Last night, the Oakland City Council passed a resolution (San Francisco Chronicle’s website, East Bay Times) banning the storage and handling of  coal within city limits.  Most importantly, the City Council  is applying the new ordinance to the pending construction of a bulk goods terminal at the Port of Oakland.  The resolution/ordinance does not appear to be available on the Council’s website, yet, but the agenda with the title of the resolution is available here.

The construction of the coal terminal has been quite controversial for a number of reasons.  It would facilitate the export of coal mined in Utah to overseas markets in the Pacific region. Environmentalists see this as encouraging the continued use of coal, with attendant negative consequences for global climate change through the carbon emissions from burning them. The issues are very similar to those associated with the Keystone XL pipeline in recent years. That pipeline was passionately opposed by environmentalists because it would have facilitated the development and use of Canadian tar sands, significantly expanding market access to a very dirty fossil fuel and making it that much more difficult to dial back global GHG emissions.

Another concern has come from the environmental justice implications of this project.  Local environmental justice activists have noted the likely negative health consequences that could result from the potential steady stream of coal trains going through low-income and minority communities.  Fugitive coal dust coming from the coal trains could have serious effects on local air quality.  While the project proponents have denied such impacts, a recent Environmental Science Associates report commissioned by the City Council seemed to confirm these fears.  The mayor and city council have previously stated that they did not know (or were misled) about the anticipated use of the terminal for coal exports when they first entered into the agreement in 2013.

Interestingly, the West Oakland Environmental Indicators Projects, which has also worked against the coal terminal development, sent a letter to the Department of Interior and the Utah Attorney General suggesting that the project may be in violation of Title VI of the Civil Rights Act of 1964.  Under Title VI, recipients of federal funding are prohibited from engaging in discrimination on race, color and national origin. In addition, the regulations of many federal agencies also prohibit actions by fund recipients that merely have a discriminatory effect (rather than being purposefully discriminatory).  The letter suggests that there is a sufficient federal funding nexus to trigger Title VI prohibitions, but it is difficult for me to tell without more information.

Even though the Oakland City Council’s action last night was cheered by activists, the developer threatened that they would not give up.  There will likely be breach of contract claims.  Moreover, the Council’s attempt to block shipments that would transit Oakland on their way abroad raises the question whether this might run into trouble with the Constitution’s commerce clause, a provision that limits the ability of state and local authority to regulate interstate and foreign commerce.  (There is also the question whether there are applicable Department of Transportation regulations regarding such shipments.)

One thing is clear though — this is not the last we have heard of this issue.

Britain’s vote to leave the European Union will undoubtedly have huge political and economic consequences for the world, apart from creating lots of uncertainty.  That is also true for the reverberations that are to come for climate change and other international environmental cooperation efforts. Some reporting/commentary that I have seen here, here, and here has already focused on these issues  There are at least three issues to keep an eye on.

First, on climate change, some key issues arise out of how European countries have chosen to participate in international environmental treaties as a group over the past couple of decades.  As European cooperation had become tighter, and especially as more economic and environmental regulatory powers shifted to Brussels, EU member states began to participate in international environmental treaties not only in their own capacities, but also as part of the European Union.  Thus, many international environmental agreements since the 1990s have the EU participate as an entity separate and independent from its constituent countries.

That applies to the various climate change treaties, including the recent 2015 Paris Climate Accord.  Since the GHG emission reduction commitments were provided as a group, Britain’s exit from the EU will require adjustment of both Britain’s and the EU’s emission reduction commitments in the Paris Agreement.  However, the legal implications of fixing the Brexit consequences for the Paris Agreement are likely to be messier than the practical ones for a simple  reason:  the Paris emission reduction goals were always intended to be non-binding. Hence,  failure to achieve them was never anticipated to carry any direct and formal negative consequences.

