From March 23-26 the American Society of International Law (ASIL) held its annual conference in Washington, D.C. Due to a host of other commitments I only was able to attend a few sessions on Friday March 25, but they were very worthwhile. I attended a great session on “Harmony and Dissonance in Extraterritorial Regulation,” followed by a terrific session on “International Law and Liability for Catastrophic Environmental Damage.” The speakers in the latter session included Tulio Treves from the International Tribunal for the Law of the Sea, Alan Boyle from Edinburgh University, Peter Sand from the University of Munich, Monika Hinteregger from the University of Graz, and Gunther Handl from Tulane University. The speakers were highly critical of the state o international law on liability for transboundary environmental harm, a subject on which I have been writing recently. Even though the nuclear accidents in Japan are commanding public headlines, the speakers focused largely on the BP oil spill in the Gulf of Mexico.
Treves noted that although the International Seabed Authority had not required a precautionary approach in its Regulations on Prospecting and Exploration for Polymetallic Nodules, it was now moving in that direction. Boyle observed that the International Court of Justice (ICJ) in its Pulp Mills decision established that the primary obligation of nations under international law in regulating private enterprises to prevent transboundary harm essentially is a due diligence requirement that does not make states guarantors against such harm. However, he concluded that in light of he extensive evidence of federal regulatory failures concerning deepwater drilling in the Gulf, the United States was extremely lucky that the spill was largely confined to U.S. waters. Handl noted that Mexican states have filed claims in Texas federal court for damages to fisheries and tourism due to the spill. He also noted that the U.S. was lucky that it was BP who was responsible for the spill, since many companies engaged in offshore drilling are thinly capitalized and would be unable to afford the level of compensation BP will have to pay. He noted that Indonesia has sued Australia over the Montara oil platform blowout in 2009 and that the International Maritime Organization (IMO) wants to negotiate a new international liability regime for oil spills. The speakers seemed to think that a new global liability regime was necessary, though they questioned whether the IMO is the appropriate organization for developing it.
When asked about the decades-long efforts by the International Law Commission (ILC) to formulate principles of international law applicable to transboundary environmental harm, the panelists noted that the ILC was deeply conservative and largely attempted to restate existing law without advancing liability standards. However, the ILC’s effort was helpful to the ICJ in its Gabcikova decision. Professor Hinteregger discussed the European Commission’s Directive 2004/35/CE on Environmental Liability. She argued that it turned out totally different from what initially was expected because it established a public law regime of liability rather than seeking to influence the development of private civil law. The directive is very limited, focusing on reimbursing states for costs they incur for preventive and remedial measures, while not developing the law applicable to compensation for harm to private parties. Peter Sand concluded the presentations by discussing the work of the United Nations Compensation Commission for Iraq’s invasion of Kuwait, noting that it had made the largest award for environmental harm that actually was paid - more than $5 billion. He emphasized that the Commission had been a pioneer in awarding damages for harm to ecosystem services.
On Wednesday March 23 Maryland’s Environmental Law Program held its Eighth Annual Environmental Law Film Awards Ceremony. The ceremony presented the coveted “Golden Tree” awards in ten categories to students who made films in my Environmental Law class last fall. The film “Silent Running,” a Lego-based animated remake of the 1972 first-ever environmental sci-fi film won awards for Best Picture, Best Use of Humor, and Best Special Effects. The film was made by law students Ovais Anwar, Becca Brown, Mike Spinelli, and Matt Standeven. Awards for Best Acting and Best Sound were given to the film “The Story of the Patapsco,” which examined the history of efforts to protect Maryland’s Patapsco River from pollution. The film was made by Luis Diaz, Andrew Goldman, Jacob Holtz, and Esther Houseman. The film “Don’t Jump in the Harbor” by Matt Peters and Christina Gubitosa won the award for Best Cinematography. The Golden Tree for Best Interviews went to “Go Beyond,” a film describing how a Baltimore couple became part of BP’s “Beyond Petroleum” advertising campaign. The film was made by Amalia Pleake-Tamm, Steven Isbister, and Peter Hogge. Since Peter is working in Maryland International Clinic in Namibia, the award ceremony was taped for him.
The Golden Tree award for Best Music went to the film “Trashy Mermaid,” made by Nathan Horne, Natasha Mehu, Emily Estrada, and Ajoke Agboola. The film used the theme song from “The Little Mermaid” to examine the dangers of plastic pollution in the oceans. The Golden Tree for Most Educational film went to Corin Vick’s “Geoengineering,” which explored engineering proposals to slow the pace of climate change. A Special Judge’s “Ken Burns” Award for Best Panning over Still Photos went to “Oysters in the Chesapeake Bay,” a film by Mike Adams, Hajrah Ahmad, Kasia Fertala, and Justine Moreau.
The Environmental Law Program is grateful to our independent panel of judges who voted on the Golden Tree awards. This year the panel consisted of Maryland Law faculty members Taunya Banks, Danielle Citron, Kathleen Dachille, and Kathy Vaughns, librarian Jill Smith, Yale World Fellow Kala Mulqueeny, Shanghai Roots and Shoots official Zhenxi Zhong, former Fulbright researcher Mary O’Laughlin, and youth judges Dominic Dachille and Richard Percival.
On Friday morning I attended a book launch at Resources for the Future for The Reality of Precaution, edited by Jonathan B. Wiener, Michael D. Rogers, James K. Hammitt, and Peter H. Sand. The book is the culmination of a decade-long project to assess whether European risk regulation is really more precautionary than U.S. regulation, as many people have argued. It presents numerous case studies of regulation on both sides of the Atlantic Ocean, and concludes that the evidence generally does not support the prevailing thesis. The book is a wonderfully valuable addition to the growing literature on global environmental law. I have argued that the precautionary principle is widely misunderstood by its critics (particularly Cass Sunstein) as requiring extreme levels of precaution when it actually says nothing about how precautionary regulatory policy should be. While this study’s thesis may seem to assume that Europe’s more explicit embrace of the principle should render its risk regulation policies more precautionary than such policies in the U.S., its conclusions seem to confirm my argument that this need not be the case.
Monday, March 28, 2011
Monday, March 21, 2011
Int'l Environmental Moot Court, WHO Asturias Conference, EPA Mercury Rule, Spanish Water Decision (by Bob Percival)
On March 18-20 the University of Maryland School of Law hosted the International Finals of the Stetson International Environmental Moot Court Competition. A total of 18 teams from 10 countries (Brazil, China, Ghana, India, Ireland, Phillippines, Trinidad, Ukraine,the United States, and Zimbabwe) qualified for the International Finals after regional competitions throughout the world. After Friday’s competition eight teams advanced to the quarterfinals on Sunday March 20: two teams from the Law Society of Ireland, the University of the Phillippines College of Law and the Ateneo de Manila School of Law from the Phillippines, the National University of Advanced Legal Studies from India, the High Wooding Law School from Trinidad, the University of Hawaii William S. Richardson School of Law, and the University of California Hastings College of Law.
Advancing to the semifinals were one team from the Law Society of Ireland and teams from Hawaii, Trinidad, and the University of the Phillippines. The final round featured the University of Hawaii against the Law Society of Ireland. Judges for the final round included Rock Pring from the University of Denver School of Law, Tim Sellers, director of the Center for International and Comparative Law at the University of Baltimore, and Tseming Yang from the U.S. Environmental Protection Agency. For the second time in three years the winner of the competition was the Law Society of Ireland. Laura Allen from the University of Hawaii won the award for best oralist in the final round.
The team from Atenco de Manila won the award for best memorial for the second year in a row. Lance Cidre from Hasting won the award for Best Oralist of the Preliminary Rounds. The most inspirational story of the competition was the University of Zimbabwe, which won the Spirit of Stetson Award. Prior to the competition, the team members had never studied international law or environmental law. They initially tried to raise the funds to finance their trip through collecting small donations on street corners. Just when it looked like this effort would fall short, the publicity it received convinced a local corporation to make a last minute contribution that allowed the team to come to Maryland.
