Judge Holds Vale Liable for Brazilian Spill, Record Air Pollution Spurs Vehicle Restrictions in Italy, Court Approves Restart of Two Japanese Reactors, Obama Vetoes EPA Disapproval Resolutions (by Bob Percival

A Brazilian judge has ruled that the Brazilian multinational mining company Vale SA shares liability for the catastrophic tailings spill from a collapsed storage dam operated by Samarco Mineracao SA, a joint venture between Vale and BHP Billiton Ltd.  Judge Marcelo Aguiar Machado found that Vale’s contract to dump tailings into the storage impoundment “is sufficient to lay the foundation for the claim that Vale should be considered a direct polluter and, in this quality, responsible for the environmental damage.  The November 5th collapse unleashed “an avalanche of mud that killed 19 people, destroyed several villages, polluted hundreds of miles of rivers and left a reddish plume in the Atlantic Ocean so vast it was visible from space more than a month later.” Paul Kiernan, Miner Vale Shares Liability in Dam Break, Judge Rules, Wall Street Journal, Dec. 21, 2015. The judge ordered Vale to pay $500 million within 30 days to fund initial cleanup or pay daily fines.

Major cities in Italy - Milan and Rome - have imposed restrictions on vehicle use because of record levels of air pollution.  Unusually mild and dry weather and the absence of wind has contributed to a buildup of high levels of particulates and nitrogen dioxide.  Motor vehicles and home heating systems that are largely unregulated  are two of the primary sources of the pollution. Gaia Pianigiani, Italy, Dirty Air at Record Levels, Is Putting Limits on Traffic, N.Y. Times, Dec. 24, 2015.  The reactors are expected to return to service in late January.

On December 24 a Japanese court approved the restart of two more nuclear reactors that had been shut down in the wake of the 2011 Fukushima Daiichi disaster.  The reactors, which are owned by Kansai Electric Power, are located in the western city of Takahama. The Fukui District Court lifted an injunction after determining that the plant operators had complied with new regulations by Japan’s Nuclear Regulation Authority. The first of the reactors is expected to return to operation in late January 2016.

On December 23 the editors of the Wall Street Journal published an editorial praising Congress for cutting the EPA budget.  “Brushing Back a Lawless EPA,” Wall St. J., Dec. 23, 2015.  The editors noted that the omnibus budget bill funded EPA at a level of $8.1 billion, $451 million less than President Obama had requested.  It noted that EPA now has only 15,000 employees, down from 17,000 at the start of the Obama administration and the lowest level since 1989.  It decried the lack of policy riders to block EPA action, save for one barring EPA from regulating livestock emissions of greenhouse gases (GHGs).  EPA opponents in Congress did try to use the Congressional Review Act (CRA) to veto EPA regulations to limit GHG emissions from power plants.  The CRA creates a special fast-track procedure permitting an up-or-down vote in each house of Congress.  On Nov. 17, 2015, the U.S. Senate passed a joint resolution of disapproval of EPA’s new source performance standard by a vote of 52-46 with only three Democrats supporting the resolution and three Republicans voting against it. The disapproval resolution was adopted by the House by a vote of 235-188 on Dec. 1, 2015, even as the Paris climate negotiations were taking place.  Only four Democrats supported the resolution, while 10 Republicans voted against it.  A resolution disapproving EPA’s GHG regulations for existing power plants passed the Senate on Nov. 17, 2015 by a vote of 52-46.  The resolution passed the House by a vote of 242-180 on Dec. 1, 2015.  This all turned out to be political theater because, as promised, President Obama vetoed both joint resolutions of disapproval on Dec. 18, 2015. As a result, the regulations remain in effect.