The second issue arises out of Britain’s participation in the EU’s environmental regulatory scheme, including the many environmental and climate change directives, and in the European Emission Trading System (ETS).  Britain’s exit from the EU system will make those regulatory directives inapplicable.  But it seems less certain to me how its participation in the ETS will be affected.  Assuming that Britain’s commitment to environmental cooperation with the rest of Europe continues, it is conceivable that something will be worked out to allow Britain’s continued participation.

Finally, with respect to Britain’s and the EU’s commitments in other multilateral environmental agreements concluded over the past 2-3 decades, issues similar to those arising out of the Paris Climate Accord are likely to come up.  A few such treaties readily come to mind:  the Stockholm Convention on Persistent Organic Pollutants, the Rotterdam Convention on Prior Informed Consent, the Convention on Biological Diversity, nd the Minamata Mercury Convention.  Again, there will need to be some adjustments (especially internally to those treaty bodies), but probably nothing earth-shattering, at least not from an international legal perspective.

The farther-reaching consequences may well come from the underlying political trends that led to Brexit in the first place.  What do they suggest for the future of environmental cooperation, and will they undermine the wave of good will and engagement that formed the basis for the Paris Accord?  There is also one other possibility that Brexit raises.  From a perspective of pure environmental opportunism, might Britain become more available and interested in closer environmental cooperation, especially on climate issues, with the United States?

I have to confess that I share a very small professional stake that has been affected by the Brexit.  For my comparative environmental law book, I had expected to rely on a number of British cases to illustrate how the European Union’s environmental regulatory structure works.  What now . . .  Is the sky falling?  (Or more accurately, how much will I need to change things when Britain’s exit from the EU is formally and legally completed in a few years.)  Even though this question is somewhat facetious, it really does raise interesting (and troubling) prospects for the future of international environmental cooperation (and international environmental law).

Just earlier today, President Obama signed H.R.2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, into law (also commonly referred to as the TSCA [Toxic Substances Control Act] Reform legislation).  A link to the legislation that was sent to the White House for the President’s signature:  https://www.congress.gov/114/bills/hr2576/BILLS-114hr2576enr.pdf

Obviously, the new act does not come without concerns, as legislative analyses by the Safer Chemicals, Healthy Families coalition and by EDF indicate.  (Links below.)

Regardless, it is difficult to understate the historic nature of this legislation.  First, the Lautenberg Act updates the 1976 TSCA, which has not undergone a fundamental revision since its original enactment some 4 decades ago.  Many countries, especially the European Union system with its REACH system, have long ago put far more modern regulatory systems into place.  Second, it should make it far easier for EPA to do its regulatory job addressing the safety of chemicals since the legislation changes the legal standard that has essentially stalled much regulatory actions.  Since 1991, a federal appellate court decision in the Corrosion Proof Fittings case interpreted a provision to essentially halt EPA’s efforts to regulate asbestos.  Third, and most importantly from a big-picture environmental politics perspective, this is the first major piece of environmental reform legislation that the Congress has enacted since the 1990 Clean Air Act Amendments, more than a quarter century ago.  Consider that as an indication of how dysfunctional the federal legislative process has been over the past decades with respect to the environmental issues!

http://blogs.edf.org/health/2016/05/23/historic-deal-on-tsca-reform-reached-setting-stage-for-a-new-law-after-40-years-of-waiting/

Zhang Jingjing, a leading Chinese environmental lawyer, and I have penned a short update (styled as a  joint letter to the editor) on a set of pieces, including my article, Mysteries, Myths, and Misunderstandings, which appeared in the March/April 2016 issue of the Environmental Forum.  The article introduced environmental lawyers and professionals to key issues they should be aware of when engaging in work in China.  The update appears in the forthcoming July/August 2016 issue and is available below.  Our update focuses on the April 28 enactment of the 2016 Foreign NGO Law, formally known as “The People’s Republic of China’s Law on the Management of the Activities of Overseas NGOs within Mainland China.”