Paris Agreement Signed at UN, ELI Oral History Project, Goldman Prizes, Thank You Abdelrahman Hammad (by Bob Percival)

In a ceremony at the United Nations on Earth Day (April 22), representatives of 175 countries signed the Paris Agreement that had been reached on December 12, 2015.  The agreement contains new commitments from the parties to the UN Framework Convention on Climate Change to limit their greenhouse gas emissions. The representatives were accompanied by 197 children from various nations, including U.S. Secretary of State John Kerry’s granddaughter.  Kerry signed the agreement while holding his granddaughter.  U.N. Secretary General Ban Ki-moon stated: "These young people are our future. Our covenant is with them. Today is a day for our children and grandchildren and all generations to come."

On Earth Day the Environmental Law Institute (ELI) unveiled its long-awaited environmental law oral history project. ELI President Scott Fulton stated the the project “provide[s] first-hand interviews of men and women from a variety of career backgrounds who were instrumental in catalyzing the environmental laws of the 1970s that have served as the bedrock of environmental protection in the decades since.”  These include: John Adams, Michael Bean, Fran Beinecke, Leon Bills and Tom Jorling, Leslie Carothers, Henry Diamond, Bill Eichbaum, J. William Futrell, Kinnan Golemon, Denis Hayes, George Mitchell, Jim Moorman, Mary Nichols, William Reilly, William Rodgers, William Ruckelshaus, George Shultz, David Sive, Gus Speth, Robert Stanton, Russell Train, Henry Waxman, and Nick Yost.  The interviews can be viewed online at: http://www.eli.org/celebrating-pioneers-in-environmental-law.

Last week six environmental heroes were honored as recipients of the Goldman Environmental Prize.  They included a Baltimore high school student, Destiny Watford, Zuzana Caputova of Slovakia, Leng Ouch of Cambodia, Máxima Acuña of Costa Rica, Luis Jorge Rivera Herrerra of Puerto Rico, and Edward Loure of Tanzania.  Ms. Watford helped organize her fellow students to protest the siting of what would have been the nation’s largest incinerator less than a mile from her school.  Having blocked the project, they now hope to turn the site into a solar farm.  Information about all of the 2016 recipients is available online at: http://www.goldmanprize.org/prize-recipients/current-recipients/

Having finished spring classes last week, this week was a very active one for me.  I gave four presentations in four cities in four days.  After finishing my first guest lecture on Chinese environmental law in College Park on April 19, I had a near disaster.  While returning to the parking garage, I placed my laptop (in its Twelve South Hardback leather book case) on the trunk of my car.  Distracted by a call on my car’s phone, I forgot about the laptop and it fell off my trunk as I pulled away.  After returning to Capital Hill I found an email message from Abdelrahman Hammad, a UM-College Park student, telling me that he had retrieved the laptop after it fell off my trunk.  Fortunately its case cushioned the fall and it was working fine.  I immediately returned to College Park’s Student Union where Mr. Hammad returned the laptop to me.  He refused to accept a reward, saying that he would hope that a stranger would do the same for him if he lost his laptop.  Mr. Hammad, thank you for saving my week, which would have been hard to face without my laptop. 

On April 20 I gave a guest lecture on climate change to a seminar on “Critical Issues in Global Health,” which is taught in the UM-Baltimore Nursing School.  On April 21 I was invited to comment on Georgetown Law Professor Randy Barnett’s new book “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” at a book launch event at the Cato Institute. Video of the program is online at: http://www.cato.org/events/our-republican-constitution-securing-liberty-sovereignty-we-people  In my comments I decried the politicization of the courts, which has been taken to unprecedented levels by the right’s insistence that Judge Merrick Garland’s nomination to the Supreme Court is not even worthy of a hearing because he probably would not decide cases to reach their preferred results.