Mercury Rule Intact, Last British Coal Mine Closes, Tehran & Delhi Air Pollution, Brazil's Toxic Sludge (by Bob Percival)

A week after the Paris Agreement on climate change was adopted, environmentalists are still enjoying the afterglow that comes from having the entire world now participating in efforts to respond to climate change.  On Monday the New Republic published my article “Can Obama’s Climate Pledges Survive Republican Opposition?” as the lead story on their website at: https://newrepublic.com/article/125735/can-obamas-climate-pledges-survive-republican-opposition.  As noted last week, it is widely agreed that a major factor in reaching the agreement was diplomacy between the U.S. and China that in November 2014 had produced China’s first pledge to cap and reduce its greenhouse gas (GHG) emissions.  Those who participated in the negotiations also had nothing but high praise for the role France played in bringing the parties together.

On December 17 a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed that EPA can keep its regulations controlling mercury emissions from power plants intact while it complies with the Supreme Court’s Michigan v. EPA decision.  Last June the Supreme Court in Michigan v. EPA held that EPA should have considered costs when it initially decided to regulate mercury emissions from power plants.  The mercury rule had not been stayed, however, and virtually all power plants that were not planning to shut down had complied with it.  This confirms what I said in my blog post of July 5, 2015 where I wrote: “While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision.  EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported.  Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated.”

On December 18 the Kellingley Colliery, the last deep coal mine in Britain, closed. In 1981 Britain produced more than 125 million tons of coal each year, but coal production has been steadily declining since then. In the early days of the 20th century more than 1 million people worked in the UK coal industry, but by the 1970s only 250,000 people were employed there.  Some surface coal mines still remain in Britain, but a fall in global demand for coal led to a precipitous decline in the coal industry’s fortunes there.

Government authorities in Iran’s capital of Tehran closed schools for two days beginning on Sunday December 20 because of extraordinarily high levels of air pollution.  (Sundays are a working day in Iran with Friday being the only official weekend day). Schools also were closed in the Iranian cities of Isfahan and Arak. On December 16 the Supreme Court of India responded to high levels of air pollution by banning registration of large (over 2000 cc) diesel vehicles in Delhi until March 31.  The Court also prohibited vehicles transporting goods whose final destination is not Delhi from transiting through the city.  The Court’s order partially reverses an order by the National Green Tribunal banning registration of all diesel vehicles until January 6.  The Court explained that it wanted the wealthier classes who typically own the larger diesel vehicles to bear the brunt of its orders.

An article published last week in the New York Times questions whether the companies responsible for the November toxic sludge spill at an iron ore mine in Brazil will ultimately be held to account for all the damage they have caused. Vanessa Barbera, Brazil’s Toxic Sludge, N.Y. Times, Dec. 17, 2015, at A35.  The article notes that Brazil collects only 3% of the fines it imposes in environmental cases. “According to government statistics, environmental lawbreakers in Brazil paid less than 3 percent of fines levied against them over the past five years. Many people suspect that Vale and BHP will go unpunished and that safety regulations for the mining industry won’t be updated in light of the disaster.”

Historic Climate Agreement in Paris, Paris Trip, "Airpocalypses" in New Delhi and Beijing, Jiangsu High People's Court Delegation (by Bob Percival)

On December 12, 2015, 195 nations unanimously endorsed a new global climate agreement in Paris at the conclusion of the 21st Conference of the Parties to the UN Framework Convention on Climate Change (COP21).  An English version of the Paris Agreement can be accessed online at: http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.  Although the agreement had been widely anticipated for some time, it is a historic achievement because it commits virtually every country in the world for the first time to take action to control emissions of greenhouse gases (GHGs).  While it is well recognized that the intended nationally determined contributions (INDCs) each country made will not, taken together, be sufficient to meet the global target of keeping the rise in global temperatures well below 2 degrees Celsius, countries intend to strengthen their commitments every five years and a robust system of transparency and monitoring will be established to measure progress.  

Tomorrow the global blog “The Conversation” will feature a short article I was asked to write, which is entitled “Promises, Promises: How Legally Durable Are the Pledges the U.S. Made at the Paris Climate Conference?” (http://theconversation.com/promises-promises-how-legally-durable-are-obamas-climate-pledges-51786).  The article reviews why the U.S. emissions reduction pledge made in Paris is on solid legal ground. It notes that unless a president opposed to climate action is elected in 2016, it will be difficult, if not impossible, to reverse the U.S. commitment.  For decades the principal argument that opponents of U.S. action have used is that the U.S. should not act to control its GHG emissions because other countries like China are not required to do so.  Now that virtually every country in the world finally has agreed to control its emissions, it would be the height of folly for the U.S. to step back on its pledge.

