Environmental Summit of the Americas

Posted on March 20, 2017 by Eugene Smary

Our American College of Environmental Lawyers recently has increased its external educational efforts, co-sponsoring programs with the Environmental Law Institute and the American Law Institute.  The College has also actively collaborated with other organizations to identify pro bono opportunities for its members in the international environmental arena.  The College is now proud to be a co-sponsor of the Environmental Summit of the Americas being held in Los Angeles on March 29. 

The lead organizers of this one-day Summit are the American Bar Association’s Section of Environment, Energy and Resources (SEER) and the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL).  Our College is joining the Canadian Bar Association’s National Environment, Energy and Resources Law Section (NEERLS) as a co-sponsor. 

The topics to be covered in the program are:  Climate Change and Energy/Environmental Policy; Extended Producer Responsibility; Officer, Director, Lender and Parent Company Liability; Permitting and Social License; and Trade and the Environment.  There will also be a special presentation by representatives of the Inter-American Development Bank on its project assessing the quality of environmental regulation in the Americas.  The format for the Summit is intended to be conducive to group discussion for each topic.  Each topic will have several discussion facilitators who will be providing a brief overview of the topic and then facilitating discussion among attendees.  Facilitators include well recognized lawyers from the United States, Canada, Costa Rica, Brazil, Argentina, Mexico, Chile, and Peru.  While registrations are still being received, well over 50 percent of registrants are from Latin America and Canada.

Many of us have had a long-held objective of encouraging and developing this type of cross-border dialogue among our colleagues in this hemisphere.  The dialogue already exists in the context of the extractive industries, with groups such as the Rocky Mountain Mineral Law Foundation providing a platform for such discussions.  There also has been a long-term, collaborative relationship with ABA SEER and CBA NEERLS that has evolved over the last 15 years and has proven very instructive and beneficial to lawyers on both sides of the border.  More recently a relationship has been evolving between SEER and the United Kingdom Environmental Law Association, and between SEER and SEERIL. 

It has been more difficult to coordinate such a dialogue with jurisdictions having more loosely organized bar associations, particularly with a focus on environmental law.  While there have been some efforts by various international referral networks to develop such a discussion, to my knowledge the Summit will be the first effort by respected bar associations and our College to foster such a broad-based understanding of environmental legal developments.

College members are encouraged to attend.  The Summit will be an excellent opportunity for all attendees to learn from each other in a format which encourages discussion.  Chatham House Rules control.  The Summit is being held the day before the SEER Spring Conference which, hopefully, many of our College members already plan to attend.

I hope to see you there!

WORRIED ABOUT OUR CLIMATE FUTURE? LOOK TO YOUR PLATE

Posted on December 15, 2016 by Peter Lehner

If the worst should happen—if the U.S. withdraws from the Paris climate agreement and rescinds President Obama’s Clean Power Plan—do we have any hope of protecting climate stability? Yes. Even in the face of such serious setbacks, all would not be lost. Clean energy and energy efficiency are already a part of our power system. Wind energy is less expensive than coal in some parts of the country, and the prices of wind and solar are expected to drop further still as projects already funded come online. Our vehicle fleet is more efficient than ever and will continue to save drivers money at the gas pump. And there’s another factor driving greenhouse gas emissions that we have enormous personal power to change: the way we eat. 

The effect of diet on climate change is extraordinary. According to a tool called the Global Calculator, developed last year by an international team led by the UK Department of Climate Change and the Environment, simply reducing (not eliminating) meat consumption worldwide—without any changes in other activities, including fossil fuel use—could move us nearly halfway toward meeting the 2° Celsius (3.6° Fahrenheit) limit in temperature rise set by the Paris agreement. By contrast, if the entire world ate meat in the way rich countries do now, emissions would go off the charts, even if we took big steps to cut climate pollution in other areas.

Eating meat—beef in particular—has a major impact on climate pollution because of the amount of carbon-storing forest that is cleared to raise grain for cattle, the emissions created by fertilizer used to grow that grain and the emissions from the digestive systems of cows themselves. Beef is responsible for about 20 times more climate pollution per unit of protein than lentils or beans and 8 times more than pork or poultry.

