Fukushima Leak, Carbon Prices in China & California, 3rd Circuit Holds CAA Does Not Preempt State Tort Litigation (by Bob Percival)

Tokyo Electric Power (TEPCO) shocked the world last week with the announcement that 300 tons of highly radioactive water had leaked from a storage tank at the site of the Fukushima Daiichi nuclear accident.  The fact that Tokyo Electric Company is still struggling to control releases from the plant nearly two and a half years after the March 2011 disaster has caused immense worry around the world.  Chinese authorities expressed shock at the revelations.  Independent nuclear experts voiced concern that the situation may be far worse than Japanese authorities are letting on. There are now approximately 1,000 storage tanks with contaminated water and it is feared that this latest leak is only the tip of the iceberg for more leaks to come.

The Office of U.S. Trade Representative (USTR) has quietly reversed a policy that previously tolerated measures by developing countries to limit imports of U.S. tobacco products in order to protect public health.  Public health advocates are concerned that because U.S. tobacco products are particularly prized in the developing world efforts to remove trade barriers applied to them can increase tobacco use there. In the latest round of negotiations over the Trans-Pacific Partnership trade agreement with 11 other nations, USTR has caved in to pressure from the U.S. tobacco industry to eliminate a “safe harbor” provision from the multinational trade agreement that would have allowed other countries to limit U.S. tobacco imports.  In a hard-hitting oped in the New York Times, New York City Mayor Michael Bloomberg attacked USTR’s decision. “Why Is Obama Caving on Tobacco?” New York Times, August 22, 2013.

The prices of carbon permits in China rose last week to a level higher than that in the EU emissions trading system.  Prices on the Shenzhen Emissions Exchange rose to 43 RMB ($7) per metric ton (mt).  At the same time allowances in the EU traded for 4.36 Euros ($5.85) This was a substantial increase from the range of 28 to 32 RMB that the permits last sold for on June 18, the first day of trading.  Mike Anderson, Carbon Prices Rise on China’s First Market to Exceed EU Price, Bloomberg News, August 21, 2013 (http://www.bloomberg.com/news/2013-08-21/carbon-permits-rise-on-china-s-first-market-to-exceed-eu-price.html).  The Shenzhen exchange is the first of seven pilot carbon trading exchanges to be launched in China.

On August 21 the California Air Resources Board released the results of its latest auction of greenhouse gas emissions allowances.  The clearing price of $12.22/mt for 2013 was lower than expected.  In May the allowances had sold for $14/mt.  Allowances for emissions in 2016 sold for $11.10/mt.

On August 20 the U.S. Court of Appeals for the Third Circuit held that a powerplant’s compliance with the Clean Air Act does not insulate it from liability for nuisance, negligence and trespass under Pennsylvania common law.  The decision in Bell v. Cheswick Generating Station reversed a lower court decision that had dismissed a class action lawsuit by 1,500 people living within a mile of a coal-fired powerplant.  The plaintiffs initially filed suit in Pennsylvania state court, alleging that emissions from the plant had caused ash and other contaminants to land on their property.  The company that owned the plant, GenOn Power Midwest, L.P., had removed the case to federal court and filed a motion to dismiss, arguing that the Clean Air Act preempted the lawsuit because it imposed extensive regulations on the plant’s operations.  In support of its decision the Third Circuit cited the Clean Air Act’s “savings clauses” in both the citizen suit provision, 42 U.S.C. §7604(e), and 42 U.S.C, § 7416.  While noting that the plant’s federal permit mandates that it prevent emissions from harming others, the court also noted that the permit itself has a savings clause providing that it shall not be construed as impairing state common law remedies.  

The court concluded that its decision was mandated by the Supreme Court’s decision in International Paper Co. v. Ouellette (1987) which cited similar savings clause provisions in holding that the Clean Water Act did not preempt state tort litigation based on the law of the source state. Rejecting the company’s arguments that this could cause conflicting state regulatory standards, the Third Circuit concluded that, like the Clean Water Act, the Clean Air Act serves “as a regulatory floor, not a ceiling, . . . that states are free to impose higher standards on their own sources of pollution, and that state tort law is a permissible way of doing so.”