I was among the estimated 40,000 people who were in Paris last week for the COP-21 negotiations.  Security had been tightened in the wake of the November 13th terrorist attacks there, but not to ridiculous levels.  On December 4 I participated in the inaugural Climate Law and Governance Day at La Sorbonne Law School.  Mary Robinson, former premier of Ireland, gave a wonderful opening keynote.   The conference was held near the Place du Pantheon where eight, 11-ton pieces of glacial ice had been placed to make a statement on climate change.  The ice came from Greenland and was arranged by artists in the shape of a clock.  On the left bank of the Seine Greenpeace, to protest Japan’s continued whaling, had erected a life size, 110-foot replica of the enormous whale Bluebelle that had been captured in the South Atlantic a century ago.  

In honor of COP-21 the “Scintillance” display of lights along the Champs-Élysées was powered by renewable energy from a solar display, a wind turbine, and electricity generated by humans riding stationary bicycles, walking on treadmills or swinging on swings along the avenue.  On December 7 I attended a conference on “Women on the Front Lines of Climate Change,” sponsored by the Women’s Earth & Climate Action Network International.  Speakers gave their perspectives on how climate change was affecting women throughout the world.  When one speaker decried the fact that the climate negotiations were dominated by “old white men in business suits,” I looked around the room and discovered that I probably was the only old white man in a business suit among the 150 people present.  Another speaker stated that the group’s purpose was “not to put down men, but to elevate women.”  I hope to have a folder of photos from my Paris trip available on this website by the time I make my next blog post.

One of the most important factors in the success of the Paris negotiations was the climate agreement between China and the U.S. announced in November 2014.  Both countries, who are the two largest emitters of GHGs, coordinated their negotiating stances, and when they differed a phone call last week from President Obama to Xi Jinping helped smooth things out.  Last March when I had the privilege of delivering the annual Wallace Stegner Lecture at the University of Utah I entitled it “Against All Odds: Why America’s Century-Old Quest for Clean Air May Usher in a New Era of Global Environmental Cooperation.” The thrust of my argument was that China so admires U.S. technology and its success in controlling air pollution, which remains an incredibly serious problem there, that it set the stage for the two countries cooperating on environmental issues which could help produce a breakthrough in Paris.  The University of Utah Press is in the final stages of editing my lecture for publication and its basic argument holds up well in light of the Paris Agreement.

Even as the nations of the world were negotiating a historic climate agreement, unbelievably bad air pollution blotted out the skies in New Dehli and Beijing.  Both countries imposed red alert, emergency measures in response to the pollution.  These included shutting down schools and businesses, urging people to stay indoors, and banning half the vehicle fleet from driving on alternate days.  These “airpocalypses” have occurred before, but because residents of Beijing thought progress was being made in reducing air pollution it particularly undermined public confidence there.

After returning to D.C. from Paris, I presented a day-long environmental workshop on Thursday December 10 to a group of 20 judges from the High People’s Court of Jiangsu Province.  The workshop, which was sponsored by the University of Maryland College Park’s Office of China Affairs, was held in College Park.  In the morning I provided a basic introduction to environmental law and in the afternoon I focused on who can sue to protect the environment and issues of environmental standing.  Jiangsu is the province where a court last year convicted 14 people of criminal offenses and fined six companies $26 million for discharging 25,000 tones of chemical waste into two rivers.   This was believed at the time to be the largest fine ever levied in China for environmental violations.