On April 22 I was a speaker on a program on “Emerging Theories of Climate Liability and Enforcement” at the University of Houston.  Also speaking on the program were former EPA general counsel Roger Martella and Professor Clara Poffenberger.  We discussed lawsuits seeking to hold large polluters or governments responsible for the harmful impacts of climate change and the effort by attorneys general to investigate potential RICO liability by ExxonMobil for alleged efforts to deliberately deceive the public about climate change. Video of the program will be posted in the near future at: http://www.law.uh.edu/eenrcenter/speaker-series.asp 

More student blog posts have been added today that can be viewed on my parallel blog at: www.globalenvironmentallaw.com by clicking on the “Students” tab at the top of the opening page.  These include Nicholas Warren’s discussion of the difficulties of enforcing foreign environmental judgments, analysis by Zhang Zhouxian of litigation by NGOs under China’s new public interest litigation law, and Jinxin Sui’s discussion of environmental law in India.

Tomorrow I leave for Rio de Janeiro to participate in the first World Congress on Environmental Rule of Law at the Supreme Court of Rio de Janeiro.  The Congress also will feature the launch of the Global Judicial Institute on the Environment, an organization designed to assist judges around the world in developing greater capacity to handle environmental cases.

Jakarta Traffic, Wild Tigers Increase, Mumbai Trash, Chinese Groundwater, Chinese "Love Canal," Golden Trees, Student Posts (by Bob Percival)

In September I was able to experience first hand the horrendous traffic congestion in Jakarta, Indonesia, one of the few cities in the world without a rapid transit system.  Last week an order by Jakarta Governor Basuki Tjahaja Purnama went into effect that suspended regulations prohibiting vehicles with less than three passengers from using major highways during rush hour.  The justification for the one-week suspension was that the rules had encouraged exploitation of children who were hired out to enable cars to meet the three-person requirement.  Predictably, traffic became even worse during the one-week suspension.  Governor Basuki has proposed an electronic congestion pricing system like those used in SIngapore and central London, but he has not been given the authority to impose it. Joe Cochrane, And Indonesians Thought the Traffic Was Bad Before, N.Y. Times, Sept. 11, 2016, at A4. 

The World Wildlife Fund and the Global Tiger Forum announced that the global population of tigers in the wild has increased for the first time since 1900.  There are now an estimated 3,890 tigers in the wild, a huge decline from the estimated 100,000 present in 1900, but an increase from the 3,200 estimated in 2010. In a Christine Hauser, Number of Tigers in the Wild Rises for the First Time in a Century, Conservationists Say, N.Y. Times, April 12, 2016, at A8.

For the first time since 1996 the acreage of crops planted with genetically modified seeds (GMOs) declined in 2015. The decline was slight, only 1%, and due largely to falling commodity prices that  encouraged less planting.  The U.S., Brazil and Argentina account for more than three-quarters of worldwide use of GMOs, which are found largely in corn, soybeans, cotton and canola. Andrew Pollack, Planting of Genetically Modified Crops Declined in 2015, N.Y. Times, April 13, 2016, at B1.

A mountain of trash the size of the national mall in Washington, D.C., has been burning in the Indian city of Mumbai.  More than half of Mumbai’s garbage is dumped untreated each day in this Deonar garbage dump.  Public outrage over the stench and pollution from the burning has spurred what some are calling a middle class environmental awakening as citizens demand that the government shut the dump down.  The city government is considering moving its garbage disposal to a site in a rural area outside of Mumbai, but it is not moving fast enough to satisfy residents near the current dump. Rama Lakshmi, In Mumbai, Fury Over a Burning Trash Mountain, Washington Post, April 16, 2016, at A6.

Last week the Chinese media reported that a survey of 2,100 wells found that 80 percent of the groundwater used by farms, homes and factories is heavily polluted.  Most of the contaminated water was classified as Class 5, the worst category of contamination. Chris Buckley & Vanessa Piao, Rural Water, Not City Smog, May Be China’s Pollution Nightmare, N.Y. Times, April 12, 2016, at A4.  CCTV reports what Professor Zhao Huiyu describes as a “Chinese Love Canal” where a middle school in Changzhou was discovered to be located on the site of closed chemical plants.  The site was found to be heavily contaminated with toxic chemicals and 493 students were found to have health problems associate with toxic exposure.  An editorial about the incident is at:

http://m.thepaper.cn/newsDetail_forward_1457962?from=groupmessage&isappinstalled=0 (in Chinese, but written well enough to understand with Google translate).

