Concurring Opinions » Robert Percival

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

Robert Percival — Tue, 30 Jun 2009 23:09:40 +0000

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.

Climate Change Legislation

Robert Percival — Mon, 29 Jun 2009 03:54:55 +0000

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.

Taking China’s Temperature on Climate Change

Robert Percival — Sun, 14 Jun 2009 03:31:51 +0000

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.

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

Robert Percival — Tue, 02 Jun 2009 00:38:59 +0000

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.