Category Archives: Courses

LAWS666 — International Environmental Law — Fall 2021 Syllabus

Participating Universities

University of South Carolina Law School

Teaching Faculty

Prof. David Linnan

Coverage

Environmental concerns transcend national borders, but present distinctly different issues to differing groups of countries in an area where “soft” law predominates. We shall be looking at four things in particular this Fall. First, how things look for international environmental law after the change in administrations, with the Biden Administration seemingly accepting the idea of climate change? Second, how things look in the rest of the world, both as a matter of their perceptions and the commercial reality that our private sector-business community (aka clients) do not do business only in the US? Third, there recently has been considerable private sector movement in terms of ESG developments and the like, seemingly also in opposition to certain actions undertaken late in the Trump Administration (so most clients appear to embrace ESG, and the bankers are hard at work trying to make money off decarbonizing the economy). Fourth, the IPCC Sixth Assessment Part I on the physical science of climate change appeared recently, unsurprisingly without containing much good news. The balance of the Sixth Assessment (Parts II and III covering mitigation and adaptation, as well as the final synthesis volume) are not scheduled to be released publicly before 2022, but there is some anticipation that climate change media coverage will continue, if not increase, through 2022 as more of the Sixth Assessment documentation is released to the public. The not so hidden message is that if international environmental law is about global issues, you can run but you cannot hide longer term.

This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). There is also a growing overlap between certain areas of international trade and international environmental law. Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, because it still is relatively early in the law-making process, believe it or not. People begin to have a broader appreciation of the problems, but for better or worse there is still visible hesitation about how to address them outside members of the environmental community. Nonetheless, all those unpleasant 2050 climate change projections, etc., should they eventuate, are scheduled to occur during the professional careers of currently enrolled law students. I assume most students take the course hoping to learn something about that looming uncertainty, and how to address it legally.

Meeting Times & Places

The course is scheduled to meet regularly 09:10-11:20 Columbia time Wednesdays in Law School Room 204. Notwithstanding COVID-19 delta variant issues, the Law School is open for business and physical classes will meet. Class sessions should be recorded and available on panopto, but that is only for review purposes. Office hours will be as follows. On request, we can schedule a virtual meeting at any time (via WhatsApp, Zoom, or whatever; my e-mail for scheduling an appointment is davidkeithlinnan@yahoo.com), or we just meet physically in the Law School Courtyard on request (just email me or we schedule after class for meetings Tuesdays through Thursdays 13:00-17:00, or otherwise just catch me immediately following class).

Text and Approach

We shall save you the cost of a commercial law casebook in this course. You will find the free course website at https://uofsclawcourses.azurewebsites.net/courses/laws666-international-environmental-law/ The order of coverage from our web-based materials follows:

UNIT 1Introduction on Background
UNIT 2Customary Law as Basis for International Environmental Law
UNIT 3Human, Development & Other Rights-based Legal Approaches to International Environmental Law
UNIT 4Human Rights Views Differing: ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
UNIT 5Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors?)
UNIT 6Treaty Interpretation and Treaty Process Approaches (Framework Conventions Versus the Package Deal Approach)
UNIT 7Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law
UNIT 8Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)
UNIT 9Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions
UNIT 10Implementation & International Monitoring on the Example of Ozone
UNIT 11Climate Change as the Ultimate Test for the Framework Convention
UNIT 12Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
UNIT 131973 CITES Convention & Approaches to the Marine Environment: Science, Old Treaties & Regional Governance
UNIT 141992 Biodiversity Convention, Sustainability & Indigenous Knowledge
UNIT 15Enforcement, Natural Resources & Who Decides?

This course is mostly a specialized international law course, but is offered without prerequisites knowing that some students will have prior knowledge and training in public international law, while others may not. We shall try to address this via online resources and during office hours, but if all else fails, the public international law nutshell and similar black letter law summaries are helpful.

Dr. Linda Yanti Sulistiawati is a faculty member at the Faculty of Law, Gadjah Mada University, Yogyakarta, Indonesia, visiting this year at the National University of Singapore on a research fellowship. You will encounter her name in a jointly authored opinion piece you read for the first class. But Linda will also use our website materials part of the time to teach her own online UGM international environmental law class this Fall 2021. Wearing another hat, she has also participated as a member of Indonesia’s negotiating delegation in UN environmental and climate change conferences, and is a co-author on the IPCC Sixth Assessment. So she will join us online at some point to discuss and explain how those big international climate change conferences look from the inside of a major developing country delegation, and how they actually put together those IPCC reports (and I plan to teach in the other direction in her UGM course). You will also be zooming locally at some point at least with two outside environmental lawyers and a climate scientist as noted under the Charleston Problem.

