EU Parliament Rejects New Fishing Subsidies, China's Latest "Airpocalypse," Greenpeace Piracy Charges Changed, ELI Award Dinner (by Bob Percival)

On October 23, the European Parliament voted to reject new subsidies to expand saltwater fishing fleets in the European Union.  The Parliament approved an $8.9 billion (6.5 billion Euro) budget to finance the EU’s Common Fisheries Policy for seven years.  The budget includes improved funding for research on fish stocks and enforcement of conservation measures, provisions sought by environmental groups.  However, the Parliament approved funding to subsidize the purchase of new engines for existing vessels, which may slow the shrinking of Europe’s fishing fleet, which is believed to be two to three times larger than sustainable levels. David Jolly, European Parliament Rejects New Subsidies for Fishing Fleets, New York Times, Oct. 23, 2013.

Drought is now blamed for the cataclysmic collapse of Bronze Age civilization in the Middle East during the years 1250-1100 B.C.  A study published on October 21 in Tel Aviv: Journal of the Institute of Archaelogy of Tel Aviv University examined ancient pollen grains from the years between 3,500-500 B.C.  The grains were extracted from sediment laying 65 feet underneath the bed of the Sea of Galilee and at Wadi Zeelum on the western margins of the Dead Sea. High resolution analysis of the grains of fossilized pollen showed a sharp decline in the growth of trees and other vegetation believed to be caused by sharp declines in precipitation.  Isabel Kershner, Pollen Study Points to Drought as Culprit in Bronze Age Mystery, N.Y. Times, Oct. 23, 2013, at A11.

Chinese authorities pursued emergency measures to combat extreme air pollution that has engulfed the northeastern town of Harbin, a city of 11 million people.  As levels of particulates in the ambient air reached more than forty times concentrations considered safe, roadblocks were established to check vehicle tailpipe emissions and officials went into the surrounding countryside to force farmers to stop burning cornstalks.  Schools were closed and flights were suspended at the Harbin airport. On October 24 China’s Ministry of Environmental Protection (MEP) announced that it was sending inspection teams to Harbin and other cities across the country to ensure compliance with environmental regulations. Edward Wong, Response to a City’s Smog Points to a Change in Chinese Attitude, New York Times, Oct. 25, 2013, at A12.

Russian authorities have dropped piracy charges, which carried 15-year prison terms, against Greenpeace activists who were seized while protesting offshore oil drilling in the Barents Sea.  The activists now have been charged with hooliganism, which carries a maximum seven-year prison term.  In response to the new charges Greenpeace stated that the activists “are no more hooligans than they were pirates.” Vladimir Chuprov, a representative of Greenpeace Russia stated that the Russian government’s action “represents nothing less than an assault on the very principle of peaceful protest.”  Paul Sonne, Russia Lessens Activists’ Charges, Wall St. J., Oct. 24, 2013, at A18.   On October 23 Russia’s Foreign Ministry announced that it would not attend an arbitration hearing by the International Tribunal of the Law of the Sea in Hamburg that had been sought by the government of the Netherlands in an effort to win release of the seized Greenpeace vessel Arctic Sunrise.

On Tuesday October 22 I attended the Environmental Law Institute’s annual award dinner at the Omni Shoreham Hotel in Washington.  This event has become what ELI proudly describes as the year’s largest gathering of environmental lawyers.  As always, it was great to see so many of my former students at the event. This year’s award winners were former Secretary of State George P. Shultz and philanthropist Thomas F. Steyer.  Together they led the successful, bipartisan campaign to defeat Proposition 23, a voter initiative that would have repealed California’s statewide program to control greenhouse gas emissions. Shultz, who is 93 years old, appeared by videotape and spoke about his long history of involvement in environmental efforts including the creation of EPA in 1970 and the ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer.  He indicated his support for measures to internalize the true costs of carbon and expressed optimism about the future direction of environmental policy.  In his acceptance speech Steyer stressed the importance of building bipartisan coalitions even in the face of current political polarization.  Senator Amy Klobuchar (D-Minn) introduced Steyer and also expressed optimism about the future, noting that EPA is in most capable hands with Gina McCarthy as administrator and that public backlash is mounting against anti-environmental extremists.  