On Wednesday August 21 I joined Professor Jane Barrett for our annual outing to Oriole Park at Camden Yards with our research assistants and fellows from the Environmental Law Clinic.  The Orioles defeated Tampa Bay by a score of 4-2 in a game that was viewed as important for the Orioles’ playoff hopes.

China Environmental Field Trip, Ecuador Abandons "Pay Not to Drill" Plan for Yasuni National Park (by Bob Percival)

I did not blog last week because I was behind the great Chinese firewall, which continues to block blogspot.  I returned from China on August 14 after completing a very rewarding field trip with six students from my Vermont Law School summer course in Comparative U.S./China Environmental Law.  We visited several environmental groups, government officials, academics and private practitioners interested in environmental law.  An album of photos from the trip is now available in the “Photo Albums” section of my parallel website at: http://www.globalenvironmentallaw.com (click the "Photo Albums" link on the top of the opening page).

After arriving in Beijing on the afternoon of August 5 we visited Tiananmen Square and the National Center for Performing Arts and then had a Beijing duck banquet.  On August 6 we visited the Temple of Heaven and Qianmen Street before meeting with the All China Environment Federation (ACEF).  ACEF is a government-organized non-governmental organization, often referred to as a GONGO.  On the day we visited them ACEF had just filed an important lawsuit against China’s National Ocean Administration charging that the agency had illegally allowed oil drilling to resume after the Bohai Bay oil spill.  We had a lengthy discussion of the cases ACEF has brought and the controversy over a proposed change to China’s basic Environmental Law that would make them the only organization that could bring public interest environmental lawsuits.  Other environmental groups argue that it is unfair only to allow the one environmental GONGO to bring such lawsuits.  It is widely anticipated that this provision will be changed before final amendments to the law are adopted.  Following our meeting ACEF treated us to a banquet.

On August 7 we visited the Beijing office of the Natural Resources Defense Council (NRDC), the Center for Legal Assistance to Pollution Victims (CLAPV), Greenpeace, and the Regulatory Assistance Project.  At NRDC’s Beijing office Qian Jingjing gave us an overview of NRDC’s work in China.  NRDC has been working with Chinese NGOs to promote the rule of law and to use information disclosure to encourage greater public participation in regulatory policy decisions. NRDC’s Beijing office is focusing on issues involving energy efficiency, green buildings, and the greening of corporate supply chains.  NRDC’s offices are LEED certified, incorporating bamboo in their flooring.  For several years NRDC has been working with Chinese NGOs to rate 113 Chinese cities annually on how well they provide environmental information to the pbulic under China”s Open Information Act.

CLAPV, founded in 1999, has just moved into more spacious offices near their former home on the campus of the China University of Political Science and Law (CUPL).  CLAPV founder Wang Canfa reported that his environmental ”hotline” has received 13,000 calls resulting in 300 cases being brought. CLAPV also has trained more than 1,000 judges and lawyers in environmental law.  Professor Wang recently opened a law firm to bring public interest environmental cases.  The firm is called the Beijing Environmental Aid Law Firm, he explained, because the government would not let him use the words “Public Interest” in the firm’s name.

We then met with officials from Greenpeace East Asia, which was started in Hong Kong in 1997 and opened up a Beijing office in 2002.  There are 17 full-time staff employed by Greenpeace in Beijing, but because their Beijing office cannot raise funds directly, it is supported largely through donations to its Hong Kong office.  Greenpeace’s Beijing office focuses on five issue areas - climate and energy, forests, toxics, food and agriculture, and oceans.  It is placing considerable effort into using social media, such as Sina Weibo, a popular microblogging site, to mobilize consumers to pressure companies to abandon environmentally damaging practices.  Greenpeace staff also noted that the Chinese government has adopted some of their recommendations concerning toxic chemicals that should be banned.

We then met with Max Dupuy and Wang Xuan at the China office of the Regulatory Assistance Project (RAP).  RAP works on energy efficiency issues including how to connect renewable energy projects to China’s State Grid.  They noted that the Chinese government has issued directives setting caps on the amount of coal that can been used in the provinces around Beijing.  These caps eventually will be reduced to reduce coal consumption and the air pollution it produces.  