On April 6 we held our annual Golden Tree awards ceremony for films produced by students in my Environmental Law class last fall.  The award for Best Picture went to the film “Perspectives on Electronic Waste and Recycling” by Christine Wang.  This film also received awards for Best Cinematography and Best Interviews.  “Tough Time to Be a Bee” by Renee Lani and Brieanah Schwartz won Golden Trees for Most Educational and Best Use of Humor.  It also won a Special Judge’s Award for “Best Alcohol Ad” based on a scene interviewing a winemaker who uses honey to make mead wine.   “Apple in China” by Jinxin Sui and Fangzhou Xie received awards for Best Sound Quality, Best Special Effects and Best Music.

Students in my Global Environmental Law seminar have made guest blog posts about their research that I will be posting in the “Students” section of my parallel blog that can be found at http://www.globalenvironmentallawcom.  The first group of posts includes: (1) 3L Alex Stern’s articulation of a strategy for getting Maryland to join the 22 other states that have environmental amendments in their state constitution, (2) 1L Sara DiBernardo’s discussion of the implications of rapid sea level rise caused by climate change, (3) 2L James McKittrick’s discussion of the challenge of pollution from the maritime cargo industry, and (4) 1L Kerri Morrison’s explanation of the global status of nuclear waste disposal.  Several more student blogs entries will be added to this parallel blog over the next week.

Catastrophic Sea Level Rise More Likely, Hawkes Argument, FTC Sues VW, Judge Hufstedler's Passing (by Bob Percival)

Catastrophic sea level rise rapidly is becoming a more realistic possibility.  A recent study has indicated that global warming may cause the west Antarctic ice shelf to break apart and melt, raising global sea levels by 12 feet or more.  Total sea level rise could be five to six feet by 2100, more than twice the worst case scenario recently forecast by the Intergovernmental Panel on Climate Change (IGPCC).  In the next century sea levels could rise by as much as a foot per decade.  Justin Gillis, Climate Model Predicts West Antarctica Ice Sheet Could Melt Rapidly, New York Times, March 30, 2016. Another indication of rapid global warming, though not one that will contribute to sea level rise, is that for the second year in a row Arctic sea ice was at a record low wintertime maximum last month.

On March 30 I took some of the students in my Global Environmental Law Seminar to the U.S. Supreme Court to watch the oral argument in U.S. Army Corps of Engineers v. Hawkes Co.  The case involves a challenge by the federal government to a lower court ruling holding that landowners can immediately obtain judicial review of determinations that wetlands subject to §404 of the Clean Water Act are present on their property.  Based on the tenor of the argument, it seems unlikely that the federal government will win the case.  Justice Kennedy, the key swing vote, stated that “the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice.” Justice Sotomayor asked counsel for the Solicitor General, assuming that the government loses, “what’s the narrowest way to write this that the government would like?”

Last week the U.S. Federal Trade Commission (FTC) sued Volkswagen (VW) for deceiving consumers by advertising its supposedly “clean diesel” VWs and Audis.  The FTC charged that these claims were false and that VW equipped the cars with illegal emission defeat devices to deceive government emission testing. The FTC asked the court to require Volkswagen to compensate American consumers who bought affected vehicles between late 2008 and late 2015.  The FTC also sought an injunction to bar VW from such wrongdoing in the future.  

Automakers reportedly are having trouble complying with U.S. fuel economy standards as plunging oi prices encourage consumers to buy less fuel-efficient vehicles. Bill Vlasic, Automakers Likely to Ask for Leniency in Fule Rule, N.Y. Times, March 23, 2016, at B1.  However, the extraordinary consumer response to last week’s unveiling of the Tesla 3 electric car suggests that the transition to green transportation is alive and well.  Tesla received more than 275,000 pre-orders for the vehicle in three days.