Supreme Court to Review GHG Regs, Chevron RICO Trial Opens, Australian Carbon Tax, Kiribati Climate Asylum Claim, EU Delays Vehicle Regs (by Bob Percival)

On October 15, 2013 the U.S. Supreme Court announced that it will review a portion of the D.C. Circuit’s decision upholding EPA’s first regulation of greenhouse gas emissions in Coalition for Responsible Regulation v. EPA.  The Court limited its review to a single question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”  This means that the Court will not review EPA’s endangerment finding or tailpipe rule.  The focus in the Supreme Court instead will be on whether EPA can use the prevention of significant deterioration (PSD) program to regulate new sources of greenhouse gas (GHG) emissions.  As a result, EPA’s basic decision to use the Clean Air Act to regulate emissions of greenhouse gases no longer will be subject to legal challenge.  The question will be whether new and existing sources can be regulated in the absence of EPA promulgating a national ambient air quality standard (NAAQS) for GHG emissions under the Clean Air Act.  The case will be argued in the Supreme Court in early 2014 and it is likely to be decided before the Court adjourns at the end of June 2014.  

On Tuesday October 15 Chevron’s lawsuit against the plaintiffs and lawyers who successfully sued it for oil pollution in Ecuador opened in federal district court in New York.  The case is being tried before Judge Lewis Kaplan after Chevron dropped its claim for $100 million in damages to avoid a jury trial.  The case is the latest twist in decades of litigation initially brought in the same New York court nearly 20 years ago.  The case was dismissed from the U.S. courts in 2002 when the U.S. Court of Appeals for the Second Circuit accepted the oil company’s argument that the case instead should be heard in Ecuador.  But the court conditioned the dismissal on the company’s promise that it would accept the jurisdiction of the Ecuadoran courts.  After several years of legal proceedings in Ecuador, an Ecuadoran court ruled against Chevron in February 2011 and Chevron now is claiming that the judgment was a product of a fraudulent conspiracy between the plaintiffs, their lawyers, and the Ecuadoran judiciary.

Just as extreme heat and wildfires are about to return to Australia, new Australian Prime Minister Tony Abbott on October 15 unveiled his promised legislation to repeal the country’s carbon tax.  The carbon tax was a major campaign issue in last month’s national election in Australia that swept Abbott to power.  Under the proposed legislation, the carbon tax would be repealed effective July 1, 2014.  The Abbott government also plans to abolish the independent Climate Change Commission and the Clean Energy Finance Corporation.  Its argues that emissions of greenhouse gases can be better controlled through a “direct action” program offering competitive government grants to reduce emissions.

On October 16 Loane Teitiota, a 37-year old resident of the island of Kiribati, asked the High Court of New Zealand to grant him asylum, claiming that rising sea levels have made it too dangerous for him to return to his home. Teitiota is appealing the rejection of his asylum request by a New Zealand immigration tribunal.  The New Zealand High Court is expected to rule within a few weeks. Rising seas have damaged crops and contaminated drinking water supplies on Kiribati, one of the low-lying areas on earth.  The government of Kiribati has purchased 6,000 acres of land on Fiji to provide a possible resettlement site for some of its 100,000 residents. Lucy Craymere, Asylum-Seeking Man Cites Rising Seas, Wall St. J., October 17, 2013, at A10.

At a meeting of European environment ministers in Luxembourg on October 14, Germany joined Poland and the UK in opposing an agreement with the European Parliament to require motor vehicles to meet tougher GHG emissions standards by 2020.  The standards would require autos to emit no more than 95 grams of carbon dioxide per kilometer.  Acting at the behest of German luxury carmarkers, Germany succeeded in having the effective date of these standards postponed to 2024.  France, the Netherlands and Spain opposed the proposal, while Portugal and some eastern European countries supported it. Matthew Dalton, EU Emissions Plan Hits Roadblock, Wall St. J., Oct. 15, 2013, at B3. 

On October 14 the European Environmental Agency published an assessment of air quality in Europe.  The study, Air Quality in Europe -- 2013 Report, found that 90% of urban residents are exposed to air pollution at levels deemed harmful to human health.  The report noted that transboundary pollution remains a significant problem.  For many EU countries more than half of the small particulates (PM 2.5) found in their air originate in other countries.  Particulates and ozone pollution remain the most serious air pollution problems in Europe.  A copy of the report is available online at: http://www.eea.europa.eu/publications/air-quality-in-europe-2013.  The ten cities identified in the report as having the most serious air pollution problems are all located in Bulgaria and Poland.  These cities exceeded EU targets between one-third and one-half of the time in 2011.  Danny Hakim, Bulgaria’s Air Is Dirtiest in Europe, N.Y. Times, October 15, 2013, at B3.