Eating meat, especially beef, has a major impact on climate pollution.

GLOBAL CALCULATOR

In the image above, the rising black line represents climate emissions if the world fails to take any other positive climate action. (All data is based on our modeling using the Global Calculator.) Continuing along our current path would lock us into 7.2°F of warming in this century and nearly 10.8°F in the long run, resulting in swamped coastlines, bleached coral reefs, increased disease, water insecurity and a host of other effects. On the other hand, if meat consumption falls to levels currently found in India (the caloric equivalent of eating one serving of chicken breast per week) and the proportion of beef in the meat we eat is reduced from 22 percent to 10 percent, as seen in China now, it would result in a major decline in emissions by 2050, as you can see in the falling green line.

The steep red line represents what would happen if meat consumption worldwide increased to current European levels (the equivalent of eating two servings of chicken breast per day) and the proportion of meat from beef increased from 22 percent to 28 percent, as seen now in Canada. In other words, if the world starts to emulate the diet of wealthier Western nations, emissions would rise sharply. In fact, emissions would climb beyond levels predicted under the worst-case scenario mapped by the Intergovernmental Panel on Climate Change in 2014. The panel warned of a two-foot rise in sea level by the end of this century, increasing the flood risks in coastal cities like Miami by 10 to 100 times. In other areas, droughts, deadly heat waves and tropical cyclones could also become more frequent and intense.

What’s alarming is that even if we pursue extremely ambitious reductions in climate pollution from transportation and energy, these efforts would not be enough to counteract the impacts of consuming meat at higher levels, as shown by the rising blue line on the chart.

Here’s the rub: The risk of catastrophic climate change will be almost impossible to avoid if we fail to address the impacts of meat consumption. As we ponder how the nations of the world will move forward to address climate change, and how America, in particular, will move forward under a Trump presidency, it’s heartening to know that a powerful solution like diet is available and relatively untapped.

No one expects the world to stop eating meat overnight, but we can reduce the amount of meat we eat. Many studies show that a diet high in plant-based foods and lower in red and processed meats benefits your health as well the climate. Restaurants and grocery chains are offering more plant-based options; there are even food delivery services like PlantPure Nation and Purple Carrot that make it easy to put a plant-based meal on the table. Food writer Mark Bittman’s “flexitarian” recipes are another good source of inspiration. As more people incorporate more plants and less meat into their diets, we’ll have a healthier population and a healthier planet, too.  

(This blog was first published by Earthjustice. http://earthjustice.org/blog/2016-november/worried-about-our-climate-future-look-to-your-plate)

For PEAT’s Sake! Another Pathway Averting Climate Change

Posted on December 1, 2016 by Nicholas Robinson

After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times  (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere.  Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.

Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.

Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.

Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore.  Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.

Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.

Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions.  Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain. 

Some countries are taking steps to limit disturbance of peat deposits.  Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming.  Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions  of carbon dioxide from mining peat for use in compost remain at 400,000 tons.  To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats.  Peat is protected in federal parks lands of Alaska.

Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally.  Emission-trading schemes can help finance transitions from peat abuse to peat preservation.

Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change.  Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity.  Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases.  Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.

United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.”  It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.

This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.

Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030.  For peat’s sake, let us get on with it.

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Cuba Delegation Blog 2: Notes from Our Informal Meetings

Posted on October 10, 2016 by David B. Farer

Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba.  I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there.  We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.

One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life.  Most, though, expressed optimism for the future of their country.

You may find some of the notes below inconsistent or contradictory.  I think that’s reflective of the differing viewpoints and experiences to which we were exposed.

Sept 7, 2016:  Meeting with Political Scientist /Publisher/Editor

•    Cuba in transition; you are here at a special time

•    Changes had already occurred before December 2014; more changes since then, and more to come

•    Electoral system:  Citizens vote for representatives to the  National  Assembly/ Assembly chooses President and Vice President

•    Raul Castro has committed to step down in 2018

•    Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro

•    Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers

•    Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals

•    In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.