After five terrific days of vacation in Rome, my wife flew home on Wednesday while I flew to Spain to speak at a World Health Organization (WHO) Conference on “Environmental and Occupational Determinants of Cancer: Interventions for Primary Prevention.” The conference, which was held in the Asturias area of northwestern Spain was organized by Maria Neira, director of the Public Health and Environment Division of the WHO. The conference featured nearly 100 scientists, health journalists and NGO officials from 21 countries as well as a dozen WHO officials. I apparently was the only law professor invited to speak at the conference. On Thursday the conference opened at the spectacular new International Art Centre Oscar Niemeyer in Avilés, on which construction is still being finished. A huge press contingent attended drawn by the presence of Princess Letizia of Spain. Following the opening ceremonies, the conference speakers had an audience with the Princess and I was able to meet her and speak briefly with her. Local participants in the conferences were uniform in their praise of the Spanish royal family for helping hold the country together and for supporting causes such as cancer prevention through environmental regulation.
The conference marked the launch of a new WHO initiative to focus on primary prevention of cancer by controlling human exposure to toxic agents. Despite bans on the use of asbestos in most of the developed world, asbestos use actually is increasing in developing countries such as China and India. The power of global NGO networks to expose such practices in developing countries has forced all major multinational corporations out of the asbestos business, but it is still yielding windfall profits to less well known companies. Shockingly, Canada is considering reopening an old asbestos mine to export more of this deadly product to poor countries.
On Friday the conference was held at the Laboral City of Culture in Gijon, an impressive setting that formerly had served as the Franco government’s school for the children of laborers. I spoke about what the WHO should do to promote improved global environmental regulation to prevent human exposure to carcinogens. The conference concluded with the participants agreeing to The Asturias Call for Action, which was drafted in large part through the efforts of Dr. Philip Landrigan, the dean for global health at the Mt. Sinai School of Medicine in New York. The final version of this document is not online yet, but a press release describing the Call for Action is online at: http://www.who.int/phe/news/events/international_conference/PR_cancer_conf2011_en.pdf
I was supposed to return to the United States on Saturday to speak on a panel at the International Environmental Moot Court Competition and then to judge the quarterfinal round on Sunday morning. Unfortunately, after sitting for three hours on a plane awaiting takeoff at Madrid’s Barajas Airport on Saturday morning, my flight was canceled when repairs could not be completed in a timely fashion. That meant that I was unable to return to the U.S. until after the competition was completed on Sunday afternoon. I am so appreciative of the work of Suzann Langrall, David Mandell, William Piermattei, and Karla Schaffer in making the competition such a great success. On Friday night at the annual Fedder Dinner, Maryland law professor Rena Steinzor introduced Joel Fedder, whose generosity helped make Maryland’s hosting of the competition possible. Rock and Kitty Pring gave the annual Fedder lecture. Sunday was Karla Schaffer’s birthday and she was presented with a cake and flowers and then serenaded with “Happy Birthday” by the competitors in five different languages (English, Chinese, Portuguese, Russian, and Shonu (by Team Zimbabwe)). An after-competition party was organized at a local pub by the Brazilian delegation. Despite not advancing to the quarterfinals, the students were so enthusiastic about the competition that the vowed to encourage more Chinese schools to participate in a new regional competition next year.
On March 16 the U.S. Environmental Protection Agency (EPA) proposed national standards to limit emissions of mercury, arsenic and other toxic pollutants from U.S. power plants. EPA estimates that the standards will save 17,000 lives each year while preventing 11,000 heart attacks annually. While compliance with the standards will be costly, EPA estimates that they will generate net benefits five to 13 times their cost. Details of the proposal are available online at: http://www.epa.gov/hg/. EPA’s action is an historic step in the regulation of mercury emissions from U.S. powerplants. However, because nearly 30 percent of all mercury in the U.S. originates in Asia, predominantly from Chinese coal-fired powerplants, it also will be essential to negotiate a global treaty to achieve progress in reducing human exposure to mercury.
Spain’s Constitutional Court has struck down statutes in Andalusia and Castilla y Léon that gave the regions’ governments control over the Guadalquivir River and the Duero River, respectively. The court ruled that Article 149 of the Spanish Constitution trumped the laws by giving exclusive control over hydrological resources that pass through more than one region to the central government. The decision represents a sharp challenge to efforts by Spain’s regional governments to resist the European Union’s efforts to manage each river basin as a single unit. “A Watershed Decision,” El País, March 19, 2011 (English edition), at p. 2.
Advancing to the semifinals were one team from the Law Society of Ireland and teams from Hawaii, Trinidad, and the University of the Phillippines. The final round featured the University of Hawaii against the Law Society of Ireland. Judges for the final round included Rock Pring from the University of Denver School of Law, Tim Sellers, director of the Center for International and Comparative Law at the University of Baltimore, and Tseming Yang from the U.S. Environmental Protection Agency. For the second time in three years the winner of the competition was the Law Society of Ireland. Laura Allen from the University of Hawaii won the award for best oralist in the final round.
The team from Atenco de Manila won the award for best memorial for the second year in a row. Lance Cidre from Hasting won the award for Best Oralist of the Preliminary Rounds. The most inspirational story of the competition was the University of Zimbabwe, which won the Spirit of Stetson Award. Prior to the competition, the team members had never studied international law or environmental law. They initially tried to raise the funds to finance their trip through collecting small donations on street corners. Just when it looked like this effort would fall short, the publicity it received convinced a local corporation to make a last minute contribution that allowed the team to come to Maryland.
After five terrific days of vacation in Rome, my wife flew home on Wednesday while I flew to Spain to speak at a World Health Organization (WHO) Conference on “Environmental and Occupational Determinants of Cancer: Interventions for Primary Prevention.” The conference, which was held in the Asturias area of northwestern Spain was organized by Maria Neira, director of the Public Health and Environment Division of the WHO. The conference featured nearly 100 scientists, health journalists and NGO officials from 21 countries as well as a dozen WHO officials. I apparently was the only law professor invited to speak at the conference. On Thursday the conference opened at the spectacular new International Art Centre Oscar Niemeyer in Avilés, on which construction is still being finished. A huge press contingent attended drawn by the presence of Princess Letizia of Spain. Following the opening ceremonies, the conference speakers had an audience with the Princess and I was able to meet her and speak briefly with her. Local participants in the conferences were uniform in their praise of the Spanish royal family for helping hold the country together and for supporting causes such as cancer prevention through environmental regulation.
The conference marked the launch of a new WHO initiative to focus on primary prevention of cancer by controlling human exposure to toxic agents. Despite bans on the use of asbestos in most of the developed world, asbestos use actually is increasing in developing countries such as China and India. The power of global NGO networks to expose such practices in developing countries has forced all major multinational corporations out of the asbestos business, but it is still yielding windfall profits to less well known companies. Shockingly, Canada is considering reopening an old asbestos mine to export more of this deadly product to poor countries.
On Friday the conference was held at the Laboral City of Culture in Gijon, an impressive setting that formerly had served as the Franco government’s school for the children of laborers. I spoke about what the WHO should do to promote improved global environmental regulation to prevent human exposure to carcinogens. The conference concluded with the participants agreeing to The Asturias Call for Action, which was drafted in large part through the efforts of Dr. Philip Landrigan, the dean for global health at the Mt. Sinai School of Medicine in New York. The final version of this document is not online yet, but a press release describing the Call for Action is online at: http://www.who.int/phe/news/events/international_conference/PR_cancer_conf2011_en.pdf
I was supposed to return to the United States on Saturday to speak on a panel at the International Environmental Moot Court Competition and then to judge the quarterfinal round on Sunday morning. Unfortunately, after sitting for three hours on a plane awaiting takeoff at Madrid’s Barajas Airport on Saturday morning, my flight was canceled when repairs could not be completed in a timely fashion. That meant that I was unable to return to the U.S. until after the competition was completed on Sunday afternoon. I am so appreciative of the work of Suzann Langrall, David Mandell, William Piermattei, and Karla Schaffer in making the competition such a great success. On Friday night at the annual Fedder Dinner, Maryland law professor Rena Steinzor introduced Joel Fedder, whose generosity helped make Maryland’s hosting of the competition possible. Rock and Kitty Pring gave the annual Fedder lecture. Sunday was Karla Schaffer’s birthday and she was presented with a cake and flowers and then serenaded with “Happy Birthday” by the competitors in five different languages (English, Chinese, Portuguese, Russian, and Shonu (by Team Zimbabwe)). An after-competition party was organized at a local pub by the Brazilian delegation. Despite not advancing to the quarterfinals, the students were so enthusiastic about the competition that the vowed to encourage more Chinese schools to participate in a new regional competition next year.