On October 17 the Beijing city government announced a new strategy for responding to severe episodes of air pollution referred to as “Six Stops and One Wash.”  Private vehicles will be banned from the roads on alternate days depending upon their license numbers and street washing will be increased to hold down dust pollution.  If severe pollution continues for three days or more, factories will be shut down and construction halted and schools can be closed in certain circumstances.  Public transportation will be expanded on days when restrictions on private vehicle use take effect. Didi Kirsten Tatlow, Beijing City Officials Issue Rules to Counter the Effects of Persistent Air Pollution, N.Y. Times, Oct. 19, 2013, at A4.

The shutdown of the U.S. federal government disrupted the plans of many visitors to Washington, D.C., including a high-level delegation of Chinese environmental enforcement officials who were expecting to spend last week at EPA headquarters. The delegation, hosted by the Beijing office of the Environmental Defense Fund (EDF), including top officials from China’s Ministry of Environmental Protection (MEP) and enforcement officials from13 of China’s provinces.  It was led by Wang Dongqing, Deputy Director General of the Department of Environmental Enforcement and Inspection of MEP. At EDF’s request, I agreed to speak to the group about environmental enforcement issues on October 15. They seem surprised at how heavily the U.S. relies on self-monitoring and self-reporting by permit holders and the fact that U.S. regulatory officials are not subject to prosecution when they fail to prevent violations.  The officials also seemed fascinated by an automobile parked outside of EDF’s DC office.  Several had taken photos of it on their cellphone cameras.  It turned out to be my all-electric Tesla.

Mercury Treaty Signed, Haitian Cholera Victims Sue UN, French Fracking Ban Upheld, VELJ Symposium, ABA SEER Conference & ACOEL Meeting (by Bob Percival)

On October 10 representatives from 92 nations signed the Minimata Convention on Mercury.  The signing ceremony was held in Minimata, Japan, site of horrendous mercury poisoning caused by a chemical plant dumping mercury into the harbor of the small fishing village during the 1950s and 1960s.  Countries signing the treaty pledged to control emissions of mercury from new powerplants and to phase out the use of mercury in many products by the year 2020.  All mercury mining is to be neded in 15 years.  The treaty will take effect when ratified by 50 countries, which is expected to occur in three to four years.  Representatives of the U.S., who helped negotiate the treaty, left early without signing it due to the government shutdown.  

On October 9 victims of the deadly cholera epidemic in Haiti filed a class action lawsuit against the United Nations in federal district court in New York.  The lawsuit alleges that the October 2010 cholera outbreak, the first in Haiti in more than a century, can be traced to human sewage from Nepalese UN peacekeepers that leaked from pipes at the base of the United Nations Stabilization Force into a tributary of the Artibonite River. It is estimated that 8,300 Haitians died in the outbreak and 650,000 others were taken ill.  The UN undoubtedly will assert its long-established immunity from suit under the Convention on the Privileges and Immunities of the UN of 1946.  While expressing sympathy for the plight of the victims, UN officials have not conceded that its sewage caused the outbreak. Plaintiffs argue that the Convention specifies that the UN is to establish appropriate modes of settlement for third-party private law claims, but that it has failed to do so.  Due to the UN’s immunity, the lawsuit is  likely to be dismissed, but the widespread publicity it is receiving may increase pressure on the UN to provide some form of compensation to the victims.

France’s Constitutional Council has upheld that country’s ban on hydraulic fracturing.  The court rejected an appeal by a U.S.-based company, Schuepback Energy, which had been issued two permits to explore for shale gas prior to the fracking ban taking effect.  The court held that the environmental purpose of the fracking ban was legitimate, despite the company’s claim that there was no proof of environmental harm from fracking.  The company’s lawyers said they would continue separate litigation challenging the cancellation of their permits and seeking compensation  of €1 billion.  The decision was denounced by the French energy industry’s trade association, the GEP-AFTP, but applauded by Phillippe Martin, France’s environmental minister.  While France is believed to have some of the largest reserves of shale gas and oil in the EU, due to more extensive use of fracking in the U.S., the price of natural gas in Europe is three to four times higher than in the U.S. Hugh Carnegy, France Upholds Ban on Fracking, Financial Times, Oct. 12, 2013, at 10. 