COP21 to Start in Paris, Japan to Resume Antarctic Whaling, Alberta Carbon Tax, Brazil to Seek $5 Billion for Tailings Dam Collapse (by Bob Percival)

World leaders are gathering in Paris tomorrow for the formal opening of the long-awaited 21st Conference of the Parties (COP21) to the UN Framework Convention on Climate Change.  It is widely anticipated that before the conference closes on December 11 a new global agreement will be adopted incorporating national plans to control emissions of greenhouse gases (GHGs).  The terrorist attacks in Paris on November 13 will deflect part of the leaders’ attention as some will be conferring to further coordinate the global response to terrorism.  Today Angola became the 184th country to submit its climate action plan ahead of the formal opening of the conference. In an effort to undermine President Obama’s negotiating position, Senate Majority Leader Mitch McConnell published a harshly critical oped. Mitch McConnell, Obama Takes His Reckless Energy Plan to the United Nations, Washington Post, Nov. 29, 2015 (https://www.washingtonpost.com/opinions/the-president-doesnt-have-the-power-to-sign-onto-international-environment-commitments/2015/11/27/924a45e8-92ee-11e5-a2d6-f57908580b1f_story.html).  McConnell argues that the President’s Clean Energy Plan is likely illegal (again citing Professor Laurence Tribe’s bogus arguments against it), opposed by a majority in Congress and likely to be revoked by a new Republican president.  

Japan sparked international outrage last week when it announced that it would resume whaling in Antarctic waters despite a March 2014 ruling by the International Court of Justice (ICJ) that its previous whaling activities had violated the global moratorium on commercial whaling.  International Court of Justice, Whaling in the Antarctic, Judgment of 31 March 31 2014 (http://www.icj-cij.org/docket/files/148/18136.pdf). Japan had argued that its whaling was legal because it was for “research” purposes, but the ICJ ruled that it was not essential to kill the whales to conduct research.  Japan’s whaling fleet plans to take an average of 333 minke whales per year for the next 12 years, one-third the level of the Japanese fleet’s catch prior to the ICJ ruling.  The governments of Australia and New Zealand, which brought the legal challenge in the ICJ, were joined by Britain in condemning Japan’s announcement.

On November 22, Rachel Notley, Premier of Canada’s province of Alberta, announced a “climate leadership plan” that includes a province-wide carbon tax.  Notley was joined at the announcement by the leaders of the largest companies that extract oil from Alberta’s tar sands, including Suncor Energy and Shell Canada.  Notley was elected premier of Alberta in a surprise electoral result that ended 40 years of conservative rule in the oil-rich province.  Shortly after taking office Notley appointed a five-member panel of experts to develop the climate plan. Although Alberta already has a small carbon tax on industrial users, the new plan will expand the tax to cover end users of energy as well.  The tax will be set at $20/ton of carbon in 2017,  increasing to $30/ton in 2018, and rising annually at a rate of inflation plus 2%.

Brazil’s environmental minister Izabella Teixera announced that the Brazilian government will file a lawsuit seeking more than $5 billion from the mining companies whose tailings dam collapsed in the state of Minas Gerais on November 5.  The collapse flattened the village of Bento Rodrigues, killing at least 13 people (11 are still missing) and engulfed the River Doce in an avalanche of 62 million cubic meters of mud and potentially toxic tailings.  Teixera called the collapse “the country’s biggest environmental catastrophe.” The collapse occurred at an iron ore mine owned by Samarco, a joint venture between global mining giants Vale and BHP Billiton. 

Obama Rejects Keystone XL, Montreal Protocol Focuses on HFCs, Finland Nuclear Waste Repository, Volkswagen Encourages Whistleblowers, U.S. Cuba Marine Agreement, Peabody Settlement (by Bob Percival)

On Friday November 6 President Obama announced that he had accepted Secretary of State John Kerry’s recommendation to reject TransCanada’s application to build the Keystone XL pipeline.  The decision ends a seven-year process during which the pipeline became a top political controversy with strong support from Republicans and opposition from every Democratic presidential candidate.  Announcing his decision, President Obama stated that "America is now a global leader when it comes to taking serious action to fight climate change, and frankly, approving this project would have undercut that leadership."  The President astutely noted that “for years, the Keystone Pipeline has occupied . . . an overinflated role in our political discourse.  It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter.  And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others.”

