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Author: Robert Percival

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INSIDE THE COURT FOR TODAY’S AFFORDABLE CARE ACT ARGUMENT

I just returned from this morning’s oral argument in Department of HHS v. Florida, the challenge to the constitutionality of the Affordable Care Act (ACA). This week the Court is devoting three full days (six hours) of argument to the case, the most in half a century. The case has been a constitutional law professor’s dream because it illustrates the application of so many issues we cover in the course, including standing, the commerce power, the tax and spending powers, and theories of constitutional interpretation. I have had my first year Con Law students read the decisions below and the principal briefs before the Court and we devoted two full days of class to a roleplaying exercise where the students argued the issues.

This morning when I arrived at the Court at 7:30am there was a very lengthy line outside the Court building even for members of the Supreme Court Bar. When I saw the line I figured that I would not have a chance to get a seat in the bar section, but I at least would be able to listen to live audio of the arguments in the Lawyer’s Lounge. However, many people in the bar line were members of the press and the line shrunk quickly when they were ushered into the building. Also the Court wisely decided for today’s session to entertain no admissions for new members of the Supreme Court bar, freeing up extra seats in the bar section. I received ticket #47 and by 8:45am I was seated in the courtroom with other members of the Court’s bar. Sitting next to me was a state legislator from Maine who had flown to D.C. for the argument. She reported that when she arrived at the Court at 5:20am she was the thirteenth person in the bar line and that many of the people in front of her had been paid to wait in line for other bar members.

I was seated directly in front of the press section, which was filled to overflowing by 9:30am. Being a fly on the wall to conversations among the veteran reporters who cover the Court was interesting. One mused that he could create a stampede from the bar section simply by announcing that he was looking for experts to comment on the case. Another vowed dire consequences “if one more public relations person from a fourth-tier law school calls me to insist that I have to talk to some associate professor about this case.” Considerable chatter occurred concerning which prominent officials were in the Court (“Justice said Eric Holder will be here, but I don’t see him.”).

When the Justices took the bench at 10am, Justice Scalia announced the Credit Suisse Securities decision on the running of a statute of limitations in securities litigation. He went into great detail about the case, taking ten full minutes and causing many in the press and bar sections to roll their eyes. Chief Justice Roberts then in three minutes succinctly explained the Court’s Zivotofsky decision, holding that the constitutionality of a statute requiring the State Department to list people born in Jerusalem as having been born in Israel is not a political question.

The argument then got underway. The Court has divided the three days of argument by subject matter. The main event will be tomorrow when the Court focuses on the constitutionality of the individual mandate, the requirement that everyone purchase health insurance. This is the portion of the ACA that was struck down by the 11th Circuit as exceeding Congress’s power under the commerce clause. Today’s argument focused on whether the Anti-Injunction Act, a statute that dates from 1867, barred the Court from hearing challenges to the ACA because of its requires that taxes first be paid before their legality can be challenged in court. The only penalty the ACA provides for failing to purchase health insurance is that an extra payment must be made on one’s income tax return with the payment roughly designed to reflect what the cost of insurance would have been. Because the Solicitor General has taken the position that this payment is not covered by the Anti-Injunction Act, the Court appointed Robert A. Long, Jr. as special counsel to make that argument. Thus, today’s argument was divided into three parts.

Long argued first that the Anti-Injunction Act applied and deprived the Court of jurisdiction to hear the case until after payments for failure to buy insurance became due in 2015. Solicitor General Donald B. Verrilli, Jr. then argued that the Anti-Injunction Act did not apply to this case, but that in cases where it did apply it should be considered to be a jurisdictional bar. Gregory G. Katsas, representing the states challenging the constitutionality of the ACA, argued that the penalty was not a tax barred by the Anti-Injunction Act and that the government had properly waived any argument to that effect.

Based on the questions from the Justices, it seems most unlikely that the Court will use the Anti-Injunction Act rationale to postpone for a few years a decision on the constitutionality of the ACA. Several Justices noted that when the constitutionality of the Social Security Act was challenged 75 years ago in Helvering v Davis, the government waived application of the Anti-Injunction Act, something it could not do if the Act were a jurisdictional bar. Solicitor General Verrilli said the Court need not decide the jurisdictional issue if it agreed that Congress did not intend to subject the ACA to the Anti-Injunction Act. Justice Kennedy brought down the house when he replied, “Don’t you want to know the answer anyway?”