Assessment

Grading in the two-credit version of the course will be based largely on your performance in your groups working over approximately half the term on the Charleston Problem (contained in Unit 7, as soon as they update the website). There is also an option to take the course for three credit hours, including writing a 30-page paper structured to satisfy the graduation legal writing requirement. In that case you participate in the Charleston Problem group work, plus complete your individual paper. Students wishing to write a research paper should talk early and often with the instructor. Satisfaction of the graduation writing requirement means that you will be required to choose a topic in consultation with the instructor, produce an outline, followed by a first draft and then a final version of the paper. Note that you must confer with the instructor at least three times in the process: to choose a topic cooperatively, to review your writing outline together, and then for comments between your first draft and the final paper version. I sincerely hope you are done in two drafts, but that largely is dependent upon you putting the necessary effort into your first draft. The process may be harder due to COVID-19 pandemic complications, but we shall work it out. We shall also organize a help session with the reference librarians to introduce you to international environmental law and climate change sources, as a way to help you get started.

You will also be required to prepare other problems and projects for class in groups, where we shall employ a self-grading process within groups (meaning your colleagues indicate whether you did your fair share of the work). The concept is that we rotate responsibility for preparing presentations of group problems so you presumably have one to prepare every 2-3 weeks in your group during the semester. Your grade will also reflect self-grading on the margin (basically, up or down a half letter grade in +/- terms)

COVID Complications

The delta variant has thrown a monkey wrench into the Law School’s reopening, and we are basically bound to follow university-wide policy. This in turn is set in part in accordance with formal acts of the Governor, the Legislature and the Attorney General’s Office. All of that you presumably should understand well as law students. Candidly, the details will all depend on how things develop as a public health matter during the semester, so stay tuned. Having said that, at the moment all students are strongly encouraged but not required to get vaccinated and wear a mask indoors at the university. Covid tests will presumably be required periodically for all, in accordance with university directives. Class attendance is required as under the normal rules unless you have a valid excuse, which is subject to interpretation but seems to mean have been diagnosed with Covid, are formally quarantined on suspicion of Covid, or have a university ADA certification that you cannot attend classes physically (meaning something like you are immune-compromised, or perhaps might have someone like that with whom you live, and you have to be certified through the university process, etc.– simple failure to be vaccinated is not an adequate excuse). Better to stay home if you feel unwell, rather than to risk infecting others. Having said all of that, even if you believe sincerely that masks impinge on your personal well-being and freedom, don’t be a jerk, wear a mask for your colleagues’ sake, if not your own sake.

There is no glory in making someone else sick, and I suspect all your classmates will have very, very long memories if you infect someone else because you refused to wear a mask. What would you think if somebody else totally ruined your semester? I am not sure of the exact numbers, but a substantial portion of previously healthy young folks who become infected will develop “long Covid” symptoms, so that pain may last much longer than Fall 2021.

Having lived through the SARS and bird flu epidemics in SE Asia personally, public health is a serious matter. Look on the bright side, at least you are not required to have your temperature taken before entering any public building, or to carry your own Tamiflu dose for timely use, just in case. Things are much grimmer in a lot of places overseas at the moment, so count your blessings and do your part.

Copyright 2020–21 © David Linnan.

Charleston Problem

This is your Charleston Problem as most important contributor to your (classroom) course grade, to be completed as group work and in several parts over the balance of the semester. Charleston has had a growing flooding problem for a number of years, and its prospects have not improved with the recent publication of the IPCC’s Sixth Assessment Report Part I. Charleston now has an Office of Resilience, and you can consult on their website the City’s All Hazards and Risk Assessment (November 2020).  Are you familiar with the City of Charleston’s climate change lawsuit filed against a variety of local and national oil companies in 2020? But Charleston is really just a microcosm for any coastal urban area facing climate change, sea level rise and adaptation issues on a worldwide basis. We could just as easily talk about Jakarta or Bangladesh, but let’s stay close to home for this one. Meanwhile, climate litigation is actually a growth industry internationally, see Seztler & Higham, Global trends in climate change litigation: 2021 snapshot (LSE Grantham Institute Policy Report, July 2021); and listen to “The Climate Conversations – S1: Climate change and the law:  What’s next  as national courts, international law and climate action intersect? EP27” (Channel News Asia Podcast 03/05/21).