Meeting in Dubai, the parties to the Montreal Protocol on Substances That Deplete the Ozone Layer agreed to use the Protocol to phase down use of hydrofluorocarbons (HFCs).  In addition to being ozone-depleting substances, HFCs are powerful greenhouse gases.  The “Dubai Path” agreed to by all 197 UN member countries (who also are parties to the Montreal Protocol) will result in a formal amendment in 2016 to formalize the phasedown.   When President Obama first met Chinese President Xi Jinping in California in June 2013, the two countries agreed to pursue an HFC phasedown.  It is estimated that HFC phasedown will avoid the equivalent of emissions of100 billion tons of carbon dioxide.  Once again the Montreal Protocol will prove to be an even more potent mechanism for combatting climate change than the Kyoto Protocol was.

Last week the government of Finland issued a license for the construction of a high-level nuclear waste repository on Olkiluoto Island.  The Posiva repository, which will be the first of its kind in the world, is designed to hold the waste for 100,000 years.  The radioactive waste will be buried inside iron-and-copper capsules 400 meters underground. The capsules will be surrounded by clay barriers and capped with rubble and cement.   The Posiva repository is designed to hold up to 6,500 metric tons of waste, less than a tenth of the 70,000 tons of high-level radioactive waste currently at nuclear power plants in the U.S., which produce another 2,200 tons of waste each year. 

In an unusual move, the management of Volkswagen sent a memo to its employees offering them amnesty if they tell what they know about the emissions testing scandal that has engulfed the company.  The company promised that employees who provide information would not be fired or hit with claims for damages if they come forward by the end of the month.  Jack Ewing & Julie Creswell, Seeking Information, VW Offers Amnesty to Employees, N.Y. Times, Nov. 13, 2015, at B1. The company conceded that it could not provide amnesty from criminal prosecutions, but it noted that cooperation “speaks in the employees favor,” based on past experience.

On November 8 President Ollanta Humala of Peru approved the creation of a 3.3 million acre national park.  The Sierra Del Divisor National Park, which is larger than Yosemite and Yellowstone combined, is the final link in the 67 million acre Andes-Amazon Conservation Corridor.  The creation of contiguous protected areas in different countries will enhance protection for wildlife and other species in the corridor. 

On November 18 the U.S and Cuba signed an agreement pledging cooperation on marine research and protection issues.  Under the agreement, scientists with the U.S. National Oceanic and Atmospheric Administration (NOAA) who are responsible for marine sanctuaries in the Florida Keys and the Texas Flower Garden Banks national sanctuary will work with scientists from Cuba’s Guanahacabibes National Park and Banco de San Antonio in the westernmost part of Cuba.  This agreement has been hailed as opening the door to more extensive environmental cooperation between the two countries in the future.

On November 9 New York Attorney General Eric T. Schneiderman announced that he had settled charges against Peabody Energy for failing to disclose to investors and securities regulators what the company knew about the risks of climate change.  Peabody will not pay any financial penalty, but it agreed to make more detailed disclosures about the impact of climate change risks on the coal company’s future financial prospects.  The action was brought pursuant to New York’s Martin Act that forbids companies from making false representations to investors or securities regulators.  I was quoted in the press as saying that security disclosure requirements can be used as “truth serum” for corporations. David Hasemyer, Peabody Settlement Shows Muscle of Law Now Aimed at Exxon, Inside Climate News, Nov. 10, 2015 (http://insideclimatenews.org/news/10112015/peabody-coal-climate-change-settlement-new-york-ag-exxon-subpoena-investigation).