Thirteen minutes into the argument all Justices but Justice Thomas had asked questions. Thomas did not ask any questions. He has not asked a question at oral argument for six years, though some have speculated that tomorrow he may do so when the focus is on the constitutionality of the individual mandate. The Justices did not tip their hands today about how they felt concerning this constitutional issue.  Justice Alito did chide the Solicitor General for arguing today that the sanction for failing to purchase insurance is not a tax, while arguing tomorrow that it is. In one exchange between Justice Kagan and the Solicitor General, Kagan kept referring to the “penalty” while Verrilli kept answering by referring to the “tax.” When the Chief Justice noted that they were using different terms, Verrilli switched to “tax penalty” as a compromise.

Tomorrow the government is making the argument that the individual mandate is constitutional as an exercise of both the commerce and the taxing powers. The tax power is implicated because the only sanction for violating the mandate is payment of a penalty on one’s income tax. Opponents of the mandate argue that it never would have been adopted by Congress if it had been advertised as a tax. However, there is precedent that even measures not specifically called “taxes” can be upheld under the taxing power in certain circumstances.

The upshot of today’s argument is that the Court is most unlikely to use the Anti-Injunction Act to duck a decision on the merits of the constitutional issues. Thus, tomorrow is the main event (Wednesday’s argument will be devoted to severability and the sleeper issue of whether the Medicaid expansion is unconstitutionally coercive of the states). I will not be attending the argument tomorrow because I have a morning class in Constitutional Law, but my class and I certainly will continue to follow this case closely.

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The Rule of Law with “Chinese Characteristics”

I spent last week in China leading a spring break trip for 38 of my current and former environmental law students. I had warned the group that they would be shocked by how polluted the air was and that tap water was not safe to drink even in the best hotels. But when we arrived in Beijing the skies were the clearest I had ever seen during my 21 previous trips to China (including the six months I lived in Beijing in 2008 while teaching at the China University of Political Science and Law (CUPL)). Alas, the clear skies were not the result of dramatic environmental improvements in China. Instead they were the product of 40-50 mph winds that temporarily had blown away the pollution, which soon returned.

On the morning of our first full day in China our initial stop was Tiananmen Square, site of the 1989 massacre of pro-democracy protesters. Our group was allowed to bypass the security screening that the Chinese public must undergo before entering the square. While posing for a group photo, I was surprised when a member of our group unveiled a large banner that read “Thank You, Suzann” to honor our program coordinator who helped organize the trip. Fearing that this was some kind of political protest, Chinese police immediately converged upon our group. Our local guide started shouting that we might get arrested. But the confrontation was averted when we rolled up the banner and the police accepted our explanation. But it was a quick reality check on the limits of free speech in China today.

During our nine days in China our group visited public interest groups, law firms, and law schools in addition to tourist sites in Beijing, X’ian and Shanghai. In our meetings with Chinese students, lawyers, and law professors the group gained some insights into what it is like to operate in a legal system without an independent judiciary or a tradition of respect for the rule of law. One lawyer at a Chinese law firm in Shanghai described it as “the rule of law with Chinese characteristics.”

The public interest movement in China remains deeply frustrated because Chinese courts frequently refuse to accept even the most meritorious lawsuits. I spoke about the BP oil spill settlement at a workshop organized by the All China Environment Federation (ACEF), a group of environmental lawyers founded in 2005. ACEF represents a group of 107 fishermen who were harmed by last summer’s ConocoPhillips oil spill in Bohai Bay. But the Tianjin Maritime Court has refused to accept their lawsuit. Our group also visited the Center for Legal Assistance to Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China.

Zhang Jingjing from the Public Interest Law Network’s Beijing office, who has been dubbed “the Erin Brockovich of China,” met with our group and expressed hope that the National People’s Congress eventually would adopt new legislation to facilitate public interest lawsuits. Our group also met with Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education.

There are now more than 20,000 lawyers in Beijing and 14,000 in Shanghai. We visited a U.S. law firm’s Beijing office and a Chinese law firm’s Shanghai office where we had remarkably candid discussions of the challenges of legal practice in a country where politics trumps law. The U.S. law firm is not licensed to practice law in China so it hires Chinese law firms to implement its work product. It prefers to avoid the Chinese courts by using arbitration whenever it can. Aware of the Foreign Corrupt Practices Act, the U.S. lawyers have the Chinese law firms they hire sign non-corruption pledges.