This week I participated in three different conferences in three days.  On Wednesday I spoke on the opening panel of the Virginia Environmental Law Journal’s Symposium on “The Promise and Limits of Presidential Action on Climate Change.” The symposium was held at the University of Virginia Law School in Charlottesville.   Also on my panel were former EPA Assistant Administrator  Jeff Holmstead, UVA Law Professor Michael Livermore, UCLA Law Professor Ann Carlson, and USF Law Professor Alice Kaswan.  Our panel discussed the Obama Climate Action Plan, EPA’s proposed new source performance standard for powerplant carbon emissions, and EPA’s plans to use §111(d) of the Clean Air Act to regulate existing sources.  I gave a brief history of the use of presidential authority to protect the environment and argued that it is particularly appropriate for the President to act when Congress is in gridlock on environmental issues.  Prior to driving my Tesla down to Charlottesville, I was surprised to learn that there was only a single, public EV charging station there (in the Central Grounds Parking Garage on campus), but I was able to use it with no problem and drive back to Baltimore for my Environmental Law class late Wednesday.  

  

On Wednesday evening I attended a party at the National Aquarium in Baltimore sponsored by the law firm of Beveridge & Diamond.  The party was held in conjunction with the 21st Fall Conference of the ABA Section on Environment, Energy and Resource (SEER) Law.  I was delighted to see many of my former students at the party, including many who now work at the firm.

On Thursday I spoke on a panel at the ABA SEER conference on the constitutional limits to state authority to combat climate change.  I provided an opening overview of preemption and dormant commerce clause doctrines and how they have been applied in environmental cases.  I emphasized that the basic doctrines are relatively simple (the former focusing on congressional intent and the latter on whether state laws discriminate against interstate commerce), but they are often difficult to apply in practice.  I then introduced the Ninth Circuit’s September 18th decision in Rocky Mountain Farmers Union v. Corey (see Sept. 22, 2013 blog post), which rejected claims that California’s Low Carbon Fuel Standard (LCFS) violated the dormant commerce clause.  Also on the panel with me were Sean Donahue, who argued Rocky Mountain Farmers for the victorious environmental intervenors, and Shannon Broome, who represented the plaintiffs.  The Ninth Circuit’s decision does an excellent job of explaining how the LCFS calculates carbon intensity and why it does not discriminate against out-of-state fuel producers even though some carbon intensity values are calculated on the basis of location.

On Thursday night I flew to Boston where I attend the annual meeting of the American College of Environmental Lawyers (ACOEL) on Friday and Saturday.  Jim Bruen, who came to China with me in August as part of ACOEL’s pro bono project, presented a report on the progress of this initiative, which has resulted in the signing of memoranda of understanding making ACOEL a clearinghouse for connecting U.S. environmental lawyers with Chinese environmental groups, including the Beijing office of the Natural Resources Defense Council.  At the luncheon on Friday I spoke to ACOEL’s Policy Committee about the work of environmental groups in China.  On Saturday morning I met in Boston with representatives of a Chinese company interested in designing innovative new approaches to teaching about sustainability and energy policy, a possible project for my sabbatical next year.

The U.S. Supreme Court did not make any announcement on Friday concerning the cert petitions it is considering that pertain to the D.C. Circuit’s June 2012 decision upholding EPA’s initial greenhouse gas regulations.  The Court may announce whether it is granting any of the nine petitions on Tuesday (the Court is closed tomorrow for the Columbus Day holiday).

BP Trial Resumes, Chevron Ducks Jury Trial, Florida Sues Georgia Over Water Use, Piracy Charges Against Greenpeace, Pollution Disrupts China (by Bob Percival)

The second phase of the trial against BP for the 2010 oil spill in the Gulf of Mexico began last week in federal district court in New Orleans.  This phase of the trial will focus on the dispute over the amount of oil released in the spill, which is crucial to determining the size of the ultimate civil penalty BP will have to pay.   In their opening, lawyers for the federal government claimed that BP lied about the amount of oil that was leaking from the bottom of the Gulf after the April 2010 blowout at the Macondo well that killed 11 people on the Deepwater Horizon oil rig.  On October 2 BP won an order from the U.S. Court of Appeals for the Fifth Circuit directing Judge Carl Barbier to reconsider claims administrator Patrick Juneau’s interpretation of a settlement agreement that BP claims was resulting in payments that were too generous.  BP originally believed that the settlement would cost the company $7.8 billion, but it raised this estimate to $9.6 billion last July. Approximately $3.7 billion already has been paid out under the settlement.

