer than ever previously recorded. Scientists attributed the unprecedented thaw to both natural weather variations and the impact of global warming. The ice cap shrunk from more than 9 million square miles in March 2012 to 1.54 million square miles. This was 70,000 square miles less than the previous record low recorded in September 2007. The six lowest Arctic ice cap levels recorded have occurred during the last six summers. Melting of the Arctic ice cap can have significant effects on weather patterns, but it does not raise sea levels because the ice is floating over sea water and displaces the same amount of water when frozen as it releases when melted. Robert Lee Hotz, Record Ice Thaw in Arctic, Greenland, Wall St. J., Sept. 7, 2012, at A2. Concern about sea level rise has focused on this summer’s commencement of dramatic melting over nearly the entire Greenland ice cap, including at the highest elevations of this land mass.
On September 7, 2012, the U.S. and Canada amended their bilateral agreement concerning environmental protection of the Great Lakes. This is the third time the 1978 agreement has been amended with the previous amendments being made in 1983 and 1987. EPA’s website describes the amendments in the following terms: “The updated Agreement facilitates United States and Canadian action on threats to Great Lakes water quality and includes measures to prevent ecological harm. New provisions address the nearshore environment, aquatic invasive species, habitat degradation, and the effects of climate change. It also supports continued work on existing threats to people's health and the environment in the Great Lakes basin such as harmful algae, toxic chemicals, and discharges from vessels.” A copy of the amended agreement is available online at: http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf
In his new book The Silent Epidemic: Coal and the Hidden Threat to Health, which is being published this month by MIT Press, Professor Alan H. Lockwood of the University of Buffalo notes that the Clean Air Act has prevented more than 180,000 deaths per year, a number that may increase by 2020 to 230,000 avoided deaths per year. This will produce an estimated $22 trillion in net benefits, a number that is more than 40 times greater than estimates of compliance costs. Lockwood estimates that this has saved the federal government so much in federally-funded health costs that the feds could have paid for all compliance costs and still have come out ahead. A summary of the study is available online at: http://www.theatlantic.com/health/archive/2012/09/how-the-clean-air-act-has-saved-22-trillion-in-health-care-costs/262071/
On Tuesday September 4 I presented a two and a half hour lecture to a group of twenty judges from the Intermediate People’s Court of Nanjing Province, China. The judges are in the U.S. on a training program sponsored by the Chinese government and the Maryland China Initiative that is based at the University of Maryland at College Park. The judges were a truly exceptional group who asked some of the best questions I have ever received from a visiting foreign delegation. We had a lively discussion of how China can improve its environmental laws, the importance of citizen suits, and political pressure as a defense tactic.
On Thursday September 6 I presented a paper on the common law of interstate nuisance in the wake of the Supreme Court’s 2011 American Electric Power decision at the first Legal Theory Workshop of the year at Maryland. I greatly appreciated the comments of my colleagues on the paper. The paper, entitled “Of Coal, Climate and Carp: Reconsidering the Federal Common Law of Interstate Nuisance,” focuses on North Carolina’s state common law nuisance litigation against the TVA’s upwind coal-fired powerplants, the Supreme Court’s decision in American Electric Power v. Connecticut, and efforts to use federal common law to stop the spread of invasive species of Asian carp to the Great Lakes.
On Thursday night I went with Maryland Dean Phoebe Haddon, Maryland Professor Bob Condlin and Georgetown Professor Phil Schrag to a sold-out Camden Yards for the most important baseball game of the year for the Baltimore Orioles. Until baseball came to Washington, D.C. in 2005, I had been an Orioles season ticket holder for nearly 25 years and a Yankee fan for more than four decades. I then became a Washington Nationals season ticket holder (since I live in D.C.) and a passionate fan of the Nats. The Orioles defeated the Yankees 10-6 by hitting six home runs in the game (incredibly a feat the Nats accomplished at home for the first two times on Tuesday and Wednesday). The victory tied the Os with the Yankees for first place in the American League East. After seven years without a winning record, this has been a dream season in which the Nats currently have the best record in all baseball with less than four weeks left in the season. A beltway World Series next month between the Nats and the Orioles would be a cherished dream to baseball fans in the Baltimore/Washington area.
On September 5 the Justice Department filed a brief in connection with BP’s settlement of $7.8 billion in private civil claims. The brief argued that BP had engaged in gross negligence and willful misconduct in connection with the 2010 Gulf oil spill. The filing was designed to preserve the government’s ability to seek the maximum penalty of $21 billion against BP for gross negligence if settlement negotiations with the government fail.