We are certainly closer to the beginning than the end of any Charleston solution, understood as having multiple dimensions. The issues are many, but in a nutshell the coastal areas and municipalities around Charleston all have overlapping, analogous problems allegedly resulting from climate change, attendant sea level rise and related intensifying weather disturbances. Accordingly, there is a question whether you can isolate such problems for the City of

Charleston or the Peninsula in a limited lawsuit with limited parties. May you protect the Peninsula employing flood barriers or a wall, etc., when as a matter of physics, water is simply diverted and goes somewhere else (so watch out Cooper and Ashley riverbanks, Folly Beach and Sullivans Island, etc.). In legal terms, who should have a seat at the table for any adaptation with areawide effects?  Meanwhile, remedial measures (adaptation in climate change terms) will be quite expensive even for the Charleston Peninsula alone.

The adaptation cost estimate in the early studies addressing protection of the Peninsula or City of Charleston is circa $2 billion for an offshore surge barrier with wall roughly circling the Peninsula, but the basic principle applies that the broader the geographic area of protection, the more expensive remediation normally should be. So if one adds seats at the table, the remediation cost will presumably increase as geographic coverage does. And at various points, people will make arguments about protecting property values and the like. For example, the Rosemont and Bridgeview Village neighborhoods on the Peninsula– diverse, “low rent” neighborhoods– lie outside the protection of a proposed flood wall, with the result of disparate social impacts linked to anticipated flooding. But if protection of poor and middle-class homes seems too expensive for adaptation purposes, why should their taxes protect high value townhouses on the Battery? As a practical matter, the level of costs involved will lead to appeals for funding at both the federal and state levels, which may have differing views (e.g., differing opinions on environmental or climate justice). So hard-fought political disputes are easily foreseeable in the longer term, simply in terms of who pays, and for what? This is hardly the kind of dispute to be resolved ultimately in negotiations between the Historic Charleston Foundation, the City, a few environmentally minded NGOs and the oil companies. But having said that, is the full political process and paying for adaptation out of the public treasury any more suitable than litigation against (allegedly responsible) private parties? What should be the parameters?

Background. In terms of different stages in working our problem, initially you need to develop a bit of background on the recent goings-on in Charleston regarding climate change and sea level rise resulting in growing flooding risk over time. The first is to look at the idea pursued by the Post & Courier that Charleston developed a major periodic flooding problem over time (like Miami), with things projected to become much worse by sometime 2035-45. First there was periodic flooding increasing over time, such that in 2018 Charleston was the subject of a short case study in Chapter 19 of the U.S. 4th National Climate Change Report on sea level rise and coastal flooding in the Southeast. Then Charleston acquired a Chief Resilience Officer (and the City Office of Resilience), and with the Historic Charleston Foundation it participated in the Dutch Dialogues in 2019, talking about different approaches to water problems in different areas of Metro Charleston. At the same time, via a three year planning grant, the Army Corps of Engineers produced in 2020 the draft Charleston Peninsula Coastal Risk Management Study, commented upon once already in 2020 and facing further comment in 2021 (the Corps study proposed a flood wall around most of the City of Charleston on the Peninsula, which you will look at as the current state of play). Both the Dutch Dialogues and the Corps of Engineers proposal(s) have generated substantial commentary in the Post and Courier and as part of the formal planning process, such that local Lowcountry politicians, including Charleston Mayor John Tecklenburg, are now treating rising sea levels and coastal flooding as leading issues in their political campaigns. The climate change issues in Charleston are no longer simply of academic concern, but it seems fair to say that none of the proposed responses have received overwhelming political support, or general public acceptance thus far.

City of Charleston Lawsuit. We shall address the City of Charleston state lawsuit (City of Charleston v. Brabham Oil Company et al, Court of Common Pleas, Ninth Judicial Circuit, Civil Action No. 2020-CP-10-, filed September 9, 2020) itself in typical law school fashion.  We shall slice and dice certain legal issues, before splitting you up to research and argue matters. The City of Charleston litigation was filed in state court, and limits itself to state law claims, but on the civil procedure side there are at least three issues. The oil companies being sued consist both of local oil companies (Brabham and Colonial) and national/international oil majors (Exxon, Shell, Chevron and BP), so there will presumably be a vigorous attempt at removal to federal court. Without prejudging the outcome, however, this climate change suit is largely a question of first impression, likely to wind up in the state supreme court on questions of state law at some point. So it is not entirely clear whether the matter should be left in state court ultimately to determine state law on a contentious question.