Last week the U.S. Department of Justice filed its brief defending EPA’s Clean Power Plan (CPP), which regulates emissions of greenhouse gases by existing powerplants.  There are so many parties and amici in the case that six pages of the 175-page brief are a single-spaced listing of them.  Oral argument in the case, which is being heard by the U.S. Court of Appeals for the D.C. Circuit, will be held on June 2. While the CPP was stayed by the Supreme Court four days before the death of Justice Scalia, the prospect of a 4-4 split in that Court makes the D.C. Circuit’s decision potentially the final word on its legality.

On Wednesday March 30, pioneering former federal Judge Shirley M. Hufstedler passed away.  I had the enormous privilege of serving as a law clerk to her during 1978-79 when she was on the U.S. Court of Appeals for the Ninth Circuit.  In 1980, following my clerkship with Supreme Court Justice Byron White, I became a special assistant to Judge Hufstedler when she served as the first U.S. Secretary of Education.  It is widely believed that if a vacancy had arisen on the U.S. Supreme Court, President Carter would have nominated Judge Hufstedler to become the first female Justice on the Court. Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”. Carter would have nominated Judge Hufstedler to become the first female Justice on the Court.  Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”.

Maryland China Environmental Law Field Trip, Global Carbon Emissions Stable, Canada and U.S. Target Methane Emissions, Japanese Court Bars Rector Restart (by Bob Percival)

On Sunday night March 20 I returned from ten days in China where I led Maryland’s biennial environmental law field trip.  This year’s group consisted of eleven law students, two alums, myself and Professor Mike Pappas and program managing director Bill Piermattei.  We arrived in Beijing on March 11 and on March 12 we visited the Summer Palace, the Forbidden City, Houhai Lake and the offices of the Center for Legal Assistance to Pollution Victims (CLAPV).  CLAPV discussed some of the lawsuits it has brought under China’s new legislation expressly authorizing public interest environmental litigation.  These included successful litigation against a mine in a national protected area for which damages for ecosystem destruction were awarded.

On March 13 Maryland law dean Donald Tobin and Director of Admissions Katrina Schroll joined us for a trip to the Great Wall at Mutianyu.  After a long hike along the wall we all enjoyed sliding down on toboggans.  After visiting the Lama Temple in Beijing on the morning of March 14, the group visited the offices of the Environmental Defense Fund (EDF) and the Natural Resources Defense Council (NRDC).  EDF staff briefed us on their efforts to assist the Chinese government in extending seven pilot carbon cap-and-trade programs into a national system.  NRDC staff briefed us on their efforts to educate Chinese lawyers in how to bring public interest litigation under China’s newly amended environmental law.

On the evening of March 14 the group took an overnight train to Xi’an where we visited the site where thousands of terracotta warriors were buried by Emporer Qin in the third century BC.  We also explored Xian’s old city walls and visited an art gallery where we learned how to write Chinese characters.  On March 17 we flew from Xi’an to Shanghai where the group visited the World Financial Center, Taikang Lu (Tenzi Fang), Yuyuan Gardens and the Jade Buddha Temple.  On March 18 I hosted a reception at the Marriott Tomorrow Square where the group heard Zhenxi Zhong from the Shanghai office of Jane Goodell’s Roots & Shoots talk about that groups efforts to improve environmental education in China and to plant two million trees in Mongolia.  

On March 19 my students and I participated in a day-long conference on “Green China: A Summit on Public Interest Litigation and Environmental Governance” at Shanghai Jiatong University’s Koguan School of Law.  The conference was terrific because it included more top Chinese environmental law experts than I have ever seen gathered in one place.  After introductory welcomes from Shanghai Jiatong law dean Weidong Ji and Maryland Law dean Donald Tobin, I gave one of the opening keynotes on the importance of public interest litigation for the development, implementation and enforcement of environmental law.  A particularly interesting part of the conferene was a roundtable discussion featuring Ge Feng from Friends of Nature, Ma Yong from the China Biodiversity Conservation and Green Development Foundation, and Liu Xiang from CLAPV.  They expressed growing optimism concerning the state of environmental law in China.  Two important issues that remain unresolved are the relationship between NGOs and the procurate, which also has been authorized to bring public interest environmental litigation, and how natural resource damages awards should be used.