The Chinese law firm in Shanghai hosted our group for its Friday afternoon discussion session. Their members explained that judges in China do not have to be lawyers and many of the most prominent judges are not lawyers, but rather were selected because of their strong ties to the Communist Party. Witnesses rarely come to court in China even when they are asked to do so. Disputes over siting new industrial plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for power plants and new industries usually are made without consulting the public and there is little chance for lawyers to block them in court. When they are blocked, it invariably is due to the ability of opponents to generate sufficient public opposition to a project, rather than due to enforcement of the environmental laws.

There is some sense that change is in the air, a perception encouraged by China’s upcoming leadership transition and Premier Wen Jiabao’s public pleas for greater political and economic reform. The Chinese law students we met were hopeful that one day China will have an independent judiciary and strong respect for the rule of law. These students included moot court teams from CUPL and the Beijing Institute of Technology who did a practice round for us in advance of their coming to the U.S. to compete next weekend in the finals of the Stetson International Environmental Moot Court Competition.

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Disenfranchised in the District

July 2012 will mark my 33rd anniversary of living in the heart of the District of Columbia. An Iowa native, I moved to D.C. in 1979 to take a one-year clerkship, fully intending to move back to my adopted state of California when the clerkship ended. I clerked for Justice Byron White, the only Supreme Court Justice whose name my father recognized (due to the Justice ’s remarkable athletic career). I rented a Capitol Hill townhouse to be within walking distance of the Court. Despite interviewing only with California public interest groups for post-clerkship employment, I never left D.C. because my new employer — the Berkeley office of the Environmental Defense Fund (EDF) — acceded to a request from the group’s headquarters to lend the D.C. office a new lawyer to help fight the incoming Reagan administration.

Today I find myself still living on Capitol Hill just four blocks away from my first apartment. Over the decades the neighborhood has gentrified, real estate prices have soared, and Hill residents have stopped moving to the suburbs when their children reach school age. Cool new restaurants have sprung up in the neighborhood and, despite dirty tricks by a competing owner to the north, baseball is back. But two things have not changed: political candidates of both parties continue to vilify Washington and I and my family still have no voting representation in Congress.

During his 2008 presidential campaign, Barack Obama, who as a Senator lived in an apartment three blocks from my home, had nothing but harsh words for Washington. After taking office, he refused the invitation to throw out the first pitch at the Washington Nationals 2009 season opener — in my view one of his few mistakes of that year (to his credit, he realized the error of his ways and threw out the first pitch in 2010). The ranks of politicians who settle in D.C. after retiring are legion, and they include many who denounced the District on the campaign trail and piously promised to move back home when their terms were completed (remember the fierce insistence of Bob Dole, who now works for a D.C. law firm, that he would return to Russell, Kansas if defeated in 1996?).

To be sure, people of good will have worked hard to end the injustice of D.C’s disenfranchisement. In February 2009 a bill to expand the size of the House of Representatives by two and to award the two new seats to Utah and the District passed the Senate by a vote of 61-37. But it ultimately was scuttled when the NRA, not content with the Supreme Court’s Heller decision striking down D.C.’s handgun ban as violative of the Second Amendment, insisted that the price of voting representation should be a wholesale repeal of D.C.’s gun control.

In today’s toxic political climate there seems little chance of progress in ending this injustice. In September I met Mark Meckler, the founder of the Tea Party Patriots, at Harvard’s Law School’s Conference on the Constitutional Convention. He had just given a speech passionately asserting that the Tea Party actually was non-partisan and non-ideological. I pointed out to him that the original Tea Party was about taxation without representation, the phrase that now appears on D.C. license plates as a protest against our disenfranchisement. If the Tea Party truly were non-partisan and non-ideological, one would hope that voting representation for D.C. in Congress would be one of their top priorities. But I am not that naïve.

I freely admit that in one respect I am grossly overrepresented in our electoral process thanks to the 23rd amendment. The 23rd Amendment gives the District 3 electoral votes, the number of electors “to which the District would be entitled if it were a State.” That means we have 1 electoral vote for every 200,000 D.C. residents at the time of the 2010 census (when 601,723 people lived in the District). By contrast Texans have only 1 electoral vote for each 661,000 residents (a population of 25,145,000 divided by 38 electoral votes) – do I hear howls of outrage from Republican presidential candidates (no Republican candidate has received even 10% of the D.C. vote since 1988)? But the outrage can be bipartisan — Californians have only one electoral vote for every 677,000 people (55 electoral votes and a population of 37,254,00). Only one state – Wyoming – is more overrepresented than D.C. in the process of electing our presidents – it has one electoral vote for each 188,000 residents (3 electoral votes for 563,626 residents).