On March 16 the U.S. Environmental Protection Agency (EPA) proposed national standards to limit emissions of mercury, arsenic and other toxic pollutants from U.S. power plants. EPA estimates that the standards will save 17,000 lives each year while preventing 11,000 heart attacks annually. While compliance with the standards will be costly, EPA estimates that they will generate net benefits five to 13 times their cost. Details of the proposal are available online at: http://www.epa.gov/hg/. EPA’s action is an historic step in the regulation of mercury emissions from U.S. powerplants. However, because nearly 30 percent of all mercury in the U.S. originates in Asia, predominantly from Chinese coal-fired powerplants, it also will be essential to negotiate a global treaty to achieve progress in reducing human exposure to mercury.
Spain’s Constitutional Court has struck down statutes in Andalusia and Castilla y Léon that gave the regions’ governments control over the Guadalquivir River and the Duero River, respectively. The court ruled that Article 149 of the Spanish Constitution trumped the laws by giving exclusive control over hydrological resources that pass through more than one region to the central government. The decision represents a sharp challenge to efforts by Spain’s regional governments to resist the European Union’s efforts to manage each river basin as a single unit. “A Watershed Decision,” El País, March 19, 2011 (English edition), at p. 2.
Monday, March 14, 2011
Japan Earthquake, Tsunami & Nuclear Accidents; Chevron Wins Ecuador Injunction, House Climate Vote, Exxon Blames BP, China Forum (by Bob Percival)
On Friday March 11 the largest earthquake ever to strike Japan, registering 8.9 on the Richter scale, triggered a massive tsunami that hit the northern coast of Japan, killing thousands and disabling cooling systems at nuclear power plants located along the coast. The quake moved Japan’s main island of Honshu eight feet eastward, shifted the earth’s axis nearly four inches, and sped up the earth’s rotation by 1.5 microseconds. The epicenter of the quake was 80 miles east of the town of Sendai, Japan, which was devastated by the tsunami. Japanese authorities are struggling to contain nuclear reactors whose cooling systems failed at the Fukushima Daiichi Nuclear Power Station. Fearing partial meltdowns of their nuclear fuel, authorities injected seawater mixed with boron in desperate attempts to cool the reactors, but two explosions released some radiation. The disaster is Japan’s greatest tragedy since World War II and the world’s worst nuclear accident since Chernobyl. It ultimately may slow plans to resume building new nuclear power plants in the U.S., which had been part of the Obama administration’s energy strategy to combat climate change.
On Monday March 7 the Chevron Corporation obtained a preliminary injunction from a federal district court in New York barring the enforcement of the $8.6 billion judgment against the corporation for polluting the Oriente region of Ecuador. Judge Lewis A. Kaplan ruled that there was "ample evidence of fraud in the Ecuadorean proceedings" and "abundant evidence . . . that Ecuador has not provided impartial tribunals or procedures compatible with due process of law." He cited a report from a legal expert commissioned by Chevron that the judiciary in Ecuador is subject to political pressure from the government and that Ecuador ranks among the lowest nations in assessments of the strength of the rule of law. Luis Gallegos, Ecuador’s ambassador to the United States, defended the country’s judicial system and expressed "consternation that a U.S. court has elected to pass judgment on Ecuador's courts." Lawrence Hurley, Ecuador’s U.S. Ambassador Speaks Out on Chevron Case, New York Times, March 10, 2011.
On March 10 the Republican-controlled House Energy and Commerce Committee gave preliminary approval to legislation that seeks to revoke EPA’s endangerment finding for emissions of greenhouse gases (GHGs) and that prohibits EPA from regulating them under the Clean Air Act. At the committee hearing, Democratic Congressman Ed Markey denounced the committee’s proposed action by stating: “Mr. Chairman, I rise in opposition to a bill that overturns the scientific finding that pollution is harming our people and our planet. However, I won’t physically rise, because I’m worried that Republicans will overturn the law of gravity, sending us floating about the room. I won’t call for the sunlight of additional hearings, for fear that Republicans might excommunicate the finding that the Earth revolves around the sun.”
In a meeting with Wall Street analysts last week, ExxonMobil CEO Rex Tillerson rejected the notion that the oil industry needs to reassess the safety of its deepwater drilling operations as recommended by the President’s oil spill commission. Tillerson argued that the Deepwater Horion blowout and subsequent Gulf oil spill was solely the result of management failures by BP. On Monday March 7, Alaska federal district judge Russel Holland rejected an effort by environmental activist Rick Steiner to reopen the Exxon Valdez settlement agreement, concluding that it was up to the state and federal governments to seek such a reopener if they believe that damage from the spill is continuing in ways not covered by the agreement. The judge ordered the governments to study continue harm from the spill and to report back to him by September 15.
On Wednesday March 9, several of China’s top environmental law professors appeared at a program at the Wilson Center in Washington, D.C. to discuss “Green Governance Victories and Ongoing Challenges in China.” The professors included Wang Canfa from the China University of Political Science and Law (CUPL), Li Yanfang from Renmin University School of Law, Li Zhiping from Sun Yat-sen Law School and Yu Wenxuan from CUPL. I attended the program with six of the students from my Global Environmental Law seminar. The professors expressed considerable optimism about developments in Chinese environmental law, including the government’s new Five Year Plan that makes environmental protection and responding to climate change major priorities. Several agreed that a “tipping point” had been reached in which sustainable development was now an important priority of the central government. On Thursday Professor Yu visited the University of Maryland School of Law and attended one of my classes before flying back to Vermont where he is a visiting professor this year.
On Thursday evening I flew to Rome for a spring break vacation with my wife. Rome is an amazing city with clean spring water provided from public outlets, though efforts to green the city by creating bike lanes have had only partial success, something locals attribute to the global economic downturn. Photos of the trip may be viewed online at: http://gallery.me.com/rperci/100799. Before returning to the U.S. later this week I will stop in Spain to participate in a World Health Organization Conference on prevention of environmentally-induced cancer. I will arrive back in the U.S. on Saturday in time to help judge the quarterfinal round of the Stetson International Environmental Moot Court Competition that Maryland is hosting for the first time.
On Monday March 7 the Chevron Corporation obtained a preliminary injunction from a federal district court in New York barring the enforcement of the $8.6 billion judgment against the corporation for polluting the Oriente region of Ecuador. Judge Lewis A. Kaplan ruled that there was "ample evidence of fraud in the Ecuadorean proceedings" and "abundant evidence . . . that Ecuador has not provided impartial tribunals or procedures compatible with due process of law." He cited a report from a legal expert commissioned by Chevron that the judiciary in Ecuador is subject to political pressure from the government and that Ecuador ranks among the lowest nations in assessments of the strength of the rule of law. Luis Gallegos, Ecuador’s ambassador to the United States, defended the country’s judicial system and expressed "consternation that a U.S. court has elected to pass judgment on Ecuador's courts." Lawrence Hurley, Ecuador’s U.S. Ambassador Speaks Out on Chevron Case, New York Times, March 10, 2011.
On March 10 the Republican-controlled House Energy and Commerce Committee gave preliminary approval to legislation that seeks to revoke EPA’s endangerment finding for emissions of greenhouse gases (GHGs) and that prohibits EPA from regulating them under the Clean Air Act. At the committee hearing, Democratic Congressman Ed Markey denounced the committee’s proposed action by stating: “Mr. Chairman, I rise in opposition to a bill that overturns the scientific finding that pollution is harming our people and our planet. However, I won’t physically rise, because I’m worried that Republicans will overturn the law of gravity, sending us floating about the room. I won’t call for the sunlight of additional hearings, for fear that Republicans might excommunicate the finding that the Earth revolves around the sun.”