Four of my students made presentations at the conference.  Maryland 2L Renee Lani spoke about the importance of environmental law clinics.  Maryland 1L Catherine McGrath presented on the use of market share liability in MTBE cases in the U.S.  Maryland 2L Zhang Zhuoxian spoke on what Chinese courts could learn from U.S. experience and Maryland 2L Zach Wilkins spoke about efforts to control transboundary air pollution in ASEAN nations.  I hope to post an album of photos from the trip in the near future on my parallel blog at: www.globalenvironmentallaw.com

In other news: 

Global carbon emissions remained flat for the second straight year, aided by a decline in coal consumption in China.

At a White House meeting, Canadian Prime Minister Justin Trudeau and President Obama pledged to reduce methane emissions from oil and gas operations in the U.S. and Canada.

Thousands of fish died in Ulsoor Lake in Bengaluru, India due to failure to repair a barrier designed to keep sewage out of the lake.

J.P. Morgan Chase joined the growing list of major financial institutions to announce that it will no longer finance new coal mines.

The Otsu District Court in Japan issued an injunction halting the restart of reactors No. 3 & 4 at Kansai Electric Power Company’s Takahama nuclear power plant.

Honduran Activist Murdered, Court Denies Review of Chesapeake TMDL, London Court Allows Suit against Shell by Nigerians, Fukushima Criminal Prosecution, University of Chicago China Conference (by Bob Percival)

On March 3 Honduran environmental activist Berta Caceres was murdered by gunmen who broke into her home and shot her four times. Caceres had been awarded the Goldman Environmental Prize in 2015 for her work opposing construction of the Agua Zarca Dam.  Carcares had complained that she had received death threats from police, landowners groups and the army.  Her daughter Olivia declared that “[m]y mother died because she defended the land and rivers of her country.” James Nealon, U.S. Ambassador to Honduras stated that the U.S. government has “asked for a rapid and exhaustive investigation so the full weight of the law can be applied to those responsible.” 

On February 29 the U.S. Supreme Court rejected petitions from the American Farm Bureau Federation and 22 states challenging EPA’s program to clean up the Chesapeake Bay.  Pursuant to its authority under § 303(d) of the Clean Water Act, EPA specified total maximum daily loadings (TMDLs) for pollutants into the Bay and allocated them among sources. EPA’s decision was upheld by a federal district court in Pennsylvania in 2013 and by the U.S. Court of Appeals for the Third Circuit in July 2015.  Both decisions were “slam dunks” in favor of EPA, which made Supreme Court review unlikely.  What was particularly odd was that the states seeking Supreme Court review did not adjoin the Chesapeake Bay; Bay states supported EPA’s action and the decisions below. 

On March 3 Supreme Court Chief Justice John Roberts denied a request from 20 states to stay EPA’s regulations controlling emissions of mercury and other toxic air pollutants under § 112 of the Clean Air Act.  Last June the Court held that EPA had violated the Clean Air Act by failing first to consider costs before decided to regulate such emissions from power plants.  However, the regulations were not vacated by the Supreme Court and the D.C. Circuit on remand kept them in place while EPA completes the required cost analysis.  It is likely the stay motion was a product of the Court’s unprecedented stay of EPA’s Clean Power Plan on February 9, decided by a 5-4 vote before the D.C. Circuit, which had denied a stay, ruled on the merits of the case.  That action is likely to encourage more interlocutory stay requests, but after Justice Scalia’s death it is unlikely they will garner the required five votes from the now 8-member Court.