SEER Conference, Justice Asked to Investigate Exxon on Climate, TransCanada Seeks Suspension of Keystone XL Decision, China Coal Use Underestimated, Senate Tries to Veto WOTUS Rule (by Bob Percival)

On Friday October 30, I spoke on a panel at the 23rd Annual Fall Conference of the ABA Section on Environment, Energy and Resources (SEER) Law, which was held in Chicago.  The panel addressed “Key Developments in Global Environmental Law that U.S. Lawyers Need to Know.”  It apparently was the first time the ABA held a panel on the topic of global environmental law.  Joining me on the panel were Charles DiLeva, Chief Counsel for Environmental and International Law at the World Bank, and Professor Erin Daly from Widener University Delaware School of Law.  I discussed the evolution of the concept of global environmental law and how globalization is blurring traditional distinctions between public and private law and domestic and international law.  Charles discussed issues confronting the World Bank and the ongoing climate negotiations, while Erin focused on environmental provisions in the constitutions of various countries.

Last week more than 40 NGOs signed a letter to Attorney General Loretta Lynch calling for the Justice Department to investigate whether ExxonMobil tried to mislead the public over the threat of global warming and climate change.  Democratic Presidential candidates and members of Congress also called for such an investigation, comparing ExxonMobil’s funding of climate change deniers to historic efforts by the tobacco companies to conceal the risks of smoking.  ExxonMobil denies the charges, claiming that it has long participated in serious scientific efforts and now believes that “there is a definite risk from climate change.”

On November 2, TransCanada asked the U.S. government to suspend any decision on its application to build the Keystone XL Pipeline.  Some observers believe that this is a strategic move taken in anticipation that President Obama will decide against approving the pipeline.  TransCanada apparently believes that a more favorable decision may be reached if it is delayed until after a new President takes office in 2017.  However, word from the White House is that President Obama will decide on Keystone XL before leaving office, despite TransCanada’s request to suspend a decision.

New data show that China has been using 17% more coal than previously reported.  The revised data indicate that China has been emitting much higher levels of greenhouse gases (GHG) than previously thought. The discrepancy is more than one year’s emissions from the country of Germany.  The revised data were published by China’s statistical agency without fanfare.  The International Energy Agency stated that the new data will require it to revise upward its estimates of China’s coal use and GHG emissions. Chris Buckley, China Burns Much More Coal Than Reported, Complicating Climate Talks, N.Y. Times, Nov. 4, 2015.

On Tuesday November 3 I presented a day-long workshop on environmental law to 23 Chinese government officials from Sichuan Province.  The workshop was organized by the Maryland China Initiative and held at the University of Maryland-College Park.  The officials were particularly interested in how U.S. environmental law deals with heavy metal pollution.

On Wednesday November 4, the U.S. Senate voted 53-44 to use the Congressional Review Act in an attempt to veto EPA’s rule clarifying the reach of federal jurisdiction under the Clean Water Act.  EPA adopted what is known as the “waters of the U.S.” (WOTUS) rule in an attempt to clarify the mess left when the Supreme Court split 4-1-4 on the issue in its 2006 Rapanos decision.  Three Democrats joined all but one Republican Senator (Susan Collins of Maine) in voting to veto the rule.  The vote is largely symbolic because President Obama has promised to veto the resolution if it passes Congress.  The Congressional Review Act has only once been used successfully to veto an agency regulation, OSHA’s ergonomics rule issued in the final days of the Clinton Administration in 2001.  The OSHA rule was vetoed by Congress, a veto approved by new President George W. Bush.  Because agencies rarely adopt rules that are opposed by the President, the Congressional Review Act (CRA) is likely to work to veto rules only when there is a change of administration from one political party to another.  One pernicious feature of the CRA is that if a congressional veto is successful the agency is barred from issuing a similar regulation without advance approval from Congress.  That might mean that EPA would be precluded from adopting any other rules to clarify the jurisdictional confusion that has persisted for nearly a decade thanks to the Supreme Court’s inability to agree.  