•    Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.

•    The outside perception of Cuba may be that Cubans have the least available access to world views through the internet.  However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.

•    Human rights issues remain, including prohibition on founding political parties

•    Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.

  • This year: expecting the total to be more than 500,000

•    Key issues for updating the Cuban socialist model:

  • Have to confront increased social inequality & poverty
  • About 20% suffering from poverty; 4 times more than 20 years ago
  • Yet others are achieving higher overall income with salary plus additional sources of income.  Income differential and poverty must be dealt with.
  • Severe housing shortage is a critical problem.
  • Housing in bad condition/ and housing shortage
  • Super centralization as a defensive posture
  • Overextended bureaucracy
  • Water supply/ energy supply problems
  • 20% of Cubans are over 60; by 2025, that will be up to 25% 
    • Life expectancy is about 80 years
    • Population growth rate = -1.5%
    • Birth rate has been low since early 70s
  • Surge of migration.  65% more than the year before.  Up by 45,000 this year.
  • Media:  all media is currently government media
  • Inconsistent economic system 
  • High dependency on imports
  • Low domestic food production and industrial output

•    Last of the key issues/problems:  U.S. policy toward Cuba

  • Negative impact of embargo
  • Fortress mentality
  • Travel restrictions for U.S. citizens

•    Cuban culture is closer to American culture than that of any other country in the region

Sept 7, 2016:  Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science

•    The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).

•    Among other things, it manages protected areas in Cuba.

•    Foundation has collaborated with foundations/NGOs  in U.S., and there have been visits back and forth

•    Biggest problem is that the embargo gets in the way of funding from U.S. institutions

•    Over 50 international cooperative projects over the past 21 years

•    Goal of conservation of Cuban biodiversity and geographical diversity             

•    Problems:  invasive species/ pollution/ climate change/mining   

•    Existing environmental legal framework:

  • National environmental policies, strategies and legislation
  • Article 27 of the Constitution on protecting environment
  • Law number 81:  Approved 1997

•    Cuba has entered three treaties/conventions:  on bio diversity, climate change, and drought.

•    Most important current issues are seen as:

  • Soil degradation
  • Loss of biodiversity
  • Damage to forest cover and lack of water
  • Climate change vulnerability

•    Where does Cuba go from here?  Varying views expressed:

  • Process of last 60 years for environment has been good/big question is how to preserve going forward as things change     
  • Having to redefine behavior and economy
  • Problem of dealing with laws on the books that reflect a former reality
  • We are a country rich in spirit and ideas, but we are poor in our economy
  • How to organize the economy?
  • Challenge:  don't take the same directions that others took 100 years ago
  • Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
  • Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
  • Right now it is reactive, not preventive.

•    General discussion among them:

  • Need to access financing and technology to protect the environment and human settlements 
  • Existing law based on national/fed strategy and structure.  No local structure. 
  • No legal framework to determine the information you need and which set of regulations applies.   There can be conflicting regulations from one ministry to another.  This needs to be combined and systemized.
  • No unity on legislation, on what it means; you get lost looking for information.
  • Same on pollution controls:  different regulations from different ministries.  Cleanup standards as example:  One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
  • Implementing ministry does not itself have the power to enforce.  Other institutions may have power to enforce.  So there is an issue on means of enforcement.
  • Current law already has a way to incentivize local application of laws or enforcement  of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring

Sept 7, 2016:  Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)

•    The official worked at CITMA until she retired in 2014.  Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.

•    Overview of environmental law in Cuba:

  • Until 1990, done empirically
  • But after 1990, determined to be in interest of the  state and the agency to control environmental issues
  • Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
  • Continues under Ministry of Science
  • Within the Ministry, there is an Agency on the Environment
  • There are several other institutions within the environmental agency.
  • Local administrations propose areas to protect: geographic areas/not topics
  • The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
  • Ministry works together with local government
  • When a company wants to work in one of these areas, it has to pass consideration by  a commission that considers what company wants to do
  • Ministry of Science issues permits to companies to work in these areas.
  • Ministry's model for development requires compliance with permits:  risk, air quality etc. within one permit roof
  • Ministry follows UNESCO standards for protection of biosphere
  • Other ministries also have an interest:  geographical and others including tourism
  • Other involved institutions:  Ministries of Mining, Energy, Tourism, for example, depending on project.