In a meeting with Wall Street analysts last week, ExxonMobil CEO Rex Tillerson rejected the notion that the oil industry needs to reassess the safety of its deepwater drilling operations as recommended by the President’s oil spill commission. Tillerson argued that the Deepwater Horion blowout and subsequent Gulf oil spill was solely the result of management failures by BP. On Monday March 7, Alaska federal district judge Russel Holland rejected an effort by environmental activist Rick Steiner to reopen the Exxon Valdez settlement agreement, concluding that it was up to the state and federal governments to seek such a reopener if they believe that damage from the spill is continuing in ways not covered by the agreement. The judge ordered the governments to study continue harm from the spill and to report back to him by September 15.
On Wednesday March 9, several of China’s top environmental law professors appeared at a program at the Wilson Center in Washington, D.C. to discuss “Green Governance Victories and Ongoing Challenges in China.” The professors included Wang Canfa from the China University of Political Science and Law (CUPL), Li Yanfang from Renmin University School of Law, Li Zhiping from Sun Yat-sen Law School and Yu Wenxuan from CUPL. I attended the program with six of the students from my Global Environmental Law seminar. The professors expressed considerable optimism about developments in Chinese environmental law, including the government’s new Five Year Plan that makes environmental protection and responding to climate change major priorities. Several agreed that a “tipping point” had been reached in which sustainable development was now an important priority of the central government. On Thursday Professor Yu visited the University of Maryland School of Law and attended one of my classes before flying back to Vermont where he is a visiting professor this year.
On Thursday evening I flew to Rome for a spring break vacation with my wife. Rome is an amazing city with clean spring water provided from public outlets, though efforts to green the city by creating bike lanes have had only partial success, something locals attribute to the global economic downturn. Photos of the trip may be viewed online at: http://gallery.me.com/rperci/100799. Before returning to the U.S. later this week I will stop in Spain to participate in a World Health Organization Conference on prevention of environmentally-induced cancer. I will arrive back in the U.S. on Saturday in time to help judge the quarterfinal round of the Stetson International Environmental Moot Court Competition that Maryland is hosting for the first time.
Monday, March 7, 2011
Vermont China Conference, Regulation of “Fracking”, Lease Sale Protester Convicted, Exxon Valdez Reopener, LIbya (by Bob Percival)
On Tuesday March 1 I flew from Washington to Vermont to participate in Vermont Law School’s conference on “China’s Environmental Governance: Global Challenges and Comparative Solutions.” The conference, which was held on Wednesday March 2, featured China’s top environmental law professors, including Wang Canfa of the China University of Political Science and Law (CUPL), Li Yanfang of Renmin University, and Li Zhiping of Sun Yat Sen University. Zhang Jingjing, from the Public Interest Law Net Beijing’s office, also spoke at the conference. The Chinese professors reported on recent developments in environmental law in China, including the development of environmental courts, the first successful suit by a federation of Chinese environmental lawyers, and controversy over the use of civil suits by the Chinese procurate, public prosecutors who traditionally focus on criminal actions.
Other U.S. professors participating in the symposium included Pat Parenteau from Vermont, who gave a terrific talk on the state of environmental enforcement in the U.S., Patricia McCubbin, who spoke about EPA’s efforts to regulate greenhouse gas (GHG) emissions, and Jon Nagle who explored “how much should China pollute. “ Judge Meredith Wright described her work as the first judge on Vermont’s environmental court and Jennifer Turner of the Wilson Center gave a fascinating presentation linking Chinese energy development to increasing pressures on Chinese water supplies. I spoke on how globalization is affecting Chinese environmental policy, including actions by Chinese NGOs to “green” the supply chains of multinationals, and I warned that Chinese companies extracting resources from developing countries should learn from transnational liability litigation like the long-running lawsuit against Chevron for pollution in the Oriente region of Ecuador. Papers prepared for the symposium will be published in the Vermont Journal of Environmental Law. The Chinese professors are now in Washington where they will be featured at a program sponsored by the Wilson Center’s China Environment Forum on “Green Governance Victories and Ongoing Challenges in China” on Wednesday morning March 9 (see http://www.wilsoncenter.org/index.cfm?topic_id=1421&fuseaction=topics.home).
As the use of hydraulic fracturing to extract oil and natural gas continues to grow, see Sheila McNulty & Ed Crooks, U.S. Groups Unlock Secret Recipe for Oil, Financial Times, March 4, 2011, at 5, the New York Times explored why the practice has been largely exempted from U.S. environmental laws. Ian Urbina, Pressure Stifles Efforts to Police Drilling for Gas, New York Times, March 3, 2011, at A1. The article alleged that political pressure during previous administrations had forced EPA to limit studies that might have exposed environmental hazards from the increasingly popular drilling practice. It alleged that conflicts are now occurring between EPA and state environmental officials in Pennsylvania where “fracking” has been widely permitted despite EPA concern that disposal of untreated waste generated by the practice violates the Clean Water Act. On Friday Arkansas authorities ordered two companies temporarily to stop the practice of injecting wastewater generated by hydraulic fracturing into deep underground wells following a recent cluster of earthquakes in the areas. Daniel Gilbert, Arkansas Shutters Two Wells in Area of Quakes, Wall St. J., March 5-6, 2011, at A4. With so much at stake economically and environmentally, it would behoove companies using fracking to produce natural gas not to blindly oppose all precautionary measures to ensure that the practice does not cause unnecessry harm. See Christopher Swann, Address the Fears on “Fracking”, New York Times, March 7, 2011, at B2.
On March 3 a federal court jury in Utah convicted Tim DeChristopher on two counts of illegally disrupting a federal auction of public lands for oil drilling during the last days of the George W. Bush administration (see blog post on January 23, 2009). Judge Dee Benson prohibited the defense from telling the jury that DeChristopher had bid on the leases in order to block what he believed to be illegal and environmentally damaging lease sales rushed to auction prior to the Obama administration taking office. DeChristopher, who rejected a plea bargain, now faces up to five years in prison on each count. Kirk Johnson, Utah Man Convicted in Fraud at 2008 Energy Auction, New York Times, March 4, 2001, at A15.
On Friday March 4 a federal judge in Alaska conducted a hearing on whether a reopener provision in a settlement agreement over the 1989 Exxon Valdez oil spill should be invoked to require ExxonMobil to pay an additional $92 million for continuing environmental damage and to repay a $125 million criminal fine previously returned to the company. William Yardley, 22 Years Later, the Exxon Valdez Case Is Back in Court, New York Times, March 4, 2011, at A15. The hearing is being held at the request of marine biologist Rick Steiner.
With violence continuing in Libya as Colonel Muammar Gaddafi seeks to repress a major rebellion, significant legal questions are arising concerning who should be paid for exports of Libyan oil and investments by the country’s $70 billion sovereign wealth fund. Landon Thomas, Jr. Libya’s Hidden Wealth May Be Next Battle, New York Times, March 4, 2011, at B1. Libya’s former Justice Minister, who has joined the rebels, alleges that Colonel Gaddafi personally ordered the bombing of Pan Am Flight #103 that exploded over Lockerbie, Scotland on December 21, 1988, killing 270 passengers. The only person held accountable for the bombing, Abdel Basset Ali al-Megrahi, was released from serving a life sentence in a Scottish prison in August 2009, on the ground that he was near death from cancer. Aside from the release making a mockery of the concept of a life sentence, the fact that Megrahi remains very much alive in Libya more than a year and a half later, must be a source of unbelievable angst for the victims‘ families. Clyde Haberman, Viewing Libya through Prism of Lockerbie, New York Times, March 4, 2011, at A20. As surprising as the unrest sweeping the Middle East may be to many, in retrospect it seems incredible that rulers like Gaddafi have been managed to remain in power for so long.
On Friday I flew to Florida with my daughter to watch spring training for the Washington Nationals baseball team. On Saturday March 5 we watched the Nats beat the Yankees 10-8 in a game on the Yankees home turf in Tampa. On Sunday we saw the Braves beat the Nats 5-0. A photo gallery from spring training has been posted online at: http://gallery.me.com/rperci#100786.