Pollution from Fires in Indonesia, Clean Power Plan Published, FERC Supreme Court Argument, Interior Cancels Arctic Leasing, ACOEL Annual Meeting (by Bob Percival)

Air pollution from fires set for landclearing in Indonesia has now become so bad that the country’s military is assisting in fighting the fires and evacuating people from the most affected regions.  A spokesperson for Indonesia’s Meteorology, Climatology and Geophysics Agency described the fires as “a crime against humanity of extraordinary proportions.”  It is estimated that the fires have cost the Indonesian economy more than $30 billion while causing more than 500,000 cases of respiratory infections. Kate Lamb, “Indonesian Fires Labelled a ‘Crime Against Humanity’ as 500,000 Suffer,” The Guardian, Oct. 26, 2015.  The fires caused Indonesian President Joko Widodo to cut short a state visit to the U.S. on October 26.   Satellites operated by NASA have detected more than 115,000 fires in Indonesia, which on 26 days have released more greenhouse gases than the entire U.S. economy.

On Friday October 23, EPA’s Clean Power Plan was published in the Federal Register.  At least 17 separate lawsuits challenging the rule were filed in the D.C. Circuit on the same day the rule was published.  The state of West Virginia, joined by 23 other states, was the lead plaintiff in the first lawsuit filed. Industry trade associations, unions, and the states of Oklahoma and North Dakota also filed suits.  Several of these states and groups prematurely filed law suits last year before the rule, which regulates emissions of greenhouse gases from existing powerplants, even was adopted in final form.  These cases were dismissed as premature, but the new round of litigation is timely filed. The initial battle will be over whether the court should stay the rules pending the outcome of the litigation, which ultimately is likely to reach the U.S. Supreme Court.

On October 14, more than twenty students from three Maryland environmental law classes attended an oral argument at the U.S. Supreme Court in an important case involving efforts to encourage more efficient use of energy.  The case, Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association, involves review of a FERC order encouraging utilities to implement demand-response programs to reduce consumption of electricity at peak hours.  The students came from my Environmental Law class at the University of Maryland Carey School of Law, my Special Topics in Environmental Law course for undergraduates at the University of Maryland College Park, and Professor Joanna Goger’s Environmental Law course in the university’s Environmental Science and Policy Program. Following the oral argument, the students gathered for lunch at my home on Capital Hill, a short walk from the Court.  Because Justice Samuel Alito has recused himself from the case it is possible that the Justices will split evenly 4-4, affirming the decision below that invalidated FERC’s order.

On October 16 the U.S. Department of Interior announced that it was cancelling auctions that had been scheduled for the next two years for oil drilling rights in the Chukchi and Beaufort Seas off the northern coast of Alaska.  Interior Secretary Sally Jewell cited market conditions and Shell’s abandonment of its Arctic drilling program.  The government also denied requests for lease suspensions from Shell and Statoil, which means that their existing 10-year leases will expire in 2017 and 2020. 

From October 15-17 I participated in the annual meeting of the American College of Environmental Lawyers (ACOEL) in New York City.  The meeting featured a field trip to the World Trade Center where we were hosted for lunch by Silverstein Properties, developer of the site.  Columbia Law Professor Mike Gerrard, who has served as environmental counsel for Silverstein, organized a wonderful seminar on the environmental features of the buildings being built on the site of the 9/11 terrorist attack.  Harvard Law Professor Jody Freeman gave a terrific keynote presentation on EPA’s Clean Power Plan and upcoming legal challenges to it.  At the closing of the conference on October 17 Assistant Attorney General John Cruden and I presented our joint review of the top environmental law cases of the year and our preview of cases that will be heard in the upcoming year. 

On October 22, students from my Global Environmental Law Seminar presented the results of their study of whether Maryland should join the 22 states that have an environmental provision in their state constitution.  The study was presented to a multi-denominational group of religious leaders who had gathered for a conference “Awake and Arise: Congregations Restoring Creation” sponsored by the Ecumenical Leaders Group and the Central Maryland Ecumenical Council.  The conference was held at St. Mary’s Seminary in Baltimore. The students found that there are two major types of environmental provisions in constitutions: policy directives, which often are designed to protect natural resources, and environmental rights provisions.  While many constitutional provisions have been deemed primarily symbolic and not self-executing, others have had a significant aspect on environmental protection.  Although the students’ report does not make a formal recommendation, it lays out several options that should be considered in starting a conversation over a possible Maryland amendment.