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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Death of Justice Scalia, Clean Power Plan Stayed, ICAO Aircraft GHG Proposal, Cato Property Rights Forum, OAS (by Bob Percival)

On the afternoon of February 13 the shocking news spread that Supreme Court Justice Antonin Scalia had been found dead while on a hunting vacation in west Texas.  When I heard that the Justice had died south of Marfa, Texas near Big Bend National Park, my first reaction was that he died in one of the most beautiful parts of the world.  When I was a child my father took my family on a vacation camping in Big Bend and it is one of the most beautiful places I have ever been.  Justice Scalia was a truly amazing human being who was remembered by former President George W. Bush as someone who “brought intellect, good judgment and wit to the bench.”  When my former student Derrick Wang wrote the opera “Scalia/Ginsburg” (see July 15, 2015 blog post), Justice Scalia warmly received it

The last order of the Supreme Court in which Justice Scalia cast the decisive vote was issued on the afternoon of Tuesday February 9.  In an unprecedented action the Supreme Court shocked legal observers by voting 5-4 to block EPA’s Clean Power Plan (CPP) from taking effect.  Justices Ginsburg, Breyer, Sotomayor and Kagan dissented.  The Court’s decision was particularly surprising because the D.C. Circuit, which had expedited its hearing of legal challenges to the CPP, had unanimously denied a stay less than three weeks before.   In a piece I was invited to write for the global blog “The Conversation,” I suggested that the Court’s decision may be “Bush v. Gore for the environment.” See www.theconversation.com/in-blocking-epa-clean-power-plan-is-the-supreme-court-wading-deeper-into-politics-54513 The piece was reposted by the Real Clear Energy website: http://www.realclearenergy.org/2016/02/12/is_supreme_court039s_epa_stay_like_bush_v_gore_274504.html

Meeting in Montreal last week the environmental committee of the International Civil Aviation Organization (ICAO) recommended rules to require new aircraft to emit fewer greenhouse gases (GHGs).  The recommendations were criticized by environmental organizations because they would not require existing aircraft to offset their emissions in any way.  New aircraft would be required to reduce their emissions by 4 percent by in 2028 compared with emissions from aircraft delivered in 2015. The ICAO agreed to consider developing such regulations only after the European Union’s program to require airlines flying to and from the EU to pay emissions charges for their GHGs was upheld by the European Court of Justice.  The EU agreed temporarily to suspend enforcement of its aircraft emissions rules pending the development of a global program by the ICAO.

On Tuesday February 9 I spoke at the Cato Institute’s launch of a new book on property rights (Timothy & Cristina Sandefur, Cornerstone of Liberty: Property Rights in the 21^st Century).  I argued that environmental law actually protects property rights rather than infringing on them.  I disputed the book’s assertion that there is a “national property rights crisis” in the United States in the wake of the Supreme Court’s 2005 decision in Kelo v. City of New London.  l also defended EPA’s “waters of the U.S.” rule for determining what properties are wetlands subject to federal regulation under the Clean Water Act, by noting that the rule clarifies an area of law that is hopelessly confused in the wake of the Supreme Court’s 2006 decision in Rapanos v. United States.  I also condemned the authors’ call for overruling the Supreme Court’s famous snail darter decision (TVA v. Hill) where the Court upheld the new Endangered Species Act.  A video of the forum is available online at: http://www.cato.org/events/cornerstone-liberty-property-rights-21st-century-america-0

New research presented at the annual meeting of the American Association for the Advancement of Science (AAAS) calculates that 5.5 million people die annually from exposure to global air pollution. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  The country with the largest number of these deaths is China with India being the country with the second most deaths. The study estimates that 79,000 people in the U.S. die each year from respiratory diseases caused by air pollution and 218,000 people die each year in the EU from air pollution.  Darryl Fears, More than 5 Million People a Year Die from Polluted Air, Washington Post, February 13, 2016, at A3.

On February 11 Southern California Gas Company announce that the massive leak of natural gas north of Los Angeles that has been occurring for more than three months finally was capped, at least temporarily. It is estimated that the leak released two million tons of methane, a potent GHG, into the atmosphere.

This week the Organization of American States honored some officials who had contributed to the development of environmental jurisprudence in Central and South America.  Prior to the OAS awards ceremony on Thursday February 11, I spoke at a meeting at the Environmental Law Institute that focused on the development of a Global Judicial Institute for the Environment.  Among the judges who spoke at the meeting were Brazilian Supreme Constitutional Court Justice Antonio Benjamin, Argentina’s Chief Justice Ricardo Lorenzetti, and judges on EPA’s Environmental Appeals Board.  Some participants seemed in shock that the U.S. Supreme Court had stayed EPA’s Clean Power Plan.