Other U.S. professors participating in the symposium included Pat Parenteau from Vermont, who gave a terrific talk on the state of environmental enforcement in the U.S., Patricia McCubbin, who spoke about EPA’s efforts to regulate greenhouse gas (GHG) emissions, and Jon Nagle who explored “how much should China pollute. “ Judge Meredith Wright described her work as the first judge on Vermont’s environmental court and Jennifer Turner of the Wilson Center gave a fascinating presentation linking Chinese energy development to increasing pressures on Chinese water supplies. I spoke on how globalization is affecting Chinese environmental policy, including actions by Chinese NGOs to “green” the supply chains of multinationals, and I warned that Chinese companies extracting resources from developing countries should learn from transnational liability litigation like the long-running lawsuit against Chevron for pollution in the Oriente region of Ecuador. Papers prepared for the symposium will be published in the Vermont Journal of Environmental Law. The Chinese professors are now in Washington where they will be featured at a program sponsored by the Wilson Center’s China Environment Forum on “Green Governance Victories and Ongoing Challenges in China” on Wednesday morning March 9 (see http://www.wilsoncenter.org/index.cfm?topic_id=1421&fuseaction=topics.home).
As the use of hydraulic fracturing to extract oil and natural gas continues to grow, see Sheila McNulty & Ed Crooks, U.S. Groups Unlock Secret Recipe for Oil, Financial Times, March 4, 2011, at 5, the New York Times explored why the practice has been largely exempted from U.S. environmental laws. Ian Urbina, Pressure Stifles Efforts to Police Drilling for Gas, New York Times, March 3, 2011, at A1. The article alleged that political pressure during previous administrations had forced EPA to limit studies that might have exposed environmental hazards from the increasingly popular drilling practice. It alleged that conflicts are now occurring between EPA and state environmental officials in Pennsylvania where “fracking” has been widely permitted despite EPA concern that disposal of untreated waste generated by the practice violates the Clean Water Act. On Friday Arkansas authorities ordered two companies temporarily to stop the practice of injecting wastewater generated by hydraulic fracturing into deep underground wells following a recent cluster of earthquakes in the areas. Daniel Gilbert, Arkansas Shutters Two Wells in Area of Quakes, Wall St. J., March 5-6, 2011, at A4. With so much at stake economically and environmentally, it would behoove companies using fracking to produce natural gas not to blindly oppose all precautionary measures to ensure that the practice does not cause unnecessry harm. See Christopher Swann, Address the Fears on “Fracking”, New York Times, March 7, 2011, at B2.
On March 3 a federal court jury in Utah convicted Tim DeChristopher on two counts of illegally disrupting a federal auction of public lands for oil drilling during the last days of the George W. Bush administration (see blog post on January 23, 2009). Judge Dee Benson prohibited the defense from telling the jury that DeChristopher had bid on the leases in order to block what he believed to be illegal and environmentally damaging lease sales rushed to auction prior to the Obama administration taking office. DeChristopher, who rejected a plea bargain, now faces up to five years in prison on each count. Kirk Johnson, Utah Man Convicted in Fraud at 2008 Energy Auction, New York Times, March 4, 2001, at A15.
On Friday March 4 a federal judge in Alaska conducted a hearing on whether a reopener provision in a settlement agreement over the 1989 Exxon Valdez oil spill should be invoked to require ExxonMobil to pay an additional $92 million for continuing environmental damage and to repay a $125 million criminal fine previously returned to the company. William Yardley, 22 Years Later, the Exxon Valdez Case Is Back in Court, New York Times, March 4, 2011, at A15. The hearing is being held at the request of marine biologist Rick Steiner.
With violence continuing in Libya as Colonel Muammar Gaddafi seeks to repress a major rebellion, significant legal questions are arising concerning who should be paid for exports of Libyan oil and investments by the country’s $70 billion sovereign wealth fund. Landon Thomas, Jr. Libya’s Hidden Wealth May Be Next Battle, New York Times, March 4, 2011, at B1. Libya’s former Justice Minister, who has joined the rebels, alleges that Colonel Gaddafi personally ordered the bombing of Pan Am Flight #103 that exploded over Lockerbie, Scotland on December 21, 1988, killing 270 passengers. The only person held accountable for the bombing, Abdel Basset Ali al-Megrahi, was released from serving a life sentence in a Scottish prison in August 2009, on the ground that he was near death from cancer. Aside from the release making a mockery of the concept of a life sentence, the fact that Megrahi remains very much alive in Libya more than a year and a half later, must be a source of unbelievable angst for the victims‘ families. Clyde Haberman, Viewing Libya through Prism of Lockerbie, New York Times, March 4, 2011, at A20. As surprising as the unrest sweeping the Middle East may be to many, in retrospect it seems incredible that rulers like Gaddafi have been managed to remain in power for so long.
On Friday I flew to Florida with my daughter to watch spring training for the Washington Nationals baseball team. On Saturday March 5 we watched the Nats beat the Yankees 10-8 in a game on the Yankees home turf in Tampa. On Sunday we saw the Braves beat the Nats 5-0. A photo gallery from spring training has been posted online at: http://gallery.me.com/rperci#100786.
Monday, February 28, 2011
Global Law Conference, China's Historic UN Vote, Spanish Speed Limit, Oil Drilling in Congo Park, Walmart Bans PBDEs & GM Plantings (by Bob Percival)
On Friday February 25 I spoke at a symposium on “Global Law and its Exceptions” at the University of Washington School of Law in Seattle. The conference featured a terrific group of speakers who explored how global law is evolving in several fields, including constitutional law, corporate law, environmental law, administrative law, human rights, and family law. The symposium agenda is online at: https://www.law.washington.edu/cle/seminars/Global/agenda.pdf. I gave a presentation on “Global Law and the Environment,” and Professor Bill Rodgers responded to my presentation. The symposium was the brainchild of Professor Joel Ngugi who did an excellent job of framing the issues for discussion by proposing four ways to think about global law: legal harmonization, the transplant thesis (countries have always “borrowed” law from one another), the resistance thesis (that what’s happening is pernicious and should be resisted), and the emancipation thesis (that law is malleable and can be used for many ends).
Duncan Kennedy of Harvard then gave a keynote presentation. David Law of Washington University in St. Louis made a terrific presentation on global constitutional law, noting the high degree of borrowing in constitutional language (90 percent of constitutions have the same 9 rights and 70 percent the same 25 rights). He disputed the notion that Supreme Court judges from different countries are engaged in a cross-national “dialogue” and argued that citation of foreign sources by courts was largely a function of the extent to which judges had been trained in comparative law. Professor Frank Gevurtz of McGeorge expressed skepticism about global law, arguing that legal convergence occurs in cycles over time as corporate law tracks whatever fad is in vogue. There was a terrific audience of nearly 200, consisting mostly of lawyers, who generated a lively dialogue following the presentations. Papers prepared for the conference will be published in a symposium edition of the University of Washington Law Review. The University of Washington School of Law has a required first year course in Comparative and International Law.
The continued turmoil in Northern Africa and the Middle East is posing an immense challenge to global foreign policy. The unanimous vote by the United Nations Security Council to impose sanctions on Libyan leader Moammar Gadhafi and to refer his brutal repression of protests to the International Criminal Court represents an historic vote by China in favor of sanctions on another country for suppressing dissent. It is estimated that China has 30,000 citizens in Libya, which supplies 3 percent of China’s imports of oil. The temporary surge in oil prices last week that followed the shutdown of oil supplies from Libya spurred the government of Spain to lower that country’s national speed limit from 120 km/hour to 110 km/hour (from 74 to 68 miles per hours) in order to conserve gasoline.
A group of 41 members of the Parliament in the Democratic Republic of the Congo (DRC) are asking the government to redraw the boundaries of Africa’s oldest national park to permit oil exploration activities there. Virunga National Park is a World Heritage Site that is home to some of the famous mountain gorillas. But after Tullow Oil, a British company, discovered oil just west of the park in Uganda, Soco International and Dominion Petroleum have been pressing the DRC to grant them permission to drill in the park. Katrina Manson, Battle Over Oil in Congo National Park, Financial Times, Feb. 21, 2011.