On September 30 Chevron dropped its request for damages in its RICO suit against the lawyers and plaintiffs who won what is now a $19 billion judgment against the company for oil pollution in Ecuador.  The move was an effort to avoid a jury trial of Chevron’s claims that the lawsuit was part of an elaborate conspiracy to defraud the company.  Daniel Gilbert, Chevron Bids to Skip Jury in Ecuador Suit, Wall St. J., Oct. 1, 2013, at B3.  Fearful that a jury would ruled against it, Chevron apparently is more eager to get a formal ruling of fraud from Judge Lewis Kaplan than it is to obtain compensation.  Kaplan previously issued an injunction to bar efforts to enforce the judgment anywhere in the world, an injunction that was overturned on appeal.  Defendants in the RICO suit, including Steven Donziger, former lead lawyer for the pollution victims, asked the U.S. Court of Appeals to remove Judge Kaplan from hearing the case because of his alleged bias.  However, after hearing oral argument on September 26, a three-judge panel of the Second Circuit denied the motion without giving a formal reason.  Based on the judges’ comments at oral argument, it is likely that the denial was based on mandamus to remove a judge being an extraordinary remedy and the fact that any decision Judge Kaplan makes can be challenged on appeal.  The trial is scheduled to begin on October 15.

On September 30 the state of Florida filed suit against the state of Georgia for excessive consumption of upstream water.  The suit was filed in the U.S. Supreme Court, which has original jurisdiction over lawsuits between states.  Florida, Alabama and Georgia have been fighting over water use for the past two decades, but previous lawsuits were filed against the U.S. Army Corps of Engineers to contest how it regulates interstate water use.  Florida argues that a historic collapse of oyster harvests in Apalachicola Bay has been caused by reduced water flows into it from the north.  Arguing that the lawsuit was “frivolous,” a spokesman for Georgia Governor Robert Bentley attributed the oyster collapse to overharvesting and drought.  Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J., October 1, 2013.

A Russian court in Murmansk has now filed piracy charges against all 30 people from 19 countries who were onboard the vessel Arctic Sunrise when it was used by Greenpeace activists to protest oil drilling in the Arctic (see blog posts from Sept. 22 and 29 of this year).  The charges, which carry prison terms up to 15 years, seem ludicrous on their face.  They are spawning protests aroudn the world, including in Russia, London, and the Netherlands, which has demanded the return of the vessel that flies its flag. 

Hazardous levels of air pollution plagued northern China this weekend, leading to flight cancellations and road closures during the end of China’s “Golden Week” holiday.  The pollution resulted in delayed starting times for golfers at the Reignwood Ladies Professional Golfing Association (LPGA) Classic, the first LPGA event ever held in China.  The U.S. Embassy in Beijing reported that air pollution levels reached 400 on Saturday night using an index in which anything over 301 is considered hazardous to health. Louise Watt, Pollution Disrupts Sports Events, Travel in China, Associated Press, October 6, 2013.

IPCC Draft Report, Lacey Act Lumber Raid, Russia Holds Greenpeace Activists, Initiative to Combat Elephant Poaching (by Bob Percival)

On September 27 the Intergovernmental Panel on Climate Change (IPCC) released its draft Fifth Assessment report from Working Group I (WGI) that focuses on summarizing the latest scientific information on global warming and climate change.  The report was prepared by 259 co-authors from 29 countries.  They reviewed 2 million gigabytes of data from climate model simulations and cited 9,200 publications, three-quarters of which were published after the IPCC’s Fourth Assessment report was published in 2007.  The report concludes that “human influence on the climate system is clear” and that “[c]ontinued emissions of greenhouse gases will cause further warming and changes in all components of the climate system.”  The report estimates a likely range of warming between 1.5C to 4.5C (roughly 3 to 8 degrees Fahrenheit).  It concludes that “[l]imiting climate change will require substantial and sustained reductions of greenhouse gas emissions.”  A complete copy of the draft report will be made available online on September 30.  A short “Summary for Policymakers” is available now at: http://www.climatechange2013.org/images/uploads/WGIAR5-SPM_Approved27Sep2013.pdf. Additional IPCC work group reports next year will focus on Impacts, Adaptation and Vulnerability (WGII) and Mitigation of Climate Change (WGIII) before a Synthesis Report is issued next fall.  In an effort to confuse the public, climate change deniers have formed a group they call the “Nongovernmental International Panel on Climate Change (NIPCC),” which issued a report published by the Heartland Institute regurgitating the standard claims of the deniers. 