Also accompanying us on the trip was James Bruen from the San Francisco law firm of Farella Braun & Martel.  Jim is the co-chair of the pro bono committee of the American College of Environmental Lawyers (ACOEL).  When I was elected to membership in ACOEL last October I recommended to the pro bono committee that they consider providing assistance to Chinese environmental groups.  At our meetings with Chinese groups we discussed opportunities for such pro bono representation and received many positive responses.  Jim will present a report on our discussions when ACOEL holds its annual meeting in Boston in October.

On Thursday afternoon August 8 we flew from Beijing to Shanghai after visiting the Great Wall at Mutianyu in the morning.  At Mutianyu the wall is considerably elevated so we reached it by chairlift.  To descend from the wall we slid down on toboggans.

On Friday August 9 we had a very informative meeting with officials from the legal department of the Shanghai Environmental Protection Board (EPB).  Shanghai’s EPB is considered one of the best in China.  Because China’s regulatory system is so decentralized, EPB’s are vital actors in environmental protection efforts.  The Shanghai EPB brings its own enforcement cases and supports 18 districts of the metropolitan area that have their own EPBs.  The administrative department of the Shanghai EPB has the power directly to punish violators, but they also focus considerable efforts on helping companies come into compliance voluntarily.  The officials described their relationship with the national Ministry of Environmental Protection (MEP) as primarily one of going to MEP seminars that provide them with professional guidance.  They welcome greater public involvement in the implementation and enforcement of environmental law and the use of public interest environmental lawsuits.  They conceded that the public has not had much influence on decisions by the EPB in the past, but opined that they probably will in the future.  We discussed whether there will be more information sharing and cooperation between EPBs in the future. Environmental disclosures are becoming more important and agencies increasingly are using the internet to keep the public informed.  They noted that in China government officials can be held liable for negligent supervision of the regulated industry, which can make being an environmental official a “high risk career,” though such liability rarely is imposed.

In the afternoon of August 9 we met with a group of private environmental lawyers at the beautiful new law school building of Shanghai Jiaotong University in the west part of downtown.  The meeting was organized by Shanghai Jiatong law professor Zhao Huiyu who hosted our visit to Shanghai and Hangzhou.  The lawyers included Li Chen, chair of the environmental committee of the Shanghai Bar Association, and Nora Hu, a former prosecutor who has practiced law for more than 15 years and has obtained an LL.M. from the University of Southern California.  They noted that many lawyers in China are interested in environmental law, but that only a few are really able to specialize in it.  They predicted that it will take three to five years before a true environmental bar will materialize in China.  Because Chinese environmental laws are so poorly enforced, few Chinese companies are concerned about compliance or their reputations for environmental performance, but this is expected to change in the future.

On August 10 & 11 our group participated in an extraordinary conference on efforts to protect the environment in Tibet. The conference on “Conservation, Resource Management and Local Governance in Tibet: Challenges and Prospects in Policy Perspective,” was sponsored by the Tibet Governance and Practice (TGAP) program.  It was held at the Harvard Center Shanghai in Pudong.  On Saturday I chaired a panel on “Environmental Problems of the Tibetan Plateau: Questions on the Current Situation.” The conference program is available online at: www.tgapforum.org.  

On Monday August 12 our group took the bullet train from Shanghai to Hangzhou.  In Hangzhou we visited Zhejiang University’s Gaunghua Law School where we met with environmental law faculty.  Professor Qian Shuimiao, who has been helping to draft new environmental protection laws for Zhejiang Province, hosted a luncheon for our group.  Shanghai and Hangzhou have been gripped by a record heat wave that had yet to abate when we visited.  For nearly a month temperatures exceeded 40 degrees C each day, equivalent to 104 degrees Fahrenheit, which had reduced tourism in Hangzhou, a popular vacation site.  On August 13 we visited the Lingyin Temple area near Hangzhou, but scaled back our touring plans due to the extreme heat.

