Oakland City Council Votes to Ban Storage and Handling of Coal Throughout City of Oakland

OLYMPUS DIGITAL CAMERALast 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.

 

Some Consequences of Brexit for Climate Change and Other International Environmental Cooperation?

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 herehere, 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.

23595388112_ebbad5a168_kThat 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).

TSCA Reform Act (Frank R. Lautenberg Chemical Safety for the 21st Century Act) Signed by President

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/

UPDATED: The Near-Final TSCA Reform Legislation – A Rundown

 

 

Internship: Earthjustice, International Law Clerkship, Summer 2017 (Deadline: unspecified, San Francisco)

LOCATION:
San Francisco, CA
DEPARTMENT:  Litigation
JOB TYPE:
Clerk, Extern or Intern

 

 

Earthjustice’s International program is seeking summer Law Clerks who share a passion for justice and a healthy environment.

Earthjustice’s International program works in international tribunals, domestic courts, and international institutions to defend the right to a healthy environment around the world.  International program staff represent and collaborate with organizations and communities to establish, strengthen, and enforce national and international legal protections for the environment and public health.  Core focus areas include combating climate change, including by supporting worldwide efforts to stop coal mining and consumption, and promoting clean energy; protecting the international Arctic; building marine resilience to ocean warming and acidification; and strengthening the ability of citizens around the world to participate in environmental protection.  At the heart of our work is the principle—which we were the first organization to advocate internationally—that all people have a right to a healthy and sustainable environment.

Summer Law Clerks play an important role in the development and implementation of international legal strategies to combat some of the most pressing threats to the environment around the world.  Under the supervision of an attorney, Law Clerks’ primary responsibilities are to conduct legal and policy research, and draft legal documents.  Depending on our docket, summer clerks might draft submissions to US courts or international tribunals, petition international environmental or human rights bodies, write memos or briefs in support of litigation in foreign domestic courts, research issues related to international environmental and human rights law, and/or develop public outreach materials, such as press releases and blog posts.  In addition, the summer law clerk program includes seminars with attorneys from across the organization on current environmental issues.

Although not required, the ideal candidate will have:

  • A demonstrated commitment to or interest in international and/or environmental issues.
  • Experience working in cross-cultural settings.
  • Coursework or job-related experience in international or international environmental law.

The International Law Clerkship includes a stipend up to a maximum of $6,500, depending on the extent of the clerk’s funding from other sources for the summer. Earthjustice will pay $6,500 minus the total amount the clerk receives from other sources. We strongly encourage candidates to pursue outside funding, but the ability to secure outside funding does not affect our hiring decision.

TO APPLY

Law students who have a minimum of ten consecutive weeks to commit in the summer are eligible to apply.  Interested applicants are requested to submit the following materials:

  • Cover letter. The best cover letters are one page, address why the applicant wants to work for the International program, and provide information about the applicant that is not apparent or fully explained in the resume.
  • Resume.
  • Recent writing sample, preferably a legal brief or memorandum of no more than ten pages, that has not been edited by another person.
  • Unofficial transcript. If your transcript does not include the classes you are registered for or intend to take in the for fall term, please provide a list.
  • List of three references.

Incomplete applications will not be considered. If you’re having technical difficulties submitting your application, please contact jobs@earthjustice.org

 

Update to “Mysteries, Myths, and Misunderstandings” article in March/April 2016 Issue of Environmental Forum

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.”

Fellowship: Environmental Defense Fund, Legal Fellow (deadline: unspecified/rolling, Washington, DC)

https://www.edf.org/jobs/legal-fellow

(go to job ad page for a direct link to submit application online)

Legal Fellow

Legal FellowClimate and Energy – LegalWashington, DC

With world attention focused on both the environment and the economy, Environmental Defense Fund (EDF) is where policymakers and business leaders turn for win-win solutions. This leading green group, with programs from Boston to Beijing, has tripled in size over the past decade by focusing on strong science, uncommon partnerships and market-based approaches. You can be part of a vibrant workplace that welcomes diverse perspectives, talents, and contributions, where innovation and a focus on results are a way of life.

Overall FunctionEnvironmental Defense Fund’s Washington, DC office is seeking a highly qualified and deeply motivated legal fellow to work on projects related to climate, air quality, and energy, with particular focus on reducing climate-destabilizing carbon pollution from the electric power sector.

Key ResponsibilitiesThe Legal Fellow works closely with the rest of the legal team on a dynamic mix of legal and regulatory advocacy aimed to secure effective greenhouse gas mitigation and cleaner air.  The work ranges from strategy sessions about what legal arguments will be most effective in a specific briefing effort to intensive legal research on cutting-edge environmental law questions to the development of comments to advocate for and support the development of protective environmental standards

Previous legal fellows have researched, written, and presented legal and policy documents for federal court litigation, administrative litigation, national and state regulatory proceedings, and various policy venues. Current legal fellows have been deeply engaged in D.C. Circuit litigation over greenhouse gas and toxic air pollution regulation under the Clean Air Act; litigation challenging California’s landmark climate program; major national and regional policy initiatives on air quality and climate change; protection of air quality and ecological systems in national parks; and the development of emission standards for oil and gas development.