On September 26 federal agents raided the Virginia offices of Lumber Liquidators as part of an investigation of possible violations of the Lacey Act, which prohibits importation of wood products harvested in violation of U.S. or foreign laws.  Although the search warrants supporting the raid remain under seal, reportedly the company is suspected of importing wood products originating in eastern Siberia where their harvest is prohibited to protect the endangered Siberian tiger.  The Lacey Act originally was enacted in 1900 to prevent interstate transport of wildlife that had been illegally hunted.  It was expanded over time to prohibit the import, export, sale or purchase of wildlife taken in violation of state, federal, tribal, or foreign law.  In 2008 the Lacey Act was amended to expand its reach to timber and timber products.   In July 2012 Gibson Guitar Corporation settled federal charges that it had imported wood ebony from Madagascar even after learning that it had been harvested illegally.  Lumber Liquidators issued a statement stating that it “takes its sourcing and compliance very seriously” and employs “more than 60 professionals around the world” who monitor compliance at the 110 domestic and international mills from which its products come.  After news of the raid became public, Lumber Liquidator’s stock price opened 12.8% lower on September 27, but it rebounded to close down 5.2%.

A court in Murmansk, Russia has ordered thirty Greenpeace activists to be held in custody for two months while Russian authorities investigate potential piracy charges against them.  The thirty were on board the Greenpeace vessel Arctic Sunrise when it was boarded by agents of Russia’s Federal Security Service (FSB) in international waters off the northern coast of Russia.  The boarding came after some of the activists attempted to climb onto the Russian oil rig Prirazlomnaya to protest oil drilling in the Arctic.  Marc Rutte, Prime Minister of the Netherlands, has protested the fact that Russian authorities did not contact him before boarding the vessel, which flies the flag of the Netherlands.  Russian President Vladimir Putin stated that the activists “obviously are not pirates,”  but he has not acted to free the activists.

A new $80 million global effort to combat elephant poaching was launched on September 26, the final day of the annual meeting of the Clinton Global Initiative.  The new program will add 3,100 additional guards at 50 sites with a population of 285,000 elephants, approximately two-thirds of Africa’s elephant population.  It will add sniffer-dog teams to 10 international entry points.  Ten nations in Asia that are prominent consumers of ivory -- including China, Japan and Vietnam -- have pledged to launch efforts to reduce consumer demand for it.  Several African countries have pledged to increase penalties for elephant poaching.  It is estimated that 35,000 elephants were killed in 2012.  The carcasses of scores of elephants poisoned by poachers with cyanide have been discovered this month at Hwange National Park in Zimbabwe and several arrests have been made.

EPA Proposes GHG Limits on New Power Plants, Calif. Low Carbon Fuel Standard Upheld, Arctic Sea Ice Bounces Back (by Bob Percival)

On September 20 the U.S. Environmental Protection Agency proposed a new source performance standard (NSPS) under the Clean Air Act that would limit emissions of greenhouse gases from new power plants.  The proposal is a major part of the measures President Obama announced in his Climate Action Plan on June 25.  Under the proposed NSPS new, large natural gas-fired turbines could emit no more than 1,000 pounds of CO2 per megawatt hour and coal-fired turbines no more than 1,100 pounds.  This essentially would require any new coal-fired power plant to employ carbon capture and storage technologies that the utility industry argues have not yet been adequately demonstrated.  Perhaps the best sound bite from the industry opponents was when one claimed that it was as if EPA was requiring power plants to use the iPhone9 when only the iPhone5 is currently available.  The proposed regulations are now subject to public comment before EPA takes final action on them, likely sometime next year. EPA’s press release is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/da9640577ceacd9f85257beb006cb2b6!OpenDocument.

California won an important legal victory for its program to reduce state-wide greenhouse gas emissions.  On September 18 the U.S. Court of Appeals for the Ninth Circuit upheld California’s low-carbon fuel standard.  The 2-1 decision in Rocky Mountain Farmers Union v. Corey reversed a lower court that had held the standard invalid under the dormant commerce clause.  The Ninth Circuit majority held that the standard did not facially discriminate against interstate commerce by calculating the carbon intensity of transportation fuels in a manner that accounts for the distance they travel from the point of production to the market.  On October 10 I will be on a panel discussing this decision and others involving constitutional challenges to state renewable energy initiatives at the annual fall meeting of the ABA’s Section on Environment, Energy, and Resources in Baltimore.