Sept 9, 2016:  Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment

•    They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better

•    But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments

•    Since 1992, Cuba has been on path to amend laws to meet international commitments

  • As a result of those commitments, have to revamp institutions:
  • Such as sustainable development
  • But need a clearer legal framework to make it work better

•    Biggest problem here has been adaptation, as opposed to remediation

•    But now:  a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this

•    Per the Paris Accord, we have to deal with adaptation as well as mitigation

•    Have to regulate technology to regulate environment

•    Should look to integrate all of the different laws

  • Right now, each agency issues its own regulations
  • Would be good to integrate and facilitate within one unit       

•    Specific focus could be to introduce a legal framework for  the verification of  remediation, mitigation and adaptation.

•    Currently, each ministry issues resolutions:  their own general determinations to be followed

•    Vertical governmental structure:

  • Municipal/provincial/ national
  • Local decisions cannot contradict national or provincial decisions
  • They don't have equivalent of state legislation

•    CITMA decisions have to be observed all over the country

•    Each province also has experts in each area, representing the Ministry in the region

•    Same at municipal level

•    There are civil and criminal penalties in the current environmental laws

•    The environmental laws are meant to be preventative but there have been sanctions

•    Ministry of Justice tends to have all fines and sanctions in one single act.   And they do find efficiencies here, having fines and sanctions centralized within one act.

•    There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments

•    Almost everything needs an environmental license of some degree:  Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical

•    Mariel Port district being dealt with very firmly and strictly

•    There are municipal/ provincial/national courts, including specialty courts like the environmental court

Cuba Delegation Part 1: Havana Calling – The College’s New Initiative for Pro Bono Work in Cuba

Posted on October 5, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

Havana Calling: The College’s New Initiative for Pro Bono Work in Cuba

Posted on September 28, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

What is in a reputation?

Posted on July 12, 2016 by Lee DeHihns

Events this year have made me wonder how important a corporation’s reputation is to its officers, customers and shareholders.  One example is Exxon’s climate travails with the New York Attorney General and other state AGs along with their much publicized climate laced 2016 annual shareholder meeting in May.

In the Harvard Business Review on April 3, 2015, Allen Freed and Dave Ulrich stated “in recent years, investors have learned that defining the market value of a firm cannot just be based on finances. GAAP and FASB standards require financial reporting of earnings, cash flow, and profitability – all measures that investors have traditionally examined. But recently, these financial outcomes have been found to predict only about 50% of a firm’s market value.”

Their conclusion is bolstered by another Harvard Business Review article on April 28, 2010 when Ron Ashkenas said “nobody knows how much a reputation is really worth, although many would say that it’s priceless. The one thing we do know, however, is that once a reputation is tarnished, it takes a lot of hard work, and a long period of time, to regain its luster.”

The Telegraph in January, 2016 said that “the total value of corporate reputation for all UK-listed companies topped £1.7 trillion at the close of last year. The recent emissions scandal wiped some €20bn (£15bn) off the value of Volkswagen in the weeks following the revelations.”  How much more loss will come from the June 28, 2016 Volkswagen AG’s $14.7 billion settlement with the U.S. government and consumers.  Deputy Attorney General Sally Yates said the settlement is only a “significant first step” toward holding Volkswagen accountable for its actions.  “Let me be clear: It is by no means the last step.”  Civil lawsuits and criminal investigations are still pending.

Fortune Magazine March 1, 2016 in a story headlined “Bitter Sweets” said that “for a decade and a half, the big chocolate makers have promised to end child labor in their industry—and have spent tens of millions of dollars in the effort. But as of the latest estimate, 2.1 million West African children still do the dangerous and physically taxing work of harvesting cocoa. What will it take to fix the problem?”