This seeming inequity is a product of Article II, Section 1 of the Constitution that assigns electoral votes not on the basis of population, but rather on the basis of the number of Senators and Representatives that each state has in Congress. Since even small states like Wyoming have two Senators, their impact in the Electoral College is unduly magnified. Should this be changed? One answer, of course, would be to amend the Constitution to scrap the Electoral College and elect Presidents by popular vote. I erroneously thought the public would demand this change after the 2000 election when the candidate elected president by the Electoral College received more than 543,000 fewer votes than his opponent.

How did the 23rd Amendment come to be adopted? The surprising answer is that a bipartisan coalition led by Republicans championed its passage. Republican Senator Prescott Bush of Connecticut (father of President George H.W. Bush and grandfather of President George W. Bush) led the charge with the support of Republican President Dwight D. Eisenhower. Congress proposed the amendment on June 17, 1960, and it was ratified by 38 states less than 10 months later. Forty states eventually ratified the amendment – all but Florida, Kentucky. Mississippi, Georgia, South Carolina, Louisiana, Texas, North Carolina, and Virginia (Arkansas was the only state to vote against ratification – but hey, at least they gave us a vote). Rumor has it that part of the impetus for the amendment was Cold War claims by the Soviet Union that the U.S. was denying human rights to District residents. (In 2003 the Inter-American Commission on Human Rights of the OAS concluded that D.C.’s disenfranchisement was a violation of the American Declaration on the Rights and Duties of Man, but the OAS does not have a nuclear arsenal).

Senator Prescott Bush did not want to stop with the 23rd Amendment. He also supported giving the District full voting representation in Congress. Republicans like Bob Dole (“in justice we could do nothing else”), Howard Baker, and even Richard Nixon (after he resigned) endorsed voting representation for the District in Congress. A subsequent effort was made to amend the Constitution to give D.C. full voting representation in Congress (2 Senators and 1 Representative). The District of Columbia Voting Rights Amendment was proposed by two-thirds majorities of Congress in August 1978. However, the proposed amendment died when only 16 states ratified it before its seven-year expiration date.

Over the years we District residents have regularly had to endure Congressional intervention to bar us from spending our own tax money on things like lobbying for D.C. voting rights, funding abortions for women too poor to afford them, and even counting the votes in the initial referendum we held on legalizing medical marijuana. My own favorite outrage is when President George W. Bush in his 2005 State of the Union Message touting his efforts to spread democracy around the world boasted that because of the invasion of Iraq, residents of the Iraqi capital of Baghdad could now vote for members of their National Assembly. D.C. Mayor Anthony Williams, who was sitting in the gallery, should have walked out in outrage.

It would be nice if persons of principle from all ends of the political spectrum stepped up and spoke out for D.C. voting rights like Senator Prescott Bush did. But I’m enough of a realist to understand that only a truly cataclysmic event could change the political dynamic to favor voting representation for the District. I just hope that it will not be something on the order of a devastating terrorist assault on my beloved neighborhood (which fortunately was averted on 9/11 by the brave souls on United Flight 93). Nevertheless, I continue to feel that it is my duty as a D.C. resident to start every talk I give before a Federalist Society audience by raising the issue. Years ago, I would have someone come up to me after my talk to say, “You don’t understand – D.C. is not a state.” However, the last time I mentioned it I heard instead, “You know, Ken Starr, who is on our board, agrees with you.” Perhaps this is progress.

I do have a few modest requests. First, it would be nice to hear someone mention this issue in the current presidential campaign – it does not seem to be on President Obama’s radar screen – after all no candidate wants to be accused of favoring anything connected to Washington. Second, could a few brave politicians at least try to re-focus their anti-Washington campaign rhetoric on our guests who run Congress and the executive agencies (many of whom will grow to love the District and stay here after they retire) and NOT on the city that we residents love? And DON’T try to tell me that we voluntarily chose to be disenfranchised simply because we moved to the District to serve our government and liked it so well that we never left.