On September 17 EPA released a 331-page report on “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” The report is a synthesis of all peer-reviewed science that exists on the connections between wetlands, streams, and downstream waters.  EPA is soliciting public comment on the report, which EPA’s Scientific Advisory Board (SAB) is using to support a proposed new rulere defining “waters of the United States” for purposes of federal jurisdiction under the Clean Water Act.  Since the Supreme Court’s decision in Rapanos v. U.S. in 2006 there has been massive confusion concerning the extent of federal jurisdiction.  The report is available online at: http://yosemite.epa.gov/sab/sabproduct.nsf/46963ceebabd621905256cae0053d5c6/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf.

Governments in developing countries in Africa, including Niger, Chad and Gabon, have started to renegotiate the terms of contracts they previously signed with Chinese oil companies.  The governments believe that the terms of the contracts are unfair because they do not adequately compensate the countries for their oil wealth and the environmental damage oil extraction may cause.  Adam Nossiter, China Finds Resistance to Oil Deals in Africa, N.Y. Times, Sept. 17, 2013.

In the runup to today’s election in Germany some German companies are seeking to put the brakes on the country’s transition away from nuclear power and toward renewable energy sources.  The companies argue that the government policy has sharply raised rates for electricity, making German companies less competitive in international markets. Andrea Thomas & Jan Hromadeo, Industry Fires Warning Shot on Energy, Wall St. J., Sept. 21-22, 2013, at A8.

Last week the Permanent Court for Arbitration in the Hague issued an interim judgment on Chevron’s claim that Ecuador is violating the U.S./Ecuador Bilateral Investment Treaty because its courts have held Chevron liable for oil pollution there.  Chevron filed the international arbitration proceeding in September 2009 while an action against it was pending in an Ecuadoran court that in February 2011 rendered what is now a $19 billion judgment against Chevron.  The three arbitrators ruled unanimously that a 1995 settlement agreement between Ecuador and Chevron addressing the oil pollution was intended also to bar any “diffuse” or “collective” claims filed to enforce the right to a clean environment in Article 19-2 of the Constitution of Ecuador.  A copy of the arbitrators’ interim judgment is available online at Chevron’s “Amazon Post” website at: http://www.theamazonpost.com/wp-content/uploads/chevron-ecuador-bit-tribunal.pdf. Chevron is asking the arbitrators to direct Ecuador to oppose enforcement of the judgment in any court and to take steps to nullify it in Ecuador.  The 48 private plaintiffs who secured the judgment are not parties to the arbitration.  

On Thursday the U.S. Court of Appeals for the Second Circuit will hear the next phase of the litigation brought by Chevron accusing the Ecuadoran plaintiffs and their lawyers of fraud.  The court will here oral argument on the Ecuadoran plaintiffs’ efforts to force the removal of Judge Lewis A. Kaplan, the federal district judge presiding over Chevron’s RICO suit against them.  Chevron has hired former Solicitor General Ted Olson and former Attorney General Michael Mukasey as part of its legal team opposing Judge Kaplan’s removal. Judge Kaplan previously issued an injunction purporting to bar the plaintiffs from seeking enforcement of the judgment anywhere in the world, but the Second Circuit dissolved the injunction, holding that it exceeded the judges authority.

Arctic sea ice has bounced back in 2013 from the record low levels it reached in 2012.  In 2012 only 24% of the Arctic Ocean was covered by sea ice at the end of the summer.  This year 36% of the Arctic was covered with ice at the end of the summer, a 50% increase. Scientists do not believe that this represents a deviation from the pattern of declining sea ice because “a new low in summer sea ice has been set every few years, followed by a few years of recovery, followed by yet another low that typically exceeds the previous one by a substantial margin.” Justin Gillis, Arctic Ice Makes Comeback From Record Low, but Long-Term Decline May Continue, N.Y. Times, Sept. 21, 2013, at A7.  Melting of sea ice does not affect global sea levels since the ice already is in the water, but it is viewed as an important indicator of what may happen to the Greenland icecap, which could have a huge impact on sea level rise if it melts because it is located over land.

Protestors from Greenpeace attempted last week to board a Russian offshore oil drilling platform in the Arctic’s Pechora Sea.  They and their vessel were seized by Russian authorities.  Steven Lee Myers, Russia Seizes Greenpeace Ship and Crew for Investigation, N.Y. Times, Sept. 21, 2013, at A7.