On March 2 a court in London ruled that tens of thousands of plaintiffs from two Nigerian communities could sue Royal Dutch Shell’s Nigerian unit in the UK over oil pollution that affected them. Sarah Kent, Court: Nigerians Can Sue Shell in the UK, Wall St. J., March 3, 2016, at B3.  The plaintiffs are represented by the London law firm of Leigh Day & Co., which last year won a judgment of $83.5 million against Shell.  Shell argued that the court in London had no jurisdiction over the claims and that by allowing the lawsuit to go forward there the British court was interfering with Nigerian sovereignty.  Three years ago the U.S. Supreme Court in the Kiobel case generally barred lawsuits in U.S. courts for harm caused abroad by foreign companies.  

Last week three former executives of the Tokyo Electric Power Company (TEPCO) were charged with criminal negligence in connection with the March 2011 disaster at the Fukushima Daichi nuclear power plant.  After prosecutors initially dropped plans to pursue criminal charges, an 11-member judicial panel revived the investigation last July.  The executives argue that a tsunami of the size that triggered the disaster could not have been anticipated.  Due to the disaster, only three of Japan’s 43 workable nuclear reactors have gone back on line.

On Friday March 4 the University of Chicago and Beijing’s Tsinghua University co-sponsored a conference on “Pathways to a Clean Environment: Law, Enforcement and the Public in China & the United States.”  The conference was held at the University of Chicago.  I joined Professor Zhao Huiyu of Shanghai Jiaotong University’s KoGuan Law School in presenting a paper we co-authored on “Comparing Environmental Governance in China and the United States: Federalism in an Age of Globalization.”  The conference featured some of the top scholars on Chinese environmental law including several who flew in from China for the conference. Next June I will be participating in a followup to the Chicago conference on environmental law in China at Tsinghua University in Beijing.  I moderated a conference session in which Mark Templeton, director of Chicago’s Abrams Environmental Law Clinic, presented a paper on the Flint, Michigan, lead poisoning tragedy.   On the morning of March 1st I was interviewed about the Flint lead poisoning and the potential liability of government officials on Lansing, Michigan’s MIRS Radio “The Big Show.”   

Last week the Chinese government announced that for the second consecutive year China had reduced its consumption of coal.  China’s consumption of coal fell 3.7% in 2015 after a 2.9% decline in 2014.  This announcement was hailed as a sign that Chinese emissions of greenhouse gases may peak even earlier than the 2030 target date the Chinese government has endorsed.  Edward Wong, In a Hopeful Sign on Climate Change China May Have Reached Peak Coal Use, N.Y. Times, March 3, 2016, at A5.

The coolest video of the week was the film of First Lady Michelle Obama’s visit to the school garden project my wife directs as a full-time volunteer at Watkins Elementary School on Capital Hill.  Here’s the link from the Huffington Post report on it: http://www.huffingtonpost.com/entry/michelle-obama-surprised-elementary-students-their-reactions-were-priceless_us_56d9c055e4b03a405678685e

Beijing Red Alert Threshold Raised, Sea Level Rise Fastest in 2800 Years, Senate Won't Consider Any Nominee, WOTUS Rule, Cambodia to Use Missiles Against Illegal Loggers (by Bob Percival)

On February 21 Beijing’s environmental protection board announced that it will raise the threshold for how much pollution triggers a “red alert” requiring schools to close and outdoor construction work to be suspended.  Now such an alert will be triggered when the air quality index exceeds 500 for a day, 300 for two days in a row or 200 for four days.  Previously a level of 200 would trigger a red alert.  Last much Beijing authorities announced that they plan to close 2,500 small enterprises that are highly polluting.

A study released last week showed that sea levels are rising at the fastest rate in 2,800 years due to rising global temperatures.  Robert E. Kopp, et al., Temperature-driven Global See- Level Variability in the Common Era, Proceedings of the National Academy of Sciences (http://www.pnas.org/content/early/2016/02/17/1517056113).  Another study found that coastal flooding is occurring twice as frequently as it did during the 1980s.  Climate Central, Unnatural Flooding: Sea Level and the Human Fingerprint on U.S. Floods since 1950 (http://sealevel.climatecentral.org/uploads/research/Unnatural-Coastal-Floods-2016.pdf).  