Japan Proposes to Require Reprocessing of Nuclear Fuel, U.S. Opposes CPP Stay, Lumber Liquidators Lacey Act Fine, Methane Leak Charges (by Bob Percival)

The Japanese Ministry of Economy, Trade and Industry (METI) has proposed new legislation to revise regulation of spent nuclear fuel.  The bill will require nuclear power companies to reprocess all spent fuel and it bans all other methods of nuclear waste disposal.  The bill will establish special corporations who will charge the utilities for spent fuel reprocessing, which is very expensive and has been resisted by the utilities. Almost $18 billion has been invested in the construction of a reprocessing plant in Rokkasho, Japan, but it has been plagued by technical problems since beginning “test operation” in 2004.  This information comes from Professor Hiroshi Yoshida from the Tokyo University of Agriculture and Technology. 

On Thursday February 4 the Solicitor General filed a brief with the U.S. Supreme Court opposing a stay of EPA’s Clean Power Plan (CPP) pending the D.C. Circuit’s consideration of legal challenges to it.  The D.C. Circuit denied a stay on January 21, but several states, utilities and coal industry groups are taking the unusual step of asking the Supreme Court to intervene and issue a stay.  The Solicitor General argued that there is no precedent for the Court to grant the stay request and that deadlines established by the CPP will not take effect until long after the litigation is finished.  The government noted that the D.C. Circuit is giving the case expedited treatment and is likely to resolve the legal challenges by late summer or early fall.  While initial state compliance plans are due in September, states easily can obtain a two-year delay of this requirement and do not have to begin compliance until 2022 with full compliance not required until 2030. The government dismissed claims that the CPP unconstitutionally “comandeers” state power in violation of the Tenth Amendment, noting that any state simply can refuse to file a compliance plan and EPA will then adopt its own federal plan for the state.

Of February 1 a federal district court in Norfolk, Virginia imposed a $13 million fine on Lumber Liquidators for illegal importation of hardwood flooring in violation of the Lacey Act.  The fine is the largest ever under the Lacey Act, which prohibits the importation of lumber illegally harvested in another country.  The hardwood imported by Lumber Liquidators was illegally logged in eastern Russia in the protected habitat of the Siberian tiger.  It was then mislabeled and shipped through China to the United States.  The company pled guilty to the charges last October.  It will be placed on five years of organizational probation and must implement a government-approved environmental compliance plan that will include independent audits.

On Tuesday February 2 both the State of California and Los Angeles County filed charges against Southern California Gas Co., a division of Sempra Energy, for the massive methane leak that has been occurring since October at the company’s Aliso Canyon natural gas storage facility. The county’s charges include four misdemeanor counts of failing to report releases of hazardous materials while the state’s charges accuse the company of violating state health and safety laws by failing to control the release.  More than 20 private lawsuits also have been filed against the company.

On Tuesday February 9 I will be speaking at a luncheon program at the Cato Institute’s Hayek Auditorium to discuss a new edition of the book Cornerstone of Liberty: Property Rights in 21st Century America by Timothy and Christina Sandefur of the Pacific Legal Foundation and the Goldwater Institute.

States Ask Supreme Court to Stay CPP, Hungarian Court Acquits Defendants in 2010 Sludge Spill, EPI Released, China's Petroleum Price Stabilization Tax (by Bob Percival)

On January 26th, 25 states and four state environmental agencies asked Chief Justice John Roberts to issue a stay of EPA’s Clean Power Plan while the U.S. Court of Appeals for the D.C. Circuit considers their legal challenges to it.  On January 21 the D.C. Circuit denied the states’ request for a stay.  The Chief Justice asked EPA to file a response to the motion by Thursday February 4 at 3pm. Sixty electric utilities filed a separate stay application with the Chief Justice, who handles emergency requests originating in the D.C. Circuit.  When it denied the stay request, the D.C. Circuit agreed to expedite its consideration of the legal challenges and scheduled oral argument for June 2.

Last week a court in Veszprem, Hungary acquitted 15 employees of a Hungarian aluminum company that owned a dam that collapsed in 2010, spilling toxic sludge into the Tisza River and killing 10 people. The court found that the collapse of the reservoir wall could not have been foreseen by the defendants because it was caused by “loss of stability originating in the subsoil.” Greenpeace condemned the verdict, which resolves all criminal charges brought in the wake of the spill, including reckless endangerment and violations of waste management regulations.  Civil suits still remain against the company.  Hungary’s governing Fidesz party and opposition parties condemned the verdicts and urged prosecutors to appeal them.