Over the weekend Royal Dutch Shell began drilling the first pilot well in the Chukchi Sea off the northern coast of Alaska. It has taken Shell seven years and more than $4 billion to gain approval for the drilling. The well is in shallow water (only 130 feet deep), but it is estimated that any oil is 8,000 feet below the seabed. Shell will have to cease drilling for the season by September 24 when it will be only 1,400 feet down, but it expects to complete the well next summer. Shell has a second drill ship that will drill in the Beaufort Sea northeast of Alaska, but it has not been deployed yet in order to avoid interfering with whale migration. Environmentalists continue to maintain that Shell is ill-equipped to contain an oil spill int he arctic.
Last week the Arctic ice cap experienced more extensive melting this summer than ever previously recorded. Scientists attributed the unprecedented thaw to both natural weather variations and the impact of global warming. The ice cap shrunk from more than 9 million square miles in March 2012 to 1.54 million square miles. This was 70,000 square miles less than the previous record low recorded in September 2007. The six lowest Arctic ice cap levels recorded have occurred during the last six summers. Melting of the Arctic ice cap can have significant effects on weather patterns, but it does not raise sea levels because the ice is floating over sea water and displaces the same amount of water when frozen as it releases when melted. Robert Lee Hotz, Record Ice Thaw in Arctic, Greenland, Wall St. J., Sept. 7, 2012, at A2. Concern about sea level rise has focused on this summer’s commencement of dramatic melting over nearly the entire Greenland ice cap, including at the highest elevations of this land mass.
On September 7, 2012, the U.S. and Canada amended their bilateral agreement concerning environmental protection of the Great Lakes. This is the third time the 1978 agreement has been amended with the previous amendments being made in 1983 and 1987. EPA’s website describes the amendments in the following terms: “The updated Agreement facilitates United States and Canadian action on threats to Great Lakes water quality and includes measures to prevent ecological harm. New provisions address the nearshore environment, aquatic invasive species, habitat degradation, and the effects of climate change. It also supports continued work on existing threats to people's health and the environment in the Great Lakes basin such as harmful algae, toxic chemicals, and discharges from vessels.” A copy of the amended agreement is available online at: http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf
In his new book The Silent Epidemic: Coal and the Hidden Threat to Health, which is being published this month by MIT Press, Professor Alan H. Lockwood of the University of Buffalo notes that the Clean Air Act has prevented more than 180,000 deaths per year, a number that may increase by 2020 to 230,000 avoided deaths per year. This will produce an estimated $22 trillion in net benefits, a number that is more than 40 times greater than estimates of compliance costs. Lockwood estimates that this has saved the federal government so much in federally-funded health costs that the feds could have paid for all compliance costs and still have come out ahead. A summary of the study is available online at: http://www.theatlantic.com/health/archive/2012/09/how-the-clean-air-act-has-saved-22-trillion-in-health-care-costs/262071/
On Tuesday September 4 I presented a two and a half hour lecture to a group of twenty judges from the Intermediate People’s Court of Nanjing Province, China. The judges are in the U.S. on a training program sponsored by the Chinese government and the Maryland China Initiative that is based at the University of Maryland at College Park. The judges were a truly exceptional group who asked some of the best questions I have ever received from a visiting foreign delegation. We had a lively discussion of how China can improve its environmental laws, the importance of citizen suits, and political pressure as a defense tactic.
On Thursday September 6 I presented a paper on the common law of interstate nuisance in the wake of the Supreme Court’s 2011 American Electric Power decision at the first Legal Theory Workshop of the year at Maryland. I greatly appreciated the comments of my colleagues on the paper. The paper, entitled “Of Coal, Climate and Carp: Reconsidering the Federal Common Law of Interstate Nuisance,” focuses on North Carolina’s state common law nuisance litigation against the TVA’s upwind coal-fired powerplants, the Supreme Court’s decision in American Electric Power v. Connecticut, and efforts to use federal common law to stop the spread of invasive species of Asian carp to the Great Lakes.
On Thursday night I went with Maryland Dean Phoebe Haddon, Maryland Professor Bob Condlin and Georgetown Professor Phil Schrag to a sold-out Camden Yards for the most important baseball game of the year for the Baltimore Orioles. Until baseball came to Washington, D.C. in 2005, I had been an Orioles season ticket holder for nearly 25 years and a Yankee fan for more than four decades. I then became a Washington Nationals season ticket holder (since I live in D.C.) and a passionate fan of the Nats. The Orioles defeated the Yankees 10-6 by hitting six home runs in the game (incredibly a feat the Nats accomplished at home for the first two times on Tuesday and Wednesday). The victory tied the Os with the Yankees for first place in the American League East. After seven years without a winning record, this has been a dream season in which the Nats currently have the best record in all baseball with less than four weeks left in the season. A beltway World Series next month between the Nats and the Orioles would be a cherished dream to baseball fans in the Baltimore/Washington area.
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