This is a particularly pivotal time for China as the country’s new leadership struggles to respond to public protests spawned by horrendous pollution problems that choked the nation last winter.  Extreme air pollution was not evident during our visit largely because it rained during part of our time in Beijing, but bright green algae blooms appeared on most bodies of water that we passed.  Our meetings with Chinese environmentalists revealed a growing, determined civil society operating in the shadow of concern over what direction the new government will take.  One surprisingly ominous development is a directive to universities issued by the Chinese government in May listing “seven forbiddens” - topics not to be discussed in classrooms, including civil society, constitutionalism, freedom of press, human rights, universal values, and administration of justice.  While draft amendments to the country’s basic environmental law would open the door to public interest environmental litigation, even ACEF, the one group that it would allow to bring such actions, often finds that its existing cases are not accepted by the courts.  The lack of an independent judiciary and a tradition of respect for the rule of law will continue to bedevil efforts to use lawsuits to protect China’s environment, but some environment groups are developing creative new strategies not dependent on litigation.

In 2007 Ecuadoran President Rafael Correa promised that the country would not extract heavy crude oil located beneath Yasuni National Park if the international community would contribute $3.6 billion to compensate for the lost oil.  The proposal attracted considerable publicity and small contributions from Spain, the Andean Development Bank, the Inter-American Development Bank, and others.  However, with only $13 million collected to date, Correa declared on August 15 that “the world has failed us.” Correa explained that “it was not charity that we sought from the international community, but co-responsibility in the face of climate change.” Ecuador estimated that extraction of the oil and destruction of the rainforest above it could increase greenhouse gas emissions by 1.2 billion tons. Correa stated that he will propose legislation to allow oil exploration in Yasuni, though limited to less than 1% of its area. Brad Plumer, “‘Pay Not to Drill’ Plan in Ecuador Hits Rock,” Washington Post, August 17, 2013, at A12.

Exxon & Chevron Find Production Gains Elusive, Vermont Course & China Field Trip, 7th Edition of Casebook (by Bob Percival)

Last week oil giants ExxonMobil and Chevron reported declining earnings.  One commentator called Chevron’s results “slightly disappointing,” while characterizing Exxon’s as “disastrous.”  A Wall Street Journal reporter noted that despite the increase in U.S. oil production due to expanding use of hydraulic fracturing technology, Exxon and Chevron are “spending unprecedented billions of dollars to find and extract petroleum, hunting in harder rockers, deeper underground and farther offshore.”  Even so , both oil giants are producing less oil and gas now than they were three years ago.  Daniel Gilbert & Tom Fowler, Exxon and Chevron Miss Out on U.S. Oil Boom, Wall Street Journal, July 31, 2013.

Last week I finished teaching my two-week summer course on Comparative U.S./China Environmental Law at Vermont Law School (VLS).  I had another great summer experience at VLS.  On Tuesday members of the VLS U.S.-China Partnership for Environmental Law took me out to lunch.   On Tuesday night John Echeverria hosted a dinner at his home in Strafford for visiting summer faculty.  On Wednesday I visited the Ben & Jerry’s Factory in Waterbury.  Thursday I attended a “Hot Topics” talk on the history of efforts to protect the Chesapeake Bay by visiting journalism fellow Timothy Wheeler from the Baltimore Sun.  I am now back in D.C. and I will be leaving this afternoon to take six of my Vermont students on an environmental field trip to China.  While in China we will be meeting with several environmental groups, academics, and government officials in Beijing, Shanghai, and Hangzhou.

On Friday I received the first copies of the new seventh edition of my environmental law casebook Environmental Regulation: Law, Science and Policy (Aspen 2013).  Thanks to the hard work of lots of Aspen editors, the book is available in time for use in fall 2013 classes.  A transition guide is available on the casebook website at: http://www.erlsp.com.  I am now putting the finishing touches on the new Teacher’s Manual that will be published shortly.