At the World Economic Forum in Davos, Switzerland, Yale University released its 2016 Environmental Performance Index (EPI), which seeks to rank countries on how well they protect the environment.   The report found overall improvements in reducing the health impacts of pollution and improving access to drinking water and sanitation, but “troubling declines” in global fisheries and air quality.  Finland topped the list, while the United States ranked #26, China #109, and India #141.  A copy of the report is available online at: http://issuu.com/2016yaleepi/docs/epi2016_final/1?e=23270481/32968129

Several media outlets have been questioning whether the plunge in global oil prices will undercut the pledges to reduce greenhouse gas emissions made in Paris last December.  Several countries have taken advantage of the oil price decline by reducing or eliminating energy subsidies.  The New York Times reports that China has adopted what appears to be the most progressive policy of all by essentially adopting a petroleum price stabilization tax, a measure I have long recommended.  China has placed a floor under the price of gasoline and diesel as though the world price of oil still was at $40 a barrel. The extra profits from this price floor go to a fund to finance energy conservation and pollution control. Clifford Krauss & Diane Cardwell, Climate Deal’s First Big Hurdle: The Draw of Cheap Oil, N.Y. Times, Jan. 25, 2016.  Professor Zhao Huiyu of Shanghai Jiatong University notes that the Ministry of Finance’s State Administration of Taxation has issued a series of decrees to implement the new policy whose purpose is described by them as “to promote environmental governance, energy conservation, and emission reduction.”

On Wednesday January 27 Commander Mark P. Nevitt and I gave a luncheon talk to the Maryland faculty on “Polar Opposites: Should Arctic Environmental Governance Follow the Antarctic Model?” Mark, who formerly was the regional counsel responsible for environmental compliance by the U.S. Navy in the Mid-Atlantic region, now is a Pentagon official.  We presented the preliminary results of our research, which will become a law review article, comparing environmental protection of Antarctica with the Arctic model.  The Antarctic Treaty, which was signed in 1959 and entered into force in 1961, and its Madrid Protocol, which was signed in 1991 and entered into force in 1998, suspend claims of sovereignty over Antarctica and strictly protect its environment.  The Arctic is not governed by a similar treaty, but the eight nations with sovereignty over it use the Arctic Council seeking to coordinate policy, another example of the growth of “global environmental law.”  In the afternoon Mark and I gave a lecture on the same topic to my Global Environmental Law seminar and then we were joined by several students for a happy hour near campus.

On Thursday January 28 I was interviewed by Jeremy Tordjman from the Agence France-Presse about whether Volkswagen’s emissions test cheating and lead in drinking water in Flint, Michigan were the result of budget cutbacks and gaps in U.S. environmental law.  Instead I argued that they both illustrate the wisdom of encouraging civil society groups to serve as a backstop when government agencies fail to protect the public.  See “Volkswagen, Flint Point to Weakness in U.S. Environmental Protections,” Agence France-Presse, January 31, 2016, online at: http://news.yahoo.com/volkswagen-flint-point-weakness-us-environmental-protections-081901452.html.

DC Circuit Refuses Stay of Clean Power Plan, Supreme Court Upholds FERC Demand-Response Rule, IUCN Academy Meeting (by Bob Percival)

On January 21 the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA’s Clean Power Plan regulations requiring states to develop plans to control greenhouse gas (GHG) emissions from existing power plants.  The decision was unanimous by a panel consisting of Judges Rogers, Henderson and Srinivasan.  The panel did agree to expedite consideration of the litigation challenging the legality of the plan.  Oral argument is scheduled for June 2, 2016.  In an interview I gave to Law360 I predicted that the D.C. Circuit ultimately will uphold EPA’s regulations. Ketih Goldberg, D.C. Circuit Panel Tapped for CPP Fight Gives EPA Early Edge, LAW360, Jan. 22, 2016, online at: http://www.law360.com/articles/720999/dc-circ-panel-tapped-for-cpp-fight-gives-epa-early-edge

On January 25 the U.S. Supreme Court surprised most observers by upholding a demand-response regulation issued by the Federal Energy Regulatory Commission (FERC) to encourage large users of electricity to reduce their consumption during peak hours.  The surprise was that the decision was by a 6-2 vote with Chief Justice Roberts and Justice Kennedy joining the four Justices (Ginsburg, Breyer, Sotomayor and Kagan) who are most sympathetic to environmental regulations.  Justice Alito recused himself from the case. The oral argument in this case was described in my October 27, 2015 blog post.  It was the subject of a field trip for students in my Environmental Law classes in College Park and at the law school last fall.  Based on the oral argument, none of my students predicted that the D.C. Circuit would be reversed.  