The main company engaged in the cocoa industry is Nestlé. Fortune went on to state “the multinational chocolate makers are heavily dependent on West Africa. More than 70% of the world’s cocoa is grown in the region, and the vast majority of that supply comes from two countries: Ivory Coast and Ghana, which together produce 60% of the global total. The two nations have a combined GDP of around $73 billion, according to the World Bank—or significantly less than Nestlé’s $100 billion in sales last year. The price of cocoa surged 13% in 2015 even as prices for most raw materials were dropping. Meanwhile the average farmer in each country still lives well below the international poverty line.”

In its defense Nestlé’s website states “Nestlé opposes all forms of child exploitation. We are committed to preventing and eliminating child labour in our supply chain, working with stakeholders to develop and implement meaningful solutions. We conduct comprehensive monitoring, implement remediation activities and provide targeted support to local communities.”

How one gauges and/or measures reputation is uncertain, but eating prunes and driving an electric vehicle would seem like a good first step.

Haiti on the Frontiers of Environmental Law

Posted on July 7, 2016 by Tracy Hester

Jeff Thaler’s and Jim May’s blog posts about our recent ACOEL delegation visit to Haiti captured the vibrant spirit of Haiti’s legal community and its enthusiasm to build new programs in environmental law. Haiti offered a different insight as well:  dire environmental conditions have spurred strikingly innovative and creative legal thinking.  In one sense, Haiti’s challenges are a frontier that can test and forge new environmental laws and concepts.

*****

After our delegation visit finished, my wife and I visited an abandoned United Nations outpost on a dirt road over an hour north from Port-Au-Prince.  Hidden behind encroaching trees and weeds, a blue-trimmed UN guard tower watched over empty concrete foundations and open gates behind a decaying chain-link fence and tangled razor wire.

This fading post is a flashpoint in history.  In 2013, sewage from the UN outpost’s battalion of Nepalese peacekeepers contaminated a nearby tributary and led to an outbreak of cholera that has killed over 9,000 people and sickened over 800,000 so far.  The United Nations has rejected petitions that it should fund and establish a comprehensive sanitation, medical treatment and potable water program to halt the epidemic.  In response, a group of Haitians and Haitian-Americans filed a class action lawsuit in the federal Southern District of New York court for damages and injunctive relief.

The United Nations stoutly rejected any argument that the U.S. court has jurisdiction over its operations.  The United States vigorously urged the trial court to dismiss the lawsuit, and the court agreed on January 9, 2015 by denying jurisdiction.  The district court found that the UN had not expressly waived its immunity under the Convention on Privileges and Immunities of the United Nations of 1946 (despite the UN’s failure to satisfy other important obligations under the Convention).

The case took a dramatic turn when the Second Circuit decided to hold oral argument on the Haitians’ appeal of the trial court’s dismissal.  In a packed courthouse in Manhattan on March 1, 2016, the three-judge panel seemed sympathetic to the claims of Haitians who will likely have no possible relief or compensation if the court upholds the United States’ assertions of strong immunity on behalf of the UN.  The court will probably issue its decision in the next few months.

If the court finds that the UN lacks absolute immunity for environmental or health damages caused by its actions, the decision could have a sweeping impact on the UN’s liability for other humanitarian actions that cause environmental harm.  The UN plays a central role in multinational efforts to fight climate change, protect oceanic resources, and preserve endangered species and ecosystems, and the spectre of liability could hamper its activities.  Depending on the scope of the court’s ruling, this case might also affect the liability of other multinational organizations whose actions to protect the environment unexpectedly injure human health or natural resources.

 

Haiti’s enormous environmental and public health challenges sparked this important case, and the legal creativity guiding the lawsuit arose there as well.  Our delegation had the opportunity to meet Me. Mario Joseph, who directs the L'Association Haïtienne de Droit de l'Environnement which filed the lawsuit (along with several other groups).  As lead counsel he guides the team of attorneys handling the case, and he strongly believes that legal creativity and ingenuity can overcome the procedural and jurisdictional barriers to reach a just environmental outcome.