China Air Regs, Guatemala Mine Decision, Dodd-Frank Conflict Minerals Regs Upheld, NY MTBE Award Upheld, GHG Permitting Regs Upheld, Tony Oposa's CPR (by Bob Percival)

On July 24 Zhao Hualin, director of the pollution prevention and control department of China’s Ministry of Environmental Protection (MEP), revealed that China’s State Council had approved a new plan to reduce levels of PM2.5 particulate pollution in North China.  The plan seeks to achieve a 25 reduction from 2012 levels by the year 2017 in areas of the country that have been particularly hard hit by pollution, including Beijing, Tianjin and Hebei province.  China’s central government plans to invest 1.7 trillion yuan ($277 billion) over the next two years to support the plan.  The plan targets reducing levels of PM2.5 in Beijing to 60 micrograms per cubic meter of air by 2017.  Wu Wencong, State Council Gives Approval to Tough Air Emissions Plan, China Daily, July 25, 2013.  The current U.S. standard for PM2.5 is 12 micrograms per cubic meter of air.  This illustrates how bad China’s air pollution has become.

The Center for International Environmental Law reports that on July 23 a lower court in Guatemala ruled that the Ministry of Energy and Mines (MEM) violated the law in granting a license to the Tahoe Resources silver mine.  The court ruled that MEM was required to hear each of the more than 200 people who had objected to issuance of the license before granting it.  The Guatemalan court upheld the appeal of Quelvin Jimenez who was represented by the Centre for Environmental and Social Legal Action in Guatemala.  Tahoe Resources responded to the ruling by arguing that it did not make its license invalid and vowing to appeal the decision to the country’s Constitutional Court.

On July 23 federal district judge Robert Wilkins rejected the business community’s attack on the “conflict minerals” regulations issued by the U.S. Securities and Exchange Commission (SEC) pursuant to the Dodd-Frank Act.  The regulations require certain companies to disclose the source of certain minerals they use that could be produced by rebel groups in the Congo.  The judge had little difficulty rejecting the argument that the SEC had to prove that the regulations would reduce conflict in the Congo, distinguishing the D.C. Circuit’s 2011 Business Roundtable decision that required the use of cost-benefit analysis as involving economic regulations, rather than ones promoting humanitarian goals.  The court also found that the SEC had properly rejected industry’s proposed de minimis exception to the regulations and that the disclosure requirement did not violate the companies’ free speech rights.

On July 26 the U.S. Court of Appeals for the Second Circuit upheld an award of $104.7 million in damages to New York City for ExxonMobil's contamination of water resources with methyl tertiary butyl ether (MTBE).  The court rejected Exxon’s argument that the award was preempted by the Clean Air Act that required the use of MTBE in gasoline, finding that the verdict was not premised entirely on the use of MTBE, but also the lack of care in how it was used.  The court upheld Exxon’s liability even though New York is not yet using the waters affected by MTBE and even though the levels of contamination are low.

On July 26 the U.S. Court of Appeals for the D.C. Circuit rejected challenges by Texas, Wyoming, and an industry group to EPA rules requiring permits for new or modified large, stationary sources of greenhouse gas (GHG) emissions.  The decision was 2-1 with Judges Rogers and Tatel in the majority and Judge Kavanagh dissenting. Despite prior rulings upholding EPA’s authority to regulate GHG emissions, Texas had defied EPA and refused to amend its Clean Air Act state implementation plan (SIP) to require such permits.  The court concluded that §165(a) and §167 of the Clean Air Act make the permitting requirement self-executing and prohibit the construction of a major emitting facility without best available emissions control technology. Once EPA regulated GHG emissions from mobile sources, GHGs became a pollutant subject to regulation under the Act, triggering the permit requirement and enabling EPA to issue permits even if a state failed to amend its SIP.  The court held that the states and the industry group lacked standing to challenge EPA’s actions because EPA’s regulatory actions actually helped, rather than hurt, them.  “The challenged rules operated to fill a permitting gap in several States and thereby ensure that a permitting authority existed to issue necessary PSD permits. Vacating the challenged rules would mean neither those States nor EPA could issue greenhouse gas PSD permits, and construction of a major emitting facility could not proceed in those States.”  Thus, standing requirements, which have been used to keep environmentalists out of court at times, were used here to dismiss a challenge to environmental regulations.  This is similar to what occurred when the D.C. Circuit in June 2012 upheld EPA’s initial GHG regulations in the Coalition for Responsible Regulation decision.