Walmart continues to use its market power over suppliers to promote greener products. The company recently informed its suppliers that it would begin testing on June 1 to ensure that the products it carries do not contain polybrominated diphenyl ethers (PBDEs), a class of chemicals widely used as a flame retardant in a wide variety of products. Even though use of the chemical remains legal in the United States, studies have linked it to a variety of health problems. Last year EPA listed PDBEs as “chemicals of concern,” but it will take some time before the agency is able to regulate them, making Walmart’s action another example of voluntary private action to reduce risks to consumers. Lyndsey Layton, Wal-Mart Turns to “Retail Regulation” to Ban Flame Retardant, Washington Post, Feb. 27, 2011, at A4.
The Financial Times reported today that the size of land throughout the world planted with genetically modified (GM) crops increased by 10% in 2010 to 148 million hectares. This means that approximately 10 percent of all global cropland is now planted with genetically modified crops. Last year’s growth in GM crops represented the second largest growth since their commercial introduction in 1996.
My visit to Seattle coincide with that city’s lowest temperatures on record for this time of year. But I was delighted to get a chance to visit my brother and his family and to discover a wonderful boutique winery run by a lawyer that is making some of the best cabernets in Washington state. Tomorrow I am flying to Vermont to participate in Vermont Law School’s symposium on China’s Environmental Governance. I am looking forward to being reunited with China’s top environmental law scholars who will be participating in the symposium.
Duncan Kennedy of Harvard then gave a keynote presentation. David Law of Washington University in St. Louis made a terrific presentation on global constitutional law, noting the high degree of borrowing in constitutional language (90 percent of constitutions have the same 9 rights and 70 percent the same 25 rights). He disputed the notion that Supreme Court judges from different countries are engaged in a cross-national “dialogue” and argued that citation of foreign sources by courts was largely a function of the extent to which judges had been trained in comparative law. Professor Frank Gevurtz of McGeorge expressed skepticism about global law, arguing that legal convergence occurs in cycles over time as corporate law tracks whatever fad is in vogue. There was a terrific audience of nearly 200, consisting mostly of lawyers, who generated a lively dialogue following the presentations. Papers prepared for the conference will be published in a symposium edition of the University of Washington Law Review. The University of Washington School of Law has a required first year course in Comparative and International Law.
The continued turmoil in Northern Africa and the Middle East is posing an immense challenge to global foreign policy. The unanimous vote by the United Nations Security Council to impose sanctions on Libyan leader Moammar Gadhafi and to refer his brutal repression of protests to the International Criminal Court represents an historic vote by China in favor of sanctions on another country for suppressing dissent. It is estimated that China has 30,000 citizens in Libya, which supplies 3 percent of China’s imports of oil. The temporary surge in oil prices last week that followed the shutdown of oil supplies from Libya spurred the government of Spain to lower that country’s national speed limit from 120 km/hour to 110 km/hour (from 74 to 68 miles per hours) in order to conserve gasoline.
A group of 41 members of the Parliament in the Democratic Republic of the Congo (DRC) are asking the government to redraw the boundaries of Africa’s oldest national park to permit oil exploration activities there. Virunga National Park is a World Heritage Site that is home to some of the famous mountain gorillas. But after Tullow Oil, a British company, discovered oil just west of the park in Uganda, Soco International and Dominion Petroleum have been pressing the DRC to grant them permission to drill in the park. Katrina Manson, Battle Over Oil in Congo National Park, Financial Times, Feb. 21, 2011.
Walmart continues to use its market power over suppliers to promote greener products. The company recently informed its suppliers that it would begin testing on June 1 to ensure that the products it carries do not contain polybrominated diphenyl ethers (PBDEs), a class of chemicals widely used as a flame retardant in a wide variety of products. Even though use of the chemical remains legal in the United States, studies have linked it to a variety of health problems. Last year EPA listed PDBEs as “chemicals of concern,” but it will take some time before the agency is able to regulate them, making Walmart’s action another example of voluntary private action to reduce risks to consumers. Lyndsey Layton, Wal-Mart Turns to “Retail Regulation” to Ban Flame Retardant, Washington Post, Feb. 27, 2011, at A4.
The Financial Times reported today that the size of land throughout the world planted with genetically modified (GM) crops increased by 10% in 2010 to 148 million hectares. This means that approximately 10 percent of all global cropland is now planted with genetically modified crops. Last year’s growth in GM crops represented the second largest growth since their commercial introduction in 1996.
My visit to Seattle coincide with that city’s lowest temperatures on record for this time of year. But I was delighted to get a chance to visit my brother and his family and to discover a wonderful boutique winery run by a lawyer that is making some of the best cabernets in Washington state. Tomorrow I am flying to Vermont to participate in Vermont Law School’s symposium on China’s Environmental Governance. I am looking forward to being reunited with China’s top environmental law scholars who will be participating in the symposium.
Monday, February 21, 2011
Reaction to Chevron/Ecuador Decision, US GHG Emissions Fall, Japanese Whale Hunt Ends Abruptly, House Rages Against the Environment (by Bob Percival)
An Ecuadoran court’s $8.6 billion judgment against Chevron for polluting the Oriente region of the Amazon received considerable press attention last week. I was interviewed by reporters from several publications including the Christian Science Monitor (from both Quito and Boston, see http://www.csmonitor.com/Environment/2011/0218/In-Ecuador-s-landmark-9-billion-judgment-against-Chevron-all-sides-unhappy), Bloomberg Business News (from San Francisco, see http://www.bloomberg.com/news/2011-02-14/chevron-to-appeal-adverse-judgment-in-ecuador-pollution-case.html), Greenwire (from D.C., see http://www.nytimes.com/gwire/2011/02/16/16greenwire-despite-86b-ruling-long-road-remains-for-chevr-74410.html), BBC World News Mundo (from London see http://www.bbc.co.uk/mundo/noticias/2011/02/110218_ecuador_chevron_financiamiento_rg.shtml), and the San Francisco Chronicle (see http://articles.sfgate.com/2011-02-16/business/28538735_1_small-ecuadoran-town-luis-yanza-pablo-fajardo/3). Protests were held at Chevron’s headquarters in San Ramon, California, while the plaintiffs in Lago Agrio appealed the judgment as too low and Chevron filed a 31-page request for clarification of the judgment.
Considerable press attention focused on the hedge funds providing financial assistance to the plaintiffs. This was the focus of an interview I gave to Scott Tong on American Public Radio’s “Marketplace” program (see http://marketplace.publicradio.org/display/web/2011/02/15/pm-a-long-long-legal-bet/). The hedge funds stepped in to provide the plaintiffs with funding to continue their litigation after the defendants opened up several new forums, making the case more expensive to litigate. I noted that if this is a case of David against Goliath, the hedge funds are providing David with a lot of additional stones, helping to level the playing field between the two sides.
Perhaps the most astonishing press “spin” on the case came from the editorial page of the Wall Street Journal, which on Feb. 15 declared in an editorial entitled “Shakedown in Ecuador” (see http://online.wsj.com/article/SB10001424052748703652104576121941625806096.html?mod=googlenews_wsj) that “The Ecuador suit is a form of global forum shopping, with U.S. trial lawyers and NGOs trying to hold American companies hostage in the world's least accountable and transparent legal systems.” The Journal editors have thrice before denounced the lawsuit, but what is astonishingly false about their “forum-shopping” claim is that the plaintiffs originally filed suit in New York federal court in 1993 and the case was dismissed in favor of the Ecuadoran forum at Chevron’s behest in 2002. I was disturbed enough by this falsehood that I wrote a letter to the Journal editors which will be published in tomorrow’s edition (see http://online.wsj.com/article/SB10001424052748704900004576152370171056008.html).
Last week the U.S. Environmental Protection Agency (EPA) reported that emissions of greenhouse gases (GHGs) declined in 2009 for the second year in a row. EPA estimated that they declined by 6 percent in 2009 due to reduced economic activity caused by the global financial downturn and a shift from coal to natural gas in electricity generation. Total U.S. emissions of GHGs were estimated to be 5.5 billion metric tons in 2009, below the 5.92 billion tons emitted in 2008 and the 6.12 billion tons in 2007. John M. Broder, Emissions Fell in 2009, Showing Impact of Recession, N.Y. Times, Feb. 21, 2011. However, U.S. GHG emissions were still 7.4% above their level in 1990, the Kyoto Protocol baseline.
