International Priorities

Last week I attended an international seminar put on by Baker and McKenzie attorneys.  This firm has lawyers all over the globe.

There were some interesting take aways.  The global recession has impacted every country.  Many thought that a slow down in adopting new environmental laws, particularly on climate change, would then follow.  That seems logical since it will cost everyone to comply with new global climate change laws.

Instead, climate change legislation is proceeding rapidly in almost every jurisdiction despite the economic impact. 

And although the lawyers working on mergers and acqusitions have seen a decrease in work, that is not true for environmental lawyers.  If anything, global enforcement on compliance has increased.  It is certainly a way for the governments to increase their budgets, if governments increase fines collected.

Cash for Clunkers

Member states of Europe have been jump starting car sales by providing subsidies for the purchase of new fuel efficient cars, replacing older cars.

Of course, in Europe, fuel costs are higher than the US and Europe has also started carbon taxes.

http://www.nytimes.com/2009/04/01/business/global/01refunds.html

This idea has also been proposed in the US and Congress is working on the concept.  I also found a blog devoted to the subject.

http://www.cashforclunkers.org/

 

Here are some other stories:

http://online.wsj.com/article/SB123853805152575391.html

http://blogs.wsj.com/environmentalcapital/2009/03/31/german-lessons-is-cash-for-clunkers-the-answer-to-us-auto-woes/

http://www.autobloggreen.com/2009/03/23/does-the-cash-for-clunkers-bill-have-a-landfill-stuffing-downs/

Interesting idea, not much use for me personally.  We have three Chevy vechicles in my family, all of which have instrumentation which keeps track of average MPG and instant MPG.  I average 24.1 mpg on my 2006 Chevy Impala.  On the other hand, my mother drives a 2007 Chevy Malibu and something about her driving habits keeps her average mpg at 22 mpg even though her car is smaller and lighter than mine (when I jibe her for having a lead foot, she scoffs at me.)   Kim has a 2005 Chevy Suburban for dog shows, and she is averaging 16.1 mpg.  And we won’t even talk about our 2008 Winnebago motorhome….but that industry has some real troubles.  But we like to RV for reasons other than mpg….

What do you think?

What type of real world gas mileage do you get in your vehicles?

Australia: Criminal Conviction for Local Government and Official

Justice Lloyd of the New South Wales Land and Environment Court (author:  interesting that they have a separate court) criminally sentenced both a local government official and the local government body for violating environmental laws.  This case is significant because the prosecution was against another governmental body, not a private corporation or individual.

Geoff Freeman was Director of Infrastructure Services for the Port Macquaire Hastings Council (he has since resigned).  His crime was causing construction of a road in an environmentally sensitive area without considering or doing a prior assessment of the impact on two threatened species, the Eastern Chestnut Mouse and the Grass Owl.    The Court found that his actions were intentional.  His defense of lack of training was not accepted because in his position, he should have determined what training he needed according to the Court.  He was ordered to personally pay $57,000 plus the prosecutor’s costs of $167,500.  Mr. Freeman pled not guilty, but was found guilty by the court.

The municipal council plead guilty to three counts of violating the National Parks and Wildlife Act, and one count of the Fisheries Act.  The last count was for allowing reclamation work to proceed without a proper permit.  The Council was ordered to pay a fine of $85,500 plus the prosecutor’s cost of $194,000.

Author’s note:  I have not seen this type of prosecution against a local municipality and its officials in the United States.

For more information and a copy of the decision see:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2009/1.html?query=Garrett%20v%20freeman

http://www.deacons.com.au/legal-services/environment-planning/legal-updates/legal-update.cfm?objid=6893

And coverage from a local newspaper:

http://www.portnews.com.au/news/local/news/general/council-exdirector-slugged-500000/1427798.aspx?src=rss

Here is where the town is located:

http://maps.google.com/maps?hl=en&tab=wl

European Commission takes action against tardy member states

In late November 2008, the European Commission issued infringement notices to member states.  It started court proceedings against Luxembourg for non compliance with rules regarding energy efficient buildings.     The EC previously issued two written warnings to the country.

The EC issued a first notice to Spain over wastewater management for 343 small cities, 59 larger cities and inadequate assessment of open cast mines north of Madrid.

Greece received a final warning over an illegal landfill and a failure to comply with a previous EC court judgment on wastewater management in 12 urban areas. Portugal received a final warning on failing to comply with an earlier judgment on drinking water standards (Author’s comment, why does the EC think suing them a second time and taking them to judgment will work if the country did not comply with the first court order?)

Bulgaria received a final written warning over insufficient implementation of the Waste Framework Directive and a first warning over shortcomings in wild bird conservation.

(Author’s comment:  Doesn’t this seem a bit like handing out demerit points?  Where is the teeth in the law?)

For more information on the structure of EU environmental law enforcement against member states, check out this link:

http://ec.europa.eu/environment/legal/law/index.htm

California Targets Big Screen TVs

The California Energy Commission issued proposed new rules that will require newly manufactured televisions to be more energy efficient.  Beginning in 2011, televisions sold in California will consume an average of 33 percent less energy than they do today.  In 2013, televisions would have to consume 49 percent less energy on average.

This is being proposed as an amendment to the state’s Appliance Efficiency Regulations.                     

http://www.energy.ca.gov/2008publications/CEC-400-2008-028/

http://www.energy.ca.gov/appliances/tv_faqs.html

Other states do not have such regulations and rely on the voluntary Energy Star program of USEPA:

http://www.energystar.gov/index.cfm?c=revisions.img_equip_spec

For US citizens, while you are at the Energy Star site, check out the tax credits for energy efficient home improvements.

http://www.energystar.gov/index.cfm?c=products.pr_tax_credits

 

Barrel Recycling Plant Owner Fined for and Imprisoned for RCRA Violations

Alan Hersh, the 70 year old former owner of a barrel recycler, was sentenced to prison and fined for hazardous waste violations in February, 2009.  He was ordered to spend 15 months in federal prison, followed by three years of supervised release.  He was also ordered to pay $1.7 million in restitutionf or clean up costs.  He could have been fined personally, but was not because he has no money (how does EPA expect him to pay restitution then?).  He was represented by a public defender.