CHEVRON’S BRAZIL SETTLEMENT, CHESAPEAKE TMDL UPHELD, CHINA AIR POLLUTION PLAN & CALIFORNIA MOU WITH CHINA’S NDRC (BY BOB PERCIVAL)

On September 13 the Chevron Corporation reached a $42 million (95.2 million Brazilian reals) settlement for a drilling accident in November 2011 that caused an oil spill in the Frade field off the southeast coast of Brazil (see blog posts for Nov. 20, 2011 & Nov. 27, 2011 reporting on the initial spill). Chevron also paid fines of 42.9 million reals ($18.8 million) to IBAMA, Brazil’s environmental agency, and 25.6 million reals ($11.2 million) to SNP, Brazil’s oil regulator. The accident resulted in between 2,400 and 3,700 barrels of oil being released from the seabed. Brazilian authorities initially sought $20 billion in damages from Chevron.  They ultimately agreed to settle for far less after concluding that the spill caused far less damage than initially thought.  However, based on the size of the spill, the settlement is still more than two and a half times larger that the civil recovery that would be authorized under the U.S. Clean Water Act if Chevron had been “grossly negligent” ($4,300/barrel) for a spill in U.S. waters.  The settlement was reached just a week before the Brazilian government auctions off leases to develop another large offshore oil field. Jeff Fick, Chevron Agrees to Settle Oil-Spill Lawsuits in Brazil for $42 Million, Wall Street J., Sept. 13, 2013. Criminal charges that had been brought against 17 executives from Chevron and its contract driller Transocean were dismissed by a Brazilian judge last February.

The American Farm Bureau Federation suffered a huge defeat on September 13 when a federal district judge in Pennsylvania rejected its legal challenges to EPA’s total maximum daily loadings (TMDL) plan to protect the Chesapeake Bay from excessive nutrient loadings.  A TMDL is essentially a “pollution diet” that limits the amount of pollutants that various sources can contribute to a body of water that is not meeting its water quality standards. EPA finalized the TMDL for the Chesapeake Bay in December 2010.  Joined by other farming groups and pork and poultry producers, the Farm Bureau then filed suit, arguing that EPA had exceeded its authority by mandating specific allocations for future nutrient loadings into the Bay.  Oral argument was held on October 4, 2012 before federal district judge Sylvia Ramble in federal district court for the middle district of Pennsylvania.  The judge rejected the legal arguments made by the plaintiffs and ruled in EPA’s favor, upholding the TMDL.

On September 12 China’s State Council released its latest plan to control air pollution.  The plan calls for limits on the burning of coal and new strategies for removing highly-polluting vehicles from China’s motorways. The plan seeks to reduce concentrations of particulate matter by 25 percent in the Beijing area, 20 percent in the Yangtze Rive Delta, and 15 percent in the Pearl River Delta.  The goal is to keep average concentrations of fine particulates (PM 2.5) in Beijing to no more than 60 micrograms per cubic meter of air, five times the legal limit in the U.S. and two and a half times the recommended limit set by the World Health Organization.  The plan disappointed environmentalists in China who were hoping for something more aggressive.  

On the day the plan was announced levels of PM 2.5 in Beijing were at a very unhealthy 213 micrograms per cubic meter, more than 17 times the legal limit throughout the U.S. The State Council’s plan seeks to reduce coal use to 65% of energy consumption by 2017 from 67% in 2012. Motor vehicles registered before 2005 are to be removed from motorways by 2015 in highly polluted areas and throughout all China by 2017. Edward Wong, China’s Plan to Curb Air Pollution Sets Limits on Coal Use and Vehicles, N.Y. Times, Sept. 13, 2013, at A4. As foreign demand for coal decreases, U.S. coal companies are reducing their export plans. One energy consultant described this as the beginning “of a big structural shift, particularly in the Chinese energy sector.” Clifford Krauss, U.S. Coal Companies Scale Back Export Goals, N.Y. Times, Sept. 13, 2013, at B1.  

On September 13 the State of California signed a memorandum of understanding (MOU) with China’s National Development and Reform Commission (NDRC - not to be confused with NRDC, the U.S. environmental NGO). The MOU pledges that California will cooperate with the NDRC to help China reduce its emissions of greenhouse gases.  I have been quoted in an Associated Press article about the signing, which was picked up in many newspapers throughout the U.S. and some other countries, as emphasizing that NDRC is the most powerful government agency in China with respect to development and energy policy.  The MOU continues the trend of bilateral cooperation between the U.S. and China on climate change issues.  As the world’s two largest emitters of greenhouse gases, there is much that can be accomplished by the two countries working together.