Last week the Japanese whaling fleet cut short its annual whale hunt in the Antarctic in part out of frustration that an environmental group had been so successful in obstructing its whaling activities. Sea Shepherd Conservation Society disrupted the whale hunt, reportedly because it has acquired vessels that are faster than those used by the Japanese whalers. The United Kingdom last week launched prosecutions against criminal gangs that have been shipping toxic waste to developing countries in the guise of recycling. Most of the 30 prosecutions involve electrical waste sent to West Africa, while others involve used tires and household waste sent to Asia. UK Takes Action Against Toxic Waste Gangs, Financial Times, Feb. 19, 2011.
While many brave people in the Middle East and Northern Africa are holding “days of rage” to protest their authoritarian governments, last week the new Republican majority in the U.S. House of Representatives held its own “Week of Rage” directed against the Environment. By week’s end the U.S. House of Representatives passed an appropriations bill that cuts EPA’s budget by 30% while barring any use of funds for nearly all the agency’s most significant current initiatives. The funding cuts clearly are directed more at crippling protection of the environment than at saving money. Amendments added during the week bar EPA from using funds to implement regulation of GHG emissions, disposal of coal ash and wastes from mountaintop removal mining, mercury emissions from powerplants, and enforcement of the Chesapeake Bay cleanup. They also defunded NOAA’s proposed Climate Service, barred U.S. contributions to the Intergovernmental Panel on Climate Change, and suspended payments under the Equal Access to Justice Act that allows successful plaintiffs to recover attorney’s fees against government agencies who take positions that are not “substantially justified” in fighting citizen suits. The House also barred the use of funds to implement certain energy efficiency measures, including the phaseout of incandescent lightbulbs. A big battle is likely in the Senate and a possible government shutdown looms if no compromise is reached between the two houses of Congress. Consider whether some of these measures, if enacted, could open the U.S. to charges that it is not carrying out commitments made in trade agreements to implement and enforce its environmental laws.
BP’S $20 billion settlement fund, far larger than the magnitude of the House’s environmental budget cuts, was the subject of controversy last week. In comments filed last week BP criticized fund administrator Kenneth Feinberg for providing settlements that it claims are too generous in calculating future losses. The fund has paid out $3.5 billion to settle interim claims and 100,000 people are now seeking final settlements. Final payments can commence after a two-week comment period on Feinberg’s proposed settlement criteria ends on March 2. BP’s comments can be viewed online at: www.gulfcoastclimsfacility.com
Considerable press attention focused on the hedge funds providing financial assistance to the plaintiffs. This was the focus of an interview I gave to Scott Tong on American Public Radio’s “Marketplace” program (see http://marketplace.publicradio.org/display/web/2011/02/15/pm-a-long-long-legal-bet/). The hedge funds stepped in to provide the plaintiffs with funding to continue their litigation after the defendants opened up several new forums, making the case more expensive to litigate. I noted that if this is a case of David against Goliath, the hedge funds are providing David with a lot of additional stones, helping to level the playing field between the two sides.
Perhaps the most astonishing press “spin” on the case came from the editorial page of the Wall Street Journal, which on Feb. 15 declared in an editorial entitled “Shakedown in Ecuador” (see http://online.wsj.com/article/SB10001424052748703652104576121941625806096.html?mod=googlenews_wsj) that “The Ecuador suit is a form of global forum shopping, with U.S. trial lawyers and NGOs trying to hold American companies hostage in the world's least accountable and transparent legal systems.” The Journal editors have thrice before denounced the lawsuit, but what is astonishingly false about their “forum-shopping” claim is that the plaintiffs originally filed suit in New York federal court in 1993 and the case was dismissed in favor of the Ecuadoran forum at Chevron’s behest in 2002. I was disturbed enough by this falsehood that I wrote a letter to the Journal editors which will be published in tomorrow’s edition (see http://online.wsj.com/article/SB10001424052748704900004576152370171056008.html).
Last week the U.S. Environmental Protection Agency (EPA) reported that emissions of greenhouse gases (GHGs) declined in 2009 for the second year in a row. EPA estimated that they declined by 6 percent in 2009 due to reduced economic activity caused by the global financial downturn and a shift from coal to natural gas in electricity generation. Total U.S. emissions of GHGs were estimated to be 5.5 billion metric tons in 2009, below the 5.92 billion tons emitted in 2008 and the 6.12 billion tons in 2007. John M. Broder, Emissions Fell in 2009, Showing Impact of Recession, N.Y. Times, Feb. 21, 2011. However, U.S. GHG emissions were still 7.4% above their level in 1990, the Kyoto Protocol baseline.
Last week the Japanese whaling fleet cut short its annual whale hunt in the Antarctic in part out of frustration that an environmental group had been so successful in obstructing its whaling activities. Sea Shepherd Conservation Society disrupted the whale hunt, reportedly because it has acquired vessels that are faster than those used by the Japanese whalers. The United Kingdom last week launched prosecutions against criminal gangs that have been shipping toxic waste to developing countries in the guise of recycling. Most of the 30 prosecutions involve electrical waste sent to West Africa, while others involve used tires and household waste sent to Asia. UK Takes Action Against Toxic Waste Gangs, Financial Times, Feb. 19, 2011.
While many brave people in the Middle East and Northern Africa are holding “days of rage” to protest their authoritarian governments, last week the new Republican majority in the U.S. House of Representatives held its own “Week of Rage” directed against the Environment. By week’s end the U.S. House of Representatives passed an appropriations bill that cuts EPA’s budget by 30% while barring any use of funds for nearly all the agency’s most significant current initiatives. The funding cuts clearly are directed more at crippling protection of the environment than at saving money. Amendments added during the week bar EPA from using funds to implement regulation of GHG emissions, disposal of coal ash and wastes from mountaintop removal mining, mercury emissions from powerplants, and enforcement of the Chesapeake Bay cleanup. They also defunded NOAA’s proposed Climate Service, barred U.S. contributions to the Intergovernmental Panel on Climate Change, and suspended payments under the Equal Access to Justice Act that allows successful plaintiffs to recover attorney’s fees against government agencies who take positions that are not “substantially justified” in fighting citizen suits. The House also barred the use of funds to implement certain energy efficiency measures, including the phaseout of incandescent lightbulbs. A big battle is likely in the Senate and a possible government shutdown looms if no compromise is reached between the two houses of Congress. Consider whether some of these measures, if enacted, could open the U.S. to charges that it is not carrying out commitments made in trade agreements to implement and enforce its environmental laws.
BP’S $20 billion settlement fund, far larger than the magnitude of the House’s environmental budget cuts, was the subject of controversy last week. In comments filed last week BP criticized fund administrator Kenneth Feinberg for providing settlements that it claims are too generous in calculating future losses. The fund has paid out $3.5 billion to settle interim claims and 100,000 people are now seeking final settlements. Final payments can commence after a two-week comment period on Feinberg’s proposed settlement criteria ends on March 2. BP’s comments can be viewed online at: www.gulfcoastclimsfacility.com
Monday, February 14, 2011
Ecuador Hits Chevron With $8.6 Billion Judgment, U.S. Court Blocks Enforcement, Namibia Coast a National Park, Deja Vu in U.S. House (by Bob Percival)
After nearly two decades of litigation that began in the U.S. in the early 1990s, plaintiffs from the oil-contaminated Oriente region of Ecuador today won a $8.6 billion judgment against the Chevron Corporation in a trial court in Lago Agria, Ecuador. The plaintiffs claim that they have been harmed by pollution caused when Texaco, which Chevron acquired in 2001, developed oil fields there at the request of the government of Ecuador during the 1970s and 1980s. The judgment includes $5.39 billion to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat people affected by the pollution, $600 million to restore polluted water sources, $200 million to help native species recover, $150 million supply water to the community from unpolluted sources, and $100 million to create a community cultural reconstruction program. A Chevron spokesman denounced the judgment as “illegitimate,” “unenforceable,” “the product of fraud,” and “contrary to the legitimate scientific evidence.”