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The Environment Goes 0 for 5 in the 2008-2009 Supreme Court Term

Yesterday the U.S. Supreme Court concluded its 2008-2009 Term. A week ago the Court decided the last of the five environmental cases it heard this Term. The environmental cases involved issues arising under the National Environmental Policy Act, the National Forest Management Act, the Clean Water Act, and the Superfund legislation. In each of these cases the environment lost. The winners were the U.S. military (Winter v. NRDC), the timber industry (Summers v. Earth Island Institute), electric utilities (Entergy Corp. v. Riverkeeper, Inc.), the mining industry (Coeur Alaska v. Southeast Alaska Conservation Council), chemical companies and railroads (Burlington Northern and Santa Fe Ry. Co. v. U.S.). The losers were marine mammals, the national forests, fish living in proximity to power plants and mines, and taxpayers stuck with paying for cleaning up contaminated land.

When a baseball player goes 0 for 5 he has had a bad day. Usually it is quickly forgotten. Few recall Lou Pinella going 0 for 5 in his final game as a Yankee (though he did get the game-winning RBI by not being doubled up at first on a groundout) or Melvin Mora going 0 for 5 in his first game after becoming the father of quintuplets. But 0 for 5 for the environment in the Supreme Court is not so easily dismissed.

For one thing, five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.

Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.

Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.

The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.

Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.

Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.

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Climate Change Legislation

On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act of 2009, a bill to establish a far-reaching program to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212 with only eight Republicans voting in favor of the bill and 44 Democrats opposing it. The bill adopts a cap-and-trade program designed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050.

The bill seeks to fulfill an important campaign promise by President Obama by having the U.S. join the ranks of all other developed nations who have committed to control their GHG emissions to reduce the severity of climate change. President Obama has asked Congress to enact such legislation by December when the nations of the world will meet in Copenhagen to adopt a successor to the Kyoto Protocol.

To win acceptance in the House many compromises had to be made. Instead of auctioning off all emissions allowances, as President Obama had advocated, the bill distributes 85% of them for free to various entities, including electric utilities, in order to reduce their compliance costs. To mollify farm interests, it gives the Department of Agriculture, instead of EPA, responsibility for certifying by projects that offset GHG emissions. A few environmental groups, such as Greenpeace, opposed the legislation as not strong enough, but most argued that it is better than not having any legislation to control GHG emissions.

The debate on the House floor, and the near party-line vote, illustrated how polarized the debate over climate change has become. Some opponents of the bill denounced the concept of climate change as junk science and argued that the legislation would cripple an economy that already is reeling. I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments, which established a national cap-and-trade program to reduce emissions of sulfur dioxide. Opponents of that legislation, citing a group of Nobel prize-winning economists, also forecast dire economic consequences and argued that the U.S. could not afford it on the eve of the first Gulf War. Yet that legislation has produced enormous net benefits, as even OMB agrees.

The bill now faces a difficult fight in the U.S. Senate where it will be necessary to win 60 votes to overcome a Republican filibuster. Legislation that imposes short-term costs for long-term benefits is always a difficult political sell. Thus, many environmental laws were adopted only after highly publicized environmental disasters and Congress often exempts existing sources from new pollution controls. A basic flaw in the original Clean Air Act was that it indefinitely exempted existing power plants from the new pollution control standards it imposed on new plants. This encouraged companies to go to extraordinary lengths to extend the lives of existing plants, causing far more pollution than anticipated. A much better approach was adopted by Congress in the Oil Pollution Act when it phased in new double hull requirements for oil tankers based on the age of existing ships.

The climate bill approved by the House responds to concerns that countries that fail to control their GHG emissions could gain a competitive advantage over U.S. industries by authorizing a form of carbon tariffs to protect industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.

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Taking China’s Temperature on Climate Change

The latest talks on efforts to control global emissions of greenhouse gases (GHGs) concluded in Bonn this week with little reported progress. A key sticking point is China’s continued unwillingness to agree to control its emissions.