He owned and ran the Hassan Barrel Company from 1959 to 2003, when he suddenly closed the business and abandoned the site in Fort Wayne, Indiana, USA.  He left behind more than 10,000 drums, about half of which contained chemicals.  The site was discovered a year later by a meter reader looking for a meter to read.    The soil was contaminated by the residue of the chemicals.

The federal authorities found Hersh in North Carolina, where he had been living.

The United States regulatory regime for hazardous wastes is called the Resource Conservation and Recovery Act (RCRA.)

For more details see these stories:

http://indianalawblog.com/archives/2009/03/environment_pri.html

http://www.journalgazette.net/apps/pbcs.dll/article?AID=/20090308/LOCAL10/303089920/1002/LOCAL&template=printart

http://www.wane.com/dpp/news/local_ap_toxic_waste_sentencing_200903030725_rev1

From my perspective, this is a change of attitude by the EPA and Department of Justice.  I have seen previous cases of abandoned drum recycling sites, and as long as EPA could find private parties to clean it up, they let the owner/operator off completely (all he had to do was plead poverty.)  This one is going to jail.

Cleaning up the Matanza-Riachuelo River in Argentina

The Matanza-Riachuelo River divides Buenos Aires City from the Province of Buenos Aires and runs into the Rio de la Plata which provides drinking water for the million of inhabitants in this region.  Translated, its name means the Slaughter River.

http://en.wikipedia.org/wiki/Matanza_River

For decades the authorities have been attempting to clean up the river, but to no avail.  In 2004 a group of citizens took the local and national environmental authorities to court in an attempt to enforce action.

The Argentina Supreme Court issued a landmark decision in 2006 which ordered the federal, provincial and city governments to form a tripartite basin authority and to conduct a multiyear cleanup.  It ordered the Water Institute to perform periodic tests and created a watchdog panel to report to a designated court.

The basin authority has ordered several large industrial plants to leave the area and shut down over 100 smaller plants.

In July 2008 the court reprimanded the authority for moving too slowly and gave it deadlines to inspect firms, end untreated sewer discharges and to relocate slums.  In October the basin authority began relocating more than 1000 families from Villa Inflammable (Flammableville), where half the children had elevated lead concentrations in their bloodstreams.

Last month the head of the watchdog group reported to the special court that the state run company that provides drinking water and sewer services to more than 13 million people was discharging effluent to the river with high counts of bacteria and heavy metals.  The state run company, AySA, denies the charges.

This has been a long saga.  What is interesting is that the under the civil law system of Argentina, the Supreme Court is ordering the environmental agency to get moving.  We had something similar in the United States recently with the US Supreme Court ordering USEPA to add carbon dioxide to its list of air contaminants and to get busy on climate change regulation.  In most litigated cases, however, it is a private party who feels aggrieved by an overzealous environmental agency asking for relief.

Here is some more reading on the Matanza-Riachuelo River:

http://www-esd.worldbank.org/bnwpp/index.cfm?display=display_activity&AID=469

http://www.theargentimes.com/socialissues/environment/troubled-waters-the-matanza-riachuelo-river-basin-/

http://intercontinentalcry.org/police-carry-out-suprise-raids-on-corporate-contaminators/

http://www.blacksmithinstitute.org/articles/file/The+Argentimes+Matanza-Riachuelo+river+basin.pdf

Brazilian sugar cane growers agree to reduce burning

Orplana, the sugar cane producers association in Brazil’s Sao Paulo state signed an agreement with the state’s environmental secretariat to speed up mechanized harvesting of sugar cane in an attempt to reduce air pollution for the burning associated with manual harvesting.  Orplana represents over 12,000 sugar cane producers.  In this state, 45 percent of cane is harvested manually and 55 percent is harvested mechanically.  On the steeper slopes, the cane stalks have traditionally been burned, and the smoke contains pollutants and greenhouse gases.   A similar agreement was signed a year earlier in 2007 by Unica, the state’s association of sugar and ethanol producers.  The associations are urging members to switch to mechanized harvesting on the steepest slopes by 2017, rather than 2031 as required by state law.  Source:  BNA International Environmental Law Reporter.

European Environmental Law

Europe is advanced in its environmental laws, and in some legal circles, it is believed that the United States has ceded its leadership and policy developing position to the Europeans.  The guts of European environmental laws are written at the individual country or member state level.  This is where the detailed regulations are found.  However, the European Union is attempting to steer member state law by issuing directives, that is telling the member states what types of laws they must adopt and when the last date for adoption is.  The European Union came into being after many of the member states came into being, and as a federal system of government, is not as strong as other similar unions.  Some member states resist these European Union directives.

For a start, here is the Environmental Web site of the European Union:

http://ec.europa.eu/environment/index_en.htm

One significant difference between European and United States law is in the area of criminal liability.  The U.S. has significant criminal penalties at both the company and individual level.   The member states do not have anywhere near this level of liability.  The Commission has been attempting to drive change, but it is slow in coming.  More on this later.

USEPA’s most wanted list

The United States EPA debuted its “Fugitive Environmental Criminal List” in December of 2008.

Check it out here:

http://www.epa.gov/compliance/criminal/fugitives/index.html