The judgment was widely anticipated, and six days before it was issued Chevron won a temporary restraining order from a federal district court in New York prospectively blocking enforcement in any court in the world of any judgment from the Ecuadoran court. The order is premised on Chevron’s allegations that the plaintiffs and their lawyers are engaged in a racketeering conspiracy to shake down the company. At a hearing in New York on February 8, Chevron alleged that lawyers and experts for the plaintiffs had doctored evidence. Ironically, Texaco could have had the lawsuit decided by courts in the U.S. during the early 1990s, but the company insisted that Ecuador was a more convenient forum. The federal court in New York dismissed the case on the condition that the company accept the jurisdiction of the courts of Ecuador. After a change of government, Ecuador no longer became the friendly forum Chevron had anticipated. The battle is likely to continue as the judgment is appealed in Ecuador and the parties fight over its enforceability in countries where Chevron has assets. Texaco (before being acquired by Chevron) pulled out of Ecuador after settling claims against it with the government.
Namibia just became the first country in the world to set aside its entire coastline as a national park. The park, which extends along all 976 miles of the nation’s coastline, covers an area larger than the entire country of Portugal. On Friday some of my environmental law students are leaving for Namibia to participate in Maryland’s new international clinic. While in Namibia they will be working on water rights issues under the direction of Professor Barbara Olshansky, a well known human rights lawyer. Professor Olshansky’s first major victory as an environmental lawyer came in 1993 when she prevailed over Floyd Abrams in the U.S. Court of Appeals for the Ninth Circuit while defending a California anti-greenwashing law defining what materials can be called recycled against a First Amendment challenge brought by advertising companies.
Last week the Committee on Energy and Commerce of the Republican-controlled U.S. House of Representatives held hearings on legislation to strip EPA of authority to regulate GHG emissions. The legislation is entitled “The Energy Tax Prevention Act of 2011” (Does that imply that something can be a tax even if it is not debated as such, exactly the opposite of what opponents of the constitutionality of the health care mandate are saying?).” EPA Administrator Lisa Jackson sparred with committee Republicans over the value of Clean Air Act regulations, including the agency’s plan to regulate emissions of greenhouse gases (GHGs). The committee’s website displays a banner reading: “In a power grab that rivals ObamaCare in audacity and job-killing effects, the EPA has claimed unto itself the power to regulate carbon dioxide, a byproduct of human and animal respiration and the basis for all life on earth, as a pollutant.” It seems the committee has forgotten that it was the U.S. Supreme Court in its April 2007 Massachusetts v. EPA decision that ruled that CO2 was a pollutant that must be regulated under the Clean Air Act if it endangers public health or the environment.
After consulting with industry groups, but not environmentalists, House Republicans have unveiled a list of “job-killing” regulations that sounds oddly reminiscent of the list prepared by President Reagan’s Task Force on Regulatory Relief exactly 30 years ago. One of the regulations targeted by the Reagan Task Force was EPA’s limit on the lead content of gasoline, which if relaxed would have caused enormous damage to public health by dramatically increasing lead poisoning. The Reagan effort ultimately backfired because it was not a serious effort to reform regulation, but rather a single-minded effort to reduce costs to industry, regardless of the benefits of such regulations. This was illustrated by the lead regulation which ultimately was strengthened prior to lead additives being banned from gasoline entirely, a measure now being adopted throughout the world.
On Monday February 7 I spoke at a program on “Free Market Environmentalism” sponsored by the Maryland chapter of the Federalist Society. Speaking for the Cato Foundation was my former classmate Doug Bandow. I noted that incorporating market mechanisms into some environmental regulations had proven useful, such as the SO2 emissions trading program in the Clean Air Act and catch quota for managing fisheries, but that the free market vision of going back entirely to the common law was a fantasy. Doug did an excellent job of representing the views that Cato often espouses, including cutting environmentally damaging subsidies, on which we could agee. I was surprised though that he was still bringing up the 1989 Alar controversy as an example of environmental alarmism when it illustrates how informed consumers more quickly forced the removal of an unreasonably dangerous pesticide from the market than regulators could.
The judgment was widely anticipated, and six days before it was issued Chevron won a temporary restraining order from a federal district court in New York prospectively blocking enforcement in any court in the world of any judgment from the Ecuadoran court. The order is premised on Chevron’s allegations that the plaintiffs and their lawyers are engaged in a racketeering conspiracy to shake down the company. At a hearing in New York on February 8, Chevron alleged that lawyers and experts for the plaintiffs had doctored evidence. Ironically, Texaco could have had the lawsuit decided by courts in the U.S. during the early 1990s, but the company insisted that Ecuador was a more convenient forum. The federal court in New York dismissed the case on the condition that the company accept the jurisdiction of the courts of Ecuador. After a change of government, Ecuador no longer became the friendly forum Chevron had anticipated. The battle is likely to continue as the judgment is appealed in Ecuador and the parties fight over its enforceability in countries where Chevron has assets. Texaco (before being acquired by Chevron) pulled out of Ecuador after settling claims against it with the government.
Namibia just became the first country in the world to set aside its entire coastline as a national park. The park, which extends along all 976 miles of the nation’s coastline, covers an area larger than the entire country of Portugal. On Friday some of my environmental law students are leaving for Namibia to participate in Maryland’s new international clinic. While in Namibia they will be working on water rights issues under the direction of Professor Barbara Olshansky, a well known human rights lawyer. Professor Olshansky’s first major victory as an environmental lawyer came in 1993 when she prevailed over Floyd Abrams in the U.S. Court of Appeals for the Ninth Circuit while defending a California anti-greenwashing law defining what materials can be called recycled against a First Amendment challenge brought by advertising companies.
Last week the Committee on Energy and Commerce of the Republican-controlled U.S. House of Representatives held hearings on legislation to strip EPA of authority to regulate GHG emissions. The legislation is entitled “The Energy Tax Prevention Act of 2011” (Does that imply that something can be a tax even if it is not debated as such, exactly the opposite of what opponents of the constitutionality of the health care mandate are saying?).” EPA Administrator Lisa Jackson sparred with committee Republicans over the value of Clean Air Act regulations, including the agency’s plan to regulate emissions of greenhouse gases (GHGs). The committee’s website displays a banner reading: “In a power grab that rivals ObamaCare in audacity and job-killing effects, the EPA has claimed unto itself the power to regulate carbon dioxide, a byproduct of human and animal respiration and the basis for all life on earth, as a pollutant.” It seems the committee has forgotten that it was the U.S. Supreme Court in its April 2007 Massachusetts v. EPA decision that ruled that CO2 was a pollutant that must be regulated under the Clean Air Act if it endangers public health or the environment.
After consulting with industry groups, but not environmentalists, House Republicans have unveiled a list of “job-killing” regulations that sounds oddly reminiscent of the list prepared by President Reagan’s Task Force on Regulatory Relief exactly 30 years ago. One of the regulations targeted by the Reagan Task Force was EPA’s limit on the lead content of gasoline, which if relaxed would have caused enormous damage to public health by dramatically increasing lead poisoning. The Reagan effort ultimately backfired because it was not a serious effort to reform regulation, but rather a single-minded effort to reduce costs to industry, regardless of the benefits of such regulations. This was illustrated by the lead regulation which ultimately was strengthened prior to lead additives being banned from gasoline entirely, a measure now being adopted throughout the world.
On Monday February 7 I spoke at a program on “Free Market Environmentalism” sponsored by the Maryland chapter of the Federalist Society. Speaking for the Cato Foundation was my former classmate Doug Bandow. I noted that incorporating market mechanisms into some environmental regulations had proven useful, such as the SO2 emissions trading program in the Clean Air Act and catch quota for managing fisheries, but that the free market vision of going back entirely to the common law was a fantasy. Doug did an excellent job of representing the views that Cato often espouses, including cutting environmentally damaging subsidies, on which we could agee. I was surprised though that he was still bringing up the 1989 Alar controversy as an example of environmental alarmism when it illustrates how informed consumers more quickly forced the removal of an unreasonably dangerous pesticide from the market than regulators could.
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