Last month I spent two weeks in China at the request of the U.S. State Department to give a series of lectures on environmental law. I gave 14 lectures in six Chinese cities at universities, think tanks, government agencies, and a bar association. While I lectured on a variety of environmental topics, in every presentation I explained why it was crucial for China to control its GHG emissions. In 2007 China surpassed the U.S. as the largest emitter of GHGs and it accounted for more than two-thirds of the growth in global emissions that year. During my lectures, the question whether China should agree to control its emissions sparked lively exchanges with audiences of professors, students, lawyers, government officials, and scientists. A few responded that “climate change doesn’t exist,” or “if it exists, it’s not caused by human activity.” Others maintained that China already was doing its fair share to respond to the problem through its efforts to promote renewable energy and electric car technology.

But I did perceive that there is greater awareness in China of the problem of climate change than there was last year when I was teaching in China as a Fulbright scholar. I gave guest lectures then at universities in several Chinese cities and found remarkably little understanding or concern about the problem among Chinese audiences. Climate change has not been high on the agenda of Chinese environmentalists in large part because the country has so many other immense environmental problems, including severe air and water pollution that pose basic threats to public health.

Another thing that had changed from last year is that the Chinese people know that the U.S. has dramatically changed course by electing Barack Obama president. The students I taught in China last year followed the U.S. presidential election very closely, commenting on the results of each primary. Many told me that the U.S. would never elect a black president. When Obama won, they were stunned, as were most of the leaders of the Chinese Communist Party. While most Chinese I met now realize that Obama is changing U.S. policy, they are not well aware of the extent of his administration’s efforts to adopt controls on GHG emissions. Last year a Chinese student told me that she knew the U.S. would never agree to control its GHG emissions because Cass Sunstein had written that it was not in the economic interests of the U.S. or China to do so. Now they are impressed by Obama and how he is changing U.S. policy.

Yet many Chinese remain openly skeptical of the motives of those who seek to persuade China to control its GHG emissions. Even one of China’s the top public interest environmental lawyers believes that climate change is a western plot to reduce China’s economic growth. In nearly every audience I addressed, someone would insist that the U.S. possesses secret technology to control GHG emissions and that it is simply refusing to share it with China in order to gain economic advantage.

In December the nations of the world will meet in Copenhagen to negotiate a successor to the Kyoto Protocol to control GHG emissions after 2012. The key issue will be whether China will agree to control its GHG emissions. The Chinese government has proposed that developed countries reduce their GHG emissions by 40% by 2020 and contribute .5 to 1% of their GDP to a fund to assist developing countries. This proposal is widely viewed as pre-negotiation posturing. Chinese officials also have argued that China should not have to control emissions generated by its production of goods exported to other countries, an argument that flies in the face of the “polluter pays” principle and a global trend toward increasing producer responsibility. That argument seems to have backfired as an open invitation to other countries to impose carbon tariffs, but if it implies that China should control the rest of its emissions generated by non-export industries (estimated at 75-85%), it could signify some progress.

In my presentations I emphasized the increasing urgency of the climate change problem. More rapid melting of polar ice than anticipated just two years ago when the Intergovernmental Panel on Climate Change (IPCC) released its most recent report has convinced some scientists that worst-case scenarios for climate change are now being realized. I showed video clips of the impact of sea level rise on Beijing and Shanghai from “An Inconvenient Truth,” which drew audible gasps from every audience. Few Chinese have seen this movie, which embassy staff attribute in part to the fact that the title does not translate well into Chinese.

In February of this year the nations of the world agreed to negotiate a treaty to control global emissions of mercury. For years the U.S., China and India had opposed negotiating such an agreement. But when the Obama administration reversed U.S. policy, China and India also agreed to drop their opposition. The fate of the world’s climate is now largely in the hands of China and the U.S. because they account for nearly half of global GHG emissions. Whether they can agree to overcome this other global “tragedy of the commons” should be revealed by December in Copenhagen.

6

Be Careful What You Wish For in a World of Global Law

For the last couple of years I have been promoting the concept that globalization is blurring traditional distinctions between domestic and international law and creating new norms that should best be considered a form of “global law.” Tseming Yang and I have co-authored a piece on “The Emergence of Global Environmental Law” that will appear shortly in Ecology Law Quarterly. In April I delivered the 15th Annual Lloyd Garrison Lecture in Environmental Law at Pace University Law School and devoted it to describing “The Globalization of Environmental Law.” A transcript of this lecture will appear shortly in the Pace Environmental Law Review. This phenomenon is occurring not only in the environmental law field, but also in other areas of law such as antitrust and securities regulation as governments and NGOs increasingly coordinate regulatory policies toward multinational corporations. Gone are the days when a company whose hazardous products were restricted in the developed world could easily dump them in developing countries without their shareholders finding out about it. As legal systems in developing countries mature, the days when multinational corporations automatically sought to defeat lawsuits in U.S. courts by foreign litigants by invoking the doctrine of forum non conveniens also may be numbered.