On June 23 the D.C. Circuit upheld the primary (health-based) national ambient air quality standard (NAAQS) for ozone that had been issued by the administration of President George W. Bush.  Oddly, the court struck down the secondary (economic-based) NAAQS for ozone as insufficiently explained by EPA, even though it is set at the same level as the primary standard.  This will not have any real practical effect since the primary standard remains in effect and the Obama administration is required to update the ozone NAAQS shortly.

One of the joys of teaching in Vermont Law School’s Summer Program is the extraordinary group of scholars Vermont attracts during the summer.  Last week I had lunch with Distinguished International Environmental Law Scholar Tony Oposa, Jr., the Philippine environmental activist whose legal action resulted in the Philippine Supreme Court’s famous Minors Oposa decision recognizing the rights of future generations to be heard in environmental disputes.  Tony recently has filed a notice of intent to sue if the Philippine government does not set aside a portion of the nation’s roads to serve the 98% of the population without motor vehicles.  On Thursday he gave an inspiring talk at VLS describing his “CPR” (Conserve, Protect, and Restore) plan for the planet.

Chevron to Frack in Argentina, Nissan Delays Luxury Electric Car, Spain Cuts Solar Subsidies, Chine Nuclear Protests & Vermont Course (by Bob Percival)

Last week Argentina announced a joint venture between Chevron and the former Spanish oil company YPF that was expropriated last year by the Argentine government.  The joint venture will use hydraulic fracturing to extract oil and gas from the Vaca Muerte shale formation, one of the largest in the world.  The agreement was announced a month after the Supreme Court of Argentina reversed a lower court decision that had frozen the assets of Chevron’s Argentine subsidiary to help enforce an Ecuadoran judgment against Chevron for polluting the Amazon.  The Supreme Court ruled that Chevron Argentina is a separate company from the parent corporation and not responsible for the debts of its parent.

On Wednesday July 14 Nissan announced that it would “push back the timing” of the release of a luxury electric car to be called the Infiniti LE.  Nissan executives indicated that because electric vehicle technology is making rapid advances that were unforeseen two years ago when the car was announced, it would be better to wait to incorporate the new technology in the LE.  While Nissan officials declined to be more specific, analysts speculated that the new technology may involve a fast-charging combo plug or the use of liquid cooling for the car’s lithium ion battery pack.

On July 12 the government of Spain announced the third cutback since 2012 in its subsidies for solar power.  Launched in 2007, the subsidies enabled generators of solar power to obtain 12 times the market price of electricity generated by other means.  The result was an explosion of investment in solar energy, with Spain’s renewable energy output doubling in six years and the costs of the subsidies ballooning 40--fold from 2007 to 2012.  The latest cutback will reduce the subsidies by 2.7 billion Euros on top of 5.6 billion Euros in cuts made during the past two years.  The Cost del Sol, The Economist, July 20, 2013, at 57.

On July 12 and 14th people took to the streets in Jiangmen city in the southern Chinese province of Guangdong to protest plans to build a $6 billion uranium processing facitility to service China’s growing nuclear power industry.  Following the first protests, the local government announced that the facility would be abandoned, but the public again took to the streets to protest a rumor that the plant was only being postponed and not abandoned.  In response to the second protest on July 14 the Jiangmen city government confirmed that the plant would not be built.  This reputedly is the first major public protest over the Chinese nuclear power industry.  At the time of the Fukushima Daiichi disaster in March 2011, China had 13 nuclear power plants in operations, a number it planned to increased to 200 by the year 2020.  After a temporary moratorium was imposed in response to the Fukushima accident, in October 2012 China allowed nuclear construction to continue.  But China has extended the moratorium to at least 2015 for the 30 nuclear power plants that had been planned for inland locations.  There are now 17 nuclear power plants operating in China, all along the coast.  Limiting the Fallout, The Economist, July 20, 2013, at 41.