In her majority opinion for the Court, Justice Kagan found that the Federal Energy Regulatory Commission unambiguously has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. The Court majority also held that the U.S. Court of Appeals for the D.C. Circuit erred in holding that the rule issued by the Federal Energy Regulatory Commission is arbitrary and capricious.  Justice Scalia wrote a dissenting opinion joined only by Justice Thomas.  I believe that this surprising decision may be enormously significant as a signal that the Chief Justice and Justice Kennedy understand the importance of the transition the U.S. is making to a more efficient, greener energy infrastructure.  It certainly bodes well for the chances of EPA’s Clean Power Plan being upheld by the U.S. Supreme Court.

I spent Friday January 22 in New York City.  In the morning I participated in a meeting at United Nations Headquarters hosted by the IUCN’s Permanent Observer to the UN, David O’Connor for members of the governing board of the IUCN Academy of Environmental Law.  Gabriele Goettsche-Wanli, Director for the Division of Ocean Affairs and the Law of the Sea in the UN’s Office of Legal Affairs, discussed the launch of negotiations for a legally binding instrument on conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.  The hope is that the negotiations will produce an instrument by the end of 2017 that can be considered by the UN General Assembly in 2018.

In the afternoon I moderated a program on “Comparative Environmental Law: Regional Insights” at the Pace Midtown Center.   The program included fascinating presentations from professors about new developments in environmental law in several countries.  These included discussions of the Supreme Court of Brazil’s recognition of “moral harm” to the environment (which sounds like a kind of increased risk cause of action), the Turkish Council of State halting the Green Road Project at the behest of the environmental NGO Tema, and Singapore’s use of burden-shifting laws to combat transboundary pollution from fires in Indonesia.  

The massive snowstorm that hit the east coast on Friday and Saturday stranded me in New York until Sunday.  It has resulted in the cancellation of classes at the University of Maryland Carey School of Law until Wednesday.  Fortunately, I am not teaching on Mondays or Tuesdays this semester.  

U.S. Sues VW, TransCanada Sues over Keystone XL, Record Investments in Renewables, Pause in Federal Coal Leasing (by Bob Percival)

On January 4th the U.S. Department of Justice filed a civil suit against Volkswagen for its extensive use of software that defeated emissions tests on its diesel vehicles.  The complaint alleges that 499,000 cars sold in the U.S. between 2009 and 2015 emitted much higher levels of pollution than test data showed.  The Justice Department is seeking both an injunction to stop the cheating and civil penalties that will range into the billions of dollars.  More than 450 private lawsuits have been filed against Volkswagen.  These have been consolidated in the U.S. District Court for the Northern District of California.  Several state attorneys general have complained that Volkswagen is refusing to comply with their discovery requests, citing German privacy law.  

EU regulators are now realizing that their ability to uncover cheating on emissions tests is not as advanced as in the U.S.  They are seeking greater authority to monitor actual emissions.  Jim Brunsden, Brussels Seeks More Powers to Monitor Carmakers Emissions, Financial Times, January 6, 2016, at 2.  Tesla founder Elon Musk wrote a letter to the California Air Resources Board suggesting that Volkswagen should not be required to retrofit existing cars with better pollution control devices, but rather should be required to accelerate its development of electric cars. Musk argues that this is the best way to mitigate the damage to the environment caused by the Volkswagen vehicles.

On January 6 TransCanada filed a lawsuit in federal court challenging President Obama’s rejection of the Keystone XL pipeline.  The company also announced that it will file a petition challenging the pipeline rejection as a breach of U.S. obligations under the North American Free Trade Agreement (NAFTA).  Opponents of the new Trans Pacific Partnership trade liberalization agreement quickly seized upon the latter to argue that it illustrated how trade agreements can jeopardize implementation of environmental measures.

Bloomberg New Energy Finance estimates that 2015 was a record year for investment in renewable energy projects even as the price of fossil fuels plunged.  A total of $329 billion was invested in wind, solar, and biomass energy projects (large hydropower projects were not counted in Bloomberg’s analysis).  More than one third of these investments were made in China, where $110.5 billion in renewable investments were made. A total of $56 billion was invested in projects in the U.S.  Chris Mooney, Clean Energy Is Expanding Even with Cheap Fossil Fuels, Washington Post, Jan. 15, 2015, at A14.

The Saudi government is joining what several other countries have done by taking advantage of plunging oil prices to cut energy subsidies it provides to its citizens.  Adam Taylor, Saudi Arabia Tightens Its Belt as Cheaper Oil Pulls Down Revenue, Washington Post, January 3, A16.