EPA reported last week that emissions of greenhouse gases (GHG) in the U.S. increased slightly in 2014.  U.S. GHG emissions rose 0.9% in 2014 after increasing 2.2% in 2013. EPA attributed the rise to increased use of fossil fuels in the energy and transportation sectors due in part to greater vehicle miles traveled.  U.S. emissions still remain 7.5% below the level in 2005, which is used as a baseline for GHG reduction pledges.

The Republican leadership of the Senate hardened their position against giving any consideration to a nomination by President Obama of a new Supreme Court Justice to replace the late Justice Antonin Scalia.  Despite considerable disinformation, this is truly an unprecedented move that looks ridiculous on its face because no nominee has been chosen yet.  Apparently the Republican leadership is afraid that a nominee would gain considerable public support if hearings were held.  While Republicans cite long ago statements by Democrats against election year confirmations, they fail to note that their position when such statements were made was that Republican nominees should be considered in election years.  This is pure partisan politics which can only increase public perception that the Court has become another political branch of government.

If the U.S. Supreme Court remains with only eight members for a prolonged period, one of the areas of environmental law that may remain hopelessly confused is the reach of federal jurisdiction under the Clean Water Act.  On February 22, a split panel of the U.S. Court of Appeals for the Sixth Circuit found that it had jurisdiction to consider challenges to EPA’s “waters of the U.S.” rule.  The rule is designed to clarify the limits of federal jurisdiction under the Clean Water Act.  Because the Clean Water Act, unlike the Clean Air Act, does not give the D.C. Circuit exclusive venue to hear challenges to EPA actions, a circuit split may well develop that the Supreme Court will be unable to resolve.

On Friday a reporter for The Guardian called me to get my reaction to the pledge by some Republican presidential candidates to eliminate the U.S. Environmental Protection Agency (EPA).  I called it a “ridiculous” idea that would weaken air and water pollution controls in the U.S. and make our country more like China.  Oliver Milman, Republican Candidates’ Call to Scrap EPA Met with Skepticism by Experts, The Guardian, Feb. 26, 2016 (http://www.theguardian.com/environment/2016/feb/26/republican-candidates-donald-trump-eliminate-epa-law-experts ). On his program Real Time on Friday night, Bill Maher said the following about Donald Trump’s pledges to eliminate the U.S. Department of Education and EPA: “When you want to make America great again, stupid and poisoned is a great place to start.”  The right seeks to portray EPA as radically out of control, but those who propose to abolish it are the true radicals.

Cambodian Prime Minister Hun Sen announced last week that he has authorized police helicopter units to fire missiles at those suspected of illegal logging.  The Prime Minister made the remarks while inaugurating the new headquarters of Cambodia’s Ministry of Environment.  The World Resources Institute estimates that Cambodia had the highest increase in forest cover loss of any country in the world during the period 2001-2014.

New Fish Tracking Measures, Venezuela Boosts Gasoline Price, China Boosts Wind Energy, Impact of Scalia's Passing on Environmental Cases, Flint Lead Poisoning (by Bob Percival)

Congress, which has found it nearly impossible to agree on anything, passed legislation last week banning imports that are produced through slave labor.  The legislation was inspired by media reports of slave labor being used on fishing boats in Southeast Asia.  The National Oceanic and Atmospheric Administration is implementing new technology to track the source of fish imported into the U.S., which should make it easier to prevent the import of fish caught in violation of environmental regulations. Ian Urbina, U.S. Closing a Loophole on Products Tied to Slaves, N.Y. Times, Feb. 16, 2016.

On February 19, President Nicolás Maduro of Venezuela increased government-controlled gasoline prices in his reeling country by 1300% to the equivalent of 38 cents per gallon. Maria Eugenia Diaz & Nicholas Casey, Price of Gas in Venezuela Skyrockets (to 38 cents a gallon), N.Y. Times, Feb. 20, 2016, at A6.  Meanwhile Britain is slashing its subsidies for onshore wind energy, despite their success.  In 2006 only 1% of Britain’s energy was produced by wind; today 11% of Britain’s electricity is produced by wind.  Stanley Reed, Clean Power Muddied by Cheap Fuel, N.Y. Times, Feb. 20, 2016.