Today I arrived in Vermont where I will be teaching a two-week summer course in Comparative U.S./Chinese Environmental Law at Vermont Law School.  After the classroom component of the course concludes on August 1, I will be leading a field trip to China with five of the students.  Chinese NGOs expressed concern last week that a new draft of the proposed legislation allowing NGOs to bring public interest environmental litigation would only allow one group - the All China Environment Federation -- to bring such lawsuits because the draft would only allow government-sponsored NGOs (known as “GONGOs”) to bring such cases.

I now have posted on my parallel website at www.globalenvironmentallaw.com my photos of the 11th Colloquium of the IUCN Academy of Environmental Law that was held last month in New Zealand.  I also have posted in a separate album the photos of my two weeks exploring New Zealand with my wife after the Colloquium.  To view the photos visit www.globalenvironmentallaw.com and click on the “Photo Album” link at the top of the page.

Return from New Zealand, Environmental Issues Down Under (by Bob Percival)

My wife Barbara and I arrived home from our New Zealand vacation at 3:20AM this morning.  I flew on United from Auckland via Sydney, while Barbara had a more circuitous route on Singapore Air through Singapore and Seoul as part of a ticket purchased with airline miles.  We met up at the San Francisco Airport and I agreed to let her have my first class seat on the flight from San Francisco to Dulles, which was delayed for nearly two hours.  Barbara ended up sitting on the plane next to Nancy Pelosi, former Speaker and now Minority Leader of the U.S. House of Representatives.  Barbara’s late grandfather had briefly been a fellow member of the Maryland delegation in Congress with Pelosi’s father Thomas D’Alesandro, Jr. who later became mayor of Baltimore.

We had the best vacation ever exploring New Zealand for two weeks after the end of the IUCN Academy of Environmental Law Colloquium at Waikato University.  We started in the north on Waiheke Island near Auckland and drove south as far as Christchurch on the South Island.  We went winetasting at vineyards in six different wine regions of New Zealand and had some really memorable meals.  As mentioned last week, we hiked part of the Queen Charlotte Track with ferries depositing us on one part and picking us up on another.  Last Tuesday we spent an afternoon whale watching off the east coast of the South Island near Kaikura.  We saw three sperm whales and visited a sea lion colony.  On Thursday we took one of the most spectacular train rides in the world - the TraNZalpine railway from Christchurch to Greymouth.  It crosses New Zealand’s beautiful Southern Alps from the east coast to the west coast of the South Island in the morning and then returns in the afternoon.  

Before flying back to Auckland on Friday we toured the International Antarctic Center across the street from the offices of the U.S. Antarctica Program adjoining the Christchurch Airport.  This is the supply center for the U.S. bases in Antarctica.  The museum is fascinating with some terrific films of Antarctica and visitors can take a ride on a Hagglund vehicle widely used for exploration on the ice.  

Traveling in New Zealand and spending a day in Sydney on my return, I was  struck by the variety of environmental issues that are being debated by the public.  The town of Dunedin on the South Island is struggling to enforce ordinances designed to reduce smoke pollution by requiring homeowners to replace wood stoves with cleaner burning units.  Despite offering subsidies to finance the switch there has been widespread noncompliance so government officials are threatening to levy heavy fines.  In Australia the big environmental news was new Prime Minister Kevin Rudd’s announcement that the government would scrap the politically controversial carbon tax and replace it with a cap-and-trade program to be phased in a year earlier than previously contemplated.   Rudd promptly was accused by the conservative opposition (oddly called the Liberal Party) of being a flip-flopper.  Yet most of the public seems to take climate change seriously in light of the record heat during the summer and the debate has centered on the best approach to reduce greenhouse gas emissions.  

Australian environmental groups split over a plan to protect forests in Tasmania with some groups arguing that the plan does not go far enough to preserve forests.  Hydraulic fracturing also is becoming a big issue in Australia.  Since the government in Australia generally owns the subsurface resources under private property, the political dynamics of the fracking issue may be altered in ways that could foster some interesting comparative studies.  A common theme running through many of the environmental debates down under is that individuals offer more resistance to environmental measures that visibly cost them, such as a carbon tax or the need to scrap old wood stoves, and they are less enthusiastic about fracking when most of the benefits will go to the government while most of the burdens are put on their surface landholdings.