Last week President Obama announced that the federal government would temporarily suspend leasing of coal deposits on federal lands.  The moratorium is designed to give the government time to determine whether criticisms that it is selling federal coal deposits for below market rates.  Obama’s action is yet another indication of the administration’s efforts to promote a shift in the U.S. energy infrastructure away from fossil fuels, a theme the President reiterated in his State of the Union Message last Tuesday.

After my last blog post on the top ten developments in environmental law in 2015, I have concluded that there are two other events I should have mentioned: the UN’s adoption of new sustainable development goals in September and the move to phase out HFCs by the parties to the Montreal Protocol.

From January 6-10 I attended the annual conference of the American Association of Law Schools (AALS). On January 7th I participated in a field trip to the United Nations sponsored by the International Law Section of the AALS.  Chile’s UN Ambassador gave a luncheon address that reviewed some of the work he performed in monitoring the application of sanctions to African countries while Chile was a member of the UN Security Council last year.

On Friday January 15, the U.S. Supreme Court announced that it would review an obscure takings decision.  In Murr v. Wisconsin, No. 15-214, the Court may address the long-suffering “parcel as whole” issue in regulatory takings doctrine in the context of a property that was subdivided.  The question presented in the case is whether in a regulatory taking case, the "parcel as a whole" concept described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), establishes a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for purposes of takings analysis.

The lead poisoning crisis in Flint, Michigan, intensified last week as Michigan Governor Rick Synder called out the National Guard to help distribute bottled water to citizens whose drinking water is polluted with lead. President Obama also issued an emergency declaration.  The crisis arose when the city of Flint decided to use the Flint River for its drinking water instead of receiving its drinking water from Detroit.  The new water source corroded lead pipes and resulted in significant quantities of lead in the city’s drinking water.  Allegations that government officials knew about the lead poisoning but failed to take action are now being investigated.

Some updates on my previous work follow.  A video of the joint presentation I made with John Cruden, the Assistant Attorney General for the Justice Department's Environment and Natural Resources Division, on "Leading Cases and Other Highlights of the Past Year" is now available on Vimeo at https://vimeo.com/148115157.  Our presentation was to the annual meeting of the American College of Environmental Lawyers in New York. We reviewed the top developments in environmental law in 2015 and make some predictions concerning what will be the top cases in 2016.  

I am the featured guest on the "Justice on Trial" podcast, discussing the Paris Climate Agreement.  See “Paris Climate Change Agreement,” Justice on Trial Podcast: Episode 14, Jan. 4, 2016 (http://jotpodcast.com/justice-on-trial-podcast-14-climate-change).

My New Republic/The Conversation piece on the legal durability of U.S. pledges at the Paris climate conference has now been translated into Chinese.  The Mandarin version now appears on several Chinese websites, including:

China Economic Net, Dec. 28, 2015, available online at: : http://intl.ce.cn/specials/zxgjzh/201512/28/t20151228_7909236.shtml

China Daily, Dec. 28, 2015, available online at: a http://cnews.chinadaily.com.cn/2015-12/28/content_22843166.htm

163 News, Dec. 28, 2015, available online at: http://news.163.com/15/1228/17/BBUIN59N00014JB5.html

China Ministry of Industry and Information Technology (MIIT), Center for International Economic and Information Technology (MIIT), Center for International Economic and Technological Cooperations (CIETC), Dec. 30, 2015, available online at: http://mp.weixin.qq.com/s?__biz=MzAwNDcxNDE1Mw==&mid=402615351&idx=1&sn=1a6e44aa17825fccd5730f303b6b9382&3rd=MzA3MDU4NTYzMw==&scene=6#rd

China University of Political Science and Law, Environmental Law Research Institute, Jan. 7, 2016, available online at: http://mp.weixin.qq.com/s?__biz=MzA4OTk2ODk5Mw==&mid=401481377&idx=2&sn=fb872ba1db682ecc7d33fb9d64ad8a3a&3rd=MzA3MDU4NTYzMw==&scene=6#rd Technological Cooperations (CIETC), Dec. 30, 2015, available online at: http://mp.weixin.qq.com/s?__biz=MzAwNDcxNDE1Mw==&mid=402615351&idx=1&sn=1a6e44aa17825fccd5730f303b6b9382&3rd=MzA3MDU4NTYzMw==&scene=6#rd

China University of Political Science and Law, Environmental Law Research Institute, Jan. 7, 2016, available online at: http://mp.weixin.qq.com/s?__biz=MzA4OTk2ODk5Mw==&mid=401481377&idx=2&sn=fb872ba1db682ecc7d33fb9d64ad8a3a&3rd=MzA3MDU4NTYzMw==&scene=6#rd