If it desires, ACOEL can help monitor and, where appropriate, contribute to the development of these types of innovative environmental legal approaches in Haiti.  The Second Circuit’s ultimate decision may offer an opportunity to discuss these issues with the Haitian environmental bar and with other lawyers who want to help build Haiti’s environmental laws and enforcement options. 

In the meantime, change still comes slowly.  When we visited the abandoned outpost, families had moved into the vacant buildings and children were bathing in a nearby stream – directly by the unused outfall pipe where the UN peacekeepers had previously discharged their sewage wastes.  Whatever decisions come from U.S. courts, Haiti will have a pressing need for innovative and effective environmental laws for many years ahead.

ACOEL “Lawyers Without Borders” Group in Port-au-Prince Pati De (Part 2)

Posted on June 14, 2016 by Jeff Thaler

About 10 years ago, when Steve Herrmann began calling 22 other environmental lawyers around the country about starting a new College, I don’t think he or any of us envisioned the College’s reach extending overseas. Yet, thanks to the vision and efforts of Jim Bruen, Bob Percival, and now Jimmy May, in recent years the College has explored possible connections with China, Kenya, and just weeks ago—Haiti.

Six College members, dubbed by one as “Lawyers Without Borders,” spent four whirlwind days in Port-au-Prince Memorial Day and early June. Our key liaison was Widener Law Professor and former Dean Erin Daly, Jimmy’s colleague, who has spent some of her sabbatical year working at the Université de la Fondation Dr. Aristede (UNIFA) begun just a few years ago by former President Jean-Bertrand Aristede and his wife Mildred Aristede, an American-trained attorney. UNIFA was our wonderful host sponsor for the trip. Specifics on the ACOEL delegation and with whom we met can be found in the separate blog post of Jimmy May.

In brief, I arrived a day early with Erin Daly, and our guide, Junior St. Vil, took us to Sakala, a community center in one of the poorest sections of the city. It was Mother’s Day in Haiti, so there was a celebration going on that we witnessed, as well as touring a community garden used to teach children how to grow food—with recycled tires as planters.

On Memorial Day I briefly met Mme. Aristede at UNIFA, then went with Junior to “tour” the city. Port-au-Prince was hit hard by the major 2010 earthquake, and most roads are still in poor shape, clogged with motor vehicles and pedestrians. I saw very few traffic lights or cross walks; everyone shares the road. It thus takes a long time to get from one part of the city (3.5 million people) to another, so most of my morning was spent getting a feel for the street scene, and talking with Junior.

Haiti is the poorest country in the Western Hemisphere. While one College member (who will remain nameless) said that Haiti ranks higher than the U.S. in the Happiness Index, my back-home research found Haitians much less happy than Americans. However, I suspect that may be explained in part by facts such as 1) 70% of the 10 million Haitians have no electricity and are illiterate, 2) most water and sewer infrastructure is in disrepair or worse, 3) only 2% of Haiti’s forest is left, with families reluctantly forced to cut remaining trees for charcoal to cook with, and 4) there are significant “rule of law” challenges from lack of enforcement or viable legal remedies.

Haiti presents lots of opportunities as well as challenges. Our visit focused in large part on the desire of UNIFA and local lawyers to develop a 1-year environmental law LLM program. Currently, “law school” in Haiti is a prescribed, 4-year college curriculum with little focus on environmental, energy or land use issues. During our visit, we met with large groups of students and of lawyers, as well as in smaller sessions with leading environmental, energy and sustainability practitioners. For me, it was clear that everyone wanted to develop, with assistance, initiatives to improve the quality of life for Haitian people. They were well aware of the many damaging pollution and climate change forces hurting the populace and economy; but a key question is how best to create home-designed programs similar to what we began to do in the U.S. in the early 1970s. 

The challenge for us as College members, and for me personally, is how best to assist and collaborate with UNIFA and others in Haiti, to make a difference. Now that personal connections have been made, hopefully our Haitian hosts will be better able to propose to us possible measure to develop a sustained (not one-time) menu of actions that we can work on together with them. I hope to be able, someday soon, to work on environmental or renewable energy education or project-specific initiatives with the great people with whom we met.