This was my first trip to New Zealand, the 82nd country I have visited.  I would love to return during New Zealand’s summer and visit the southern part of the South Island, including Milford Sound, when the weather is better. I took some great photos on the trip that I will be posting in the photo section of my parallel website at http://www.globalenvironmentallaw.com in the next few days.

ICJ Hears Australian Case Against Japan Whaling, Tonga's Lifuka Debates Sea Level Rise, New Zealand's Maui's Dolphin (by Bob Percival)

I am in New Zealand for another week, now traveling on the South Island.  There has been considerable publicity here concerning the hearings at the International Court of Justice (ICJ) in the Hague on Australia’s case (Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)) against Japan for whaling in the Antarctic in alleged violation of the International Whaling Commission’s moratorium on commercial whaling.  Australia launched the proceedings in May 2010 and New Zealand intervened in the case in February 2013 to support Australia’s claim that Japan’s whaling is illegal.  Japan claims that its whaling is legal under the exception for scientific research.  It also argues that Australia is trying to impose its own cultural values on Japan and that Australia and New Zealand have no basis for complaining about what Japan does outside of their territorial waters. Japan has taken more than 10,000 whales in the southern hemipshere under the guise of scientific research.  It currently allows 935 minke whales, 50 fin whales and 50 humpbacks to be taken, though only 18 fin whales and no humpbacks have been taken yet.  

New Zealand media are reporting that Pacific leaders will be meeting tomorrow to discuss how to cope with rising sea levels and subsiding land in the Tongan island of Lifuka.  More than 7,000 people live on Lifuka, which has lost many homes to rising sea levels and land sinking due to an earthquake fault.  Leaders are debating whether to build an expensive sea wall to try to prevent further flooding in the future or to relocate the residents.  Last week I was in Napier, New Zealand, where a February 1931 earthquake suddenly thrust land that had been under Hawke’s Bay two meters upward, creating dry land on which Napier’s airport was built.  I also toured the Parliament building in Wellington, that has been “seismically isolated” by being sliced from its foundation and placed on special load bearing ball bearings that allow the entire building to move back and forth in the event of an earthquake.  

While in Wellington I spent a morning hiking in Zealandia, a nature preserve in the hills above the city.  The preserve represents an ambitious effort to restore 225 hectares of land to its natural state as part of a 500-year plan.  Many rare species of birds have been attracted to the sanctuary.  Since the reserve is built directly over an earthquake fault, one wonders whether anyone can confidently predict what it will look like in 500 years.  Te Papa, the outstanding national museum of New Zealand located on Wellington’s waterfront, has several outstanding exhibitions on New Zealand’s fascinating ecological history and the severe harm invasive plant and animal species have caused to native flora and fauna.

Yesterday I traveled by ferry from Wellington on New Zealand’s North Island across the Cook Strait to Picton on New Zealand’s South Island.  After the ferry entered Queen Charlotte Sound we observed a group of dolphins welcoming us.  Today while taking a ferry from Picton to Ship Cove, the start of the Queen Charlotte Track, on which we hiked, we also observed dolphins in the Sound.  These were not the endangered Maui’s dolphin, of which it is estimated there are only 55 remaining who are more than one-year old.  They are located on the west coast of the North Island.  Last September New Zealand was the only nation to vote against a resolution at the IUCN’s World Conservation Congress in Korea calling for expanded protection of the Maui’s dolphin.  On July 6, New Zealand’s Dominion Post newspaper revealed that New Zealand’s lone vote in opposition to the resolution was dict'ated by New Zealand’s Ministry for Primary Industries over the opposition of the country’s Department of Conservation (DOC).  New Zealand’s DOC had urged that the government at least abstain rather than opposing the resolution, according to documents obtaining by the newspaper.  Matt Stewart, “Lack of Evidence” Behind NZ Vote Against Maui’s Aid, The Dominion Post, July 6, 2013, at A14.