Two events last week are illuminating. Wednesday was the scheduled start of a trial in federal district court in New York of a lawsuit alleging that Royal Dutch Shell collaborated with the Nigerian military to execute environmental activist Ken Saro-wiwa in 1995. The lawsuit was filed under the Alien Tort Statute (ATS), enacted by the first U.S. Congress in 1789 to enable foreigners to recover for harm caused to them by U.S. citizens. Wednesday also was the day on which the annual meeting of shareholders of the Chevron Corporation was held and environmental protesters were expected. When it took over Texaco eight years ago, Chevron acquired responsibility for defending a long-standing lawsuit against Texaco by residents of the Oriente region of Ecuador. Plaintiffs in this lawsuit claim that Texaco’s oil development activities in Ecuador during the 1970s and 1980s created an environmental disaster that persists today and they were expected to protest at Chevron’s annual meeting.

Litigation under the Alien Tort Statute is now almost impossible for environmental plaintiffs to win because the Supreme Court set the bar so high when it decided Sosa v. Alvarez-Machain in 2004. The Court held that the Alien Tort Statute can only be used to seek redress for actions that violate “specific, universal, and obligatory” norms recognized as part of the “law of nations” at the time the law was enacted. Both the Second Circuit (in Flores v. Southern Peru Copper Corp. in 2003) and the Fifth Circuit (in Beanal v. Freeport-McMoran in 1999) have held that allegations of severe environmental harm were not enough to give rise to liability under the statute. However, plaintiffs who claimed that the Unocal Corporation had collaborated with the Burmese military’s activities of forced labor, murder, and rape in connection with construction of an oil pipeline won a favorable settlement following an en banc oral argument in the Ninth Circuit (Doe v. Unocal Corp.) that did not go well for the company.

Ironically, the litigation against Texaco also began as a claim under the Alien Tort Statute in the early 1990s. But the company, invoking the doctrine of forum non conveniens that had sent the Bhopal litigation back to India, insisted that the litigation should not be heard by the U.S. courts. As a result, it was dismissed by the Second Circuit on the condition that Texaco agree to let the case be heard by an Ecuadoran court. After years of trial, the court in Ecuador may rule before the end of the year and Chevron now fears that it may be held liable for as much as $27 billion in cleanup costs. Chevron’s defense is that everything it did in Ecuador was legal (at a time when the country’s environmental laws were undeveloped). It also notes that it spent $40 million on environmental cleanup and was released from further liability by the government of Ecuador in 1992 when it left the country. The plaintiffs claim that this settlement with a former, compliant government does not absolve Texaco of responsibility for the harm their activities caused to the plaintiffs. I previously predicted that as foreign courts become more aggressive in handling claims for environmental harm, companies eventually will abandon their strategy of seeking dismissals of suits filed by foreigners in U.S. courts on forum non conveniens grounds. (“Environmental Law in the Twenty-First Century,” 25 Va. Envt‟l L. J. 1 (2007)). In hindsight Texaco would have been better off litigating the merits of the claims in U.S. courts than appearing before what appears to be an increasingly hostile court in Ecuador.

The start of the Saro-wiwa v. Shell trial has now been delayed until this week. Last December Chevron won a high profile ATS case when a jury in San Francisco ruled in Bowoto v. Chevron Corp. that it was not responsible for human rights abuses when the Nigerian military suppressed an environmental protest against its drilling practices. But win or lose, these cases expose to the glare of international publicity environmental practices that fall short of the standards oil companies use when operating in developed countries. Plaintiffs are making full use of the internet to communicate their point of view. See www.shellguilty.com and www.truecostofchevron.com.

This week House Speaker Nancy Pelosi traveled to China to engage Chinese officials on why it is important that they agree to control their emissions of greenhouse gases (GHG) at the upcoming global Copenhagen conference in December. This is a similar mission to the one that I was on last month when the State Department arranged for me to give two weeks of lectures on environmental law in six Chinese cities. Next week I will blog about this experience and the prospects for the Chinese agreeing to control their greenhouse gas emissions at the upcoming Copenhagen conference in December.