QualificationsWe seek recent law school graduates interested in working on cutting edge regional, national, and international climate and air quality issues. Other qualifications include:

  • Licensed to practice law or actively seeking admission to Bar, with background in environmental and administrative law.
  • Ability to collect, manipulate, analyze, and interpret legal data and prepare reports of findings.
  • Excellent legal research, analytical, writing and advocacy skills.
  • Establishes and maintains strong working relationships with internal and external allies.
  • Results-oriented, self-starter with the ability to think strategically and work on fast-paced, dynamic issues.
  • Ability to work both independently and as a leader or member of teams in a dynamic and creative environment with colleagues and partners of varied background and experience. Able to prioritize and be flexible.
  • Excellent written and oral communication skills.
  • Computer proficiency, experience with Microsoft Word and PowerPoint.

LocationWashington, DC

TermThis is a one-year fellowship

HoursFull-time (35 hours/week)

Application MaterialsInterested applicants should attach their cover letter and resume to the EDF application, together with a writing sample.

Due to the volume of employment applications and queries received, EDF is unable to respond to each application individually. Applicants will be contacted directly if selected as a candidate.

Position: Connecticut Fund for Environment, Climate and Energy Attorney (deadline: June 15/rolling, New Haven, CT)

http://media.wix.com/ugd/842761_f3305ad11a184709812dbab41b856c44.pdf

CLIMATE AND ENERGY ATTORNEY Connecticut Fund for the Environment / Save the Sound http://www.ctenvironment.orghttp://www.savethesound.org Connecticut Fund for the Environment (CFE) is a leading non-profit environmental advocacy organization based in New Haven, Connecticut. CFE’s Save the Sound program has an additional office in Mamaroneck, New York for its Western Long Island Sound program. CFE is a professional organization with a strong track record and we are currently in an exciting period of expansion. We are seeking an experienced, dynamic, self-starter to fill a position as the Climate and Energy Attorney. This is a full-time position in New Haven, CT, which reports to CFE’s Program Director. CFE’s climate and energy program is dedicated to maintaining and enhancing Connecticut’s leadership role in addressing climate change and air pollution and supporting sustainable communities and economies. CFE uses legal and policy expertise to advocate for effective environmental solutions; Save the Sound, a permanent program of CFE, is dedicated to the protection, preservation and appreciation of Long Island Sound. Position and Responsibilities The climate and energy attorney will be primarily responsible for developing and implementing CFE’s climate and energy program. The position will involve working with multiple stakeholders in the legislature, administration, regulatory agencies, business community, clean energy community, and others, including other environmental advocacy groups. It will involve researching and understanding cutting-edge issues regarding climate change, electric vehicles, energy efficiency, clean energy finance, renewable energy deployment, grid modernization, and utility business models. Responsibilities include drafting legislation, comments in administrative proceedings, and grant proposals, testifying on bills before the state legislature, and working with communications staff on public outreach materials and press. The energy and environment attorney, with direction and supervision from the Program Director, will also plan, track, and report progress to demonstrate genuine progress in meeting CFE’s goals. Recent priorities include: (1) advocating for meaningful greenhouse gas emissions reductions at the Governor’s Council on Climate Change and at the local level, (2) supporting policies to promote electric vehicles, (3) the Share the Sun campaign, which focuses on public outreach and education around shared solar, and (4) removing regulatory barriers to deployment of clean and renewable distributed generation. The attorney may also appear before agencies and in federal and state court on behalf of CFE in energy, air, land, and water related matters. Qualifications Candidates must have a J.D. and be admitted to the Connecticut state bar, or be willing to sit for the Connecticut bar at the next available opportunity. Another advanced degree in science, economics, or policy would be helpful but is not required. The ideal candidate should have at least 2-3 years of postgraduate legal experience, a demonstrated commitment to public interest environmental advocacy, and a background in energy and climate law and policy. He or she should be highly self-motivated, capable of organizing and implementing campaigns, and a strong public representative of CFE and its mission. Finally, he or she should have experience in, and understanding of, legislative and regulatory affairs involving climate and energy, including knowledge of state and federal regulation of utilities. Outstanding research and writing skills and a demonstrated ability to communicate effectively are required. Interested candidates should email a resume, cover letter, and three references to Valerie Wormely-Radford at vwormely-radford@ctenvironment.org with “Climate and Energy Attorney” in the subject line. The application process will remain open until a candidate is selected; however CFE advises that materials be submitted prior to June 15, 2017. Candidates will be interviewed on a rolling basis. CFE is an equal opportunity employer and does not discriminate on any basis when considering applicants. Compensation is commensurate with education and experience. Background Founded in 1978, Connecticut Fund for the Environment merged in 2004 with Save the Sound, a respected voice for the protection of Long Island Sound’s shoreline, marine habitat and water quality since 1972. Linking CFE’s legal, scientific, and policy expertise with Save the Sound’s proven stewardship, restoration, and community outreach capability has created one of the region’s leading environmental organizations. Our mission is to protect and improve the land, air, and water of Connecticut and Long Island Sound. Our staff of 32 works with thousands of partners and stakeholders, including elected officials and community leaders, individual citizen activists (13,000), volunteers (2,500), and members (5,300). Additional Duties of All CFE/Save the Sound Employees All employees are expected to assist with execution of the annual development plan to support meeting the annual organizational and campaign budget. Activities may include, but are not limited to:  Playing a lead or support role in drafting content for grant proposals and funding requests;  Participating in donor cultivation and solicitation activities in support of small donor development; and  Supporting the execution of small fundraising events or donor cultivation events. All employees must also maintain accountability to administrative systems and procedures, including but not limited to:  Submitting expense reimbursements, credit card reconciliations, invoices, lobbying reports, etc. by the deadlines assigned, as well as submitting content for the outreach calendar;  Plan, track, and report on individual and departmental work in support of organizational coordination;  Contribute content for organizational communications and marketing materials.