On February 16 China’s National Energy Administration announced that the country’s installed wind power capacity increased by 60 percent in 2015 to 32.97 gigawatts.  In 2015 wind power was responsible for 3.3% of China’s production of electricity.  Increases in wind power will be an important part of China’s efforts to increase the proportion of the country’s energy generated by non-fossil fuel sources from the current 11% to 20% by 2030.

Justice Antonin Scalia was buried on February 20 after a funeral mass at the Basilica of the National Shrine of the Immaculate Conception in Washington.  With the U.S. Supreme Court now having only eight Justices, it is possible for the Court to split 4-4.  If this happens, the decision it is reviewing is affirmed by an equally divided court.  In cases where the lower courts are split on the issue being reviewed by the Supreme Court, the 4-4 decision would not resolve the circuit split.  One such case is U.S. Army Corps of Engineers v. Hawkes, which will be argued before the Court on March 30.  The government lost in the 8th Circuit decision being reviewed by the Court, but other Circuits have ruled in favor of the government’s position that wetlands designations themselves do not trigger judicial review.  Legal challenges to the EPA’s “waters of the U.S” rule also may fall into this category, depending on rulings in the lower courts.  In cases where the circuits are split, it is possible that the Court would order rergument during the next Term in hopes that a ninth Justice will be confirmed by the Senate by then.  However, with the leaders of the Republican-controlled Senate refusing to consider confirmation of a new Justice until a new president is in office, it may be a long time before such issues are resolved.   

By contrast, because the Clean Air Act makes the U.S. Court of Appeals for the D.C. Circuit the exclusive venue for hearing challenges to nationally applicable regulations, a 4-4 decision by the Supreme Court would not preserve a lower court split, but rather simply affirm whatever ruling the D.C. Circuit reaches.  The same may be true in the Murr v. Wisconsin, a regulatory takings case involving the parcel-as-a-whole issue where there is no clear split in the courts below.  It also is possible that the eight Justice will try harder to avoid 4-4 splits, producing more 6-2 or 5-3 decisions with Justices Kennedy and/or Chief Justice Roberts splitting from the two conservatives (Thomas and Alito).  Justices Thomas and Alito have become vritually automatic votes against environmental regulation and are the only two Justices still seeking to overrule Massachusetts v. EPA, which confirmed EPA’s authority to regulate emissions of greenhouse gases under the Clean Air Act.

Last week the Sierra Club sued Devon Energy Production, Inc. and New Dominion LLC, accusing them of causing earthquakes in Oklahoma from the underground injection of wastewater from oil and gas operations.  The lawsuit claims that 5,800 earthquakes occurred in Oklahoma in 2015, a massive increase in frequency from previous decades.  Last week the Oklahoma Corporation Commission ordered 250 energy companies to reduce by 40% the amount of waste water they inject underground in an effort to reduce earthquakes believed to be caused by the practice.

Last week the online magazine Jurist published a piece I wrote about the lead poisoning of drinking water in Flint, Michigan.  The piece, which is entitled “The Poison Poor Children Drink: Six Lesson from the Flint Tragedy” (http://jurist.org/forum/2016/02/robert-percival-six-lessons.php) draws lessons from the history of regulation of lead in drinking water.  It takes its title from a column George Will wrote in 1982 (“The Poison Poor Children Breathe”) about the environmental justice implications of lead poisoning from gasoline lead additives.  My colleague Jane Barrett also published a piece about the possible criminal liability of officials whose actions contributed to the Flint tragedy.  Jane’s articel, "Will anyone be prosecuted in the Flint water crisis?" explores the very weak criminal provisions in the Safe Drinking Water Act https://theconversation.com/will-anyone-be-prosecuted-in-the-flint-water-crisis-54153.