Beyond removal, there exists a certain question about intervention already alluded to (who are the necessary parties in the dispute?). All the various municipalities in Metro Charleston would be affected by climate change and remediation, but it is less clear whether they really would want to join the lawsuit (notwithstanding which, you might ask questions like whether Folly Beach on the downcoast side of any physical adaptation has the biggest stake in unforeseen effects in marine engineering terms).  Beyond removal and intervention, a number of municipal and state level climate change lawsuits have been filed on the East Coast during the past 36 months by Charleston’s national environmental law counsel, the San Francisco-based Sher Edling law firm (beyond Charleston in Baltimore, Delaware, Rhode Island and the District of Columbia). The Charleston case is largely a common law case (nuisance and torts), with the addition of an SC Unfair Trade Practices Act claim of deception, so it is entirely imaginable that national/international oil majors sued elsewhere by the same lawyers would try to consolidate the cases. In fact, the Charleston case has been paused since Spring 2021, after the parallel Mayor and City Council of Baltimore v. BP et al case went to the US Supreme Court on a removal challenge, which case was subsequently remanded to the Fourth Circuit.

The problem is that the cases are presumably all filed locally in different jurisdictions under differing state laws, and the local oil company parties presumably differ. So the issues may resemble each other factually, but the applicable law and parties will be different to varying degrees– and consolidating cases would prevent novel questions from working their way up to individual state supreme courts in different jurisdictions.   Bottom-line, we acknowledge but largely will not focus on the three civil procedure questions set forth above.  Instead, in the first stage you will be called upon to research and form an opinion on the most likely potential affirmative defense justifying trying the case in federal court, namely an argument for federal preemption under the Clean Air Act. We shall exclude from consideration the factual issue that longer term subsidence on the Charleston Peninsula may weaken claims about the effects of sea level rise. So is the sea level rising or the land falling, which seemingly would have little connection with greenhouse gases (GHGs)? (Jakarta as coastal city with serious climate change issues suffers greatly from subsidence because of heavy residential and commercial reliance on well water, so there are commonalities across coastal city geography worldwide.) In the second stage, you shall focus on the core substantive questions, including the nuisance, tort and statutory claims, focusing ultimately on the climate attribution (or causation) claims to argue whether all the named oil companies selling substantial amounts of fossil fuels in South Carolina over an extended period may be held responsible for what the City of Charleston alleges is climate change due to increased GHG levels. You will note after you read the complaint that the plaintiff’s argument(s) are clearly modeled on tobacco litigation (failure to warn, despite knowledge of GHG’s deleterious effects), although there is an argument whether smoking cigarettes (tobacco) and driving around in your car, or running a factory/electricity generation facility (burning hydrocarbons) are really comparable.

We shall constitute each of your groups of students initially as law firms to prepare successively a 10-12 page memorandum on the federal preemption question to get started, then a 20-25 page memorandum evaluating the likelihood of success for the various theories and causes of action enumerated in the Charleston case, without telling you initially whom you eventually represent. After the groups submit those memoranda, they will be shared and discussed in class so that all groups have a common research base. At that point, we shall divide up roles among the groups, with one or more groups each functioning as plaintiff’s counsel, defense counsel and judge(s). The plaintiff and defense counsel groups should then write legal memoranda for and against a motion to dismiss for failure to state a claim on the state law side of not more than 35 pages. The judge group should receive their papers, hear arguments unless they simply wish to decide based upon the submissions, and then decide the City of Charleston dismissal motion addressing the substantive law in a written, reasoned judgment of not more than 30 pages. The thirty-page limitation is for any “majority” judgement. Should you have a dissenting “minority” within the judge group, you are encouraged to write also a reasoned “dissenting” opinion on the substantive law of not more than 10 pages to point up the real differences. If the judge group does produce a dissenting opinion, we shall lower the maximum length of the majority opinion to 25 pages. I actually want you to think this through, so you get a sense of what climate litigation might actually look like substantively.

Climate Justice and Other Aspects. We are interested in the City of Charleston litigation not only as of local interest, but also because it is generally representative of the hard questions encountered by practically all coastal urban areas affected by climate change.  So we would like you to focus particularly on the distributive justice (or climate aka environmental justice) effects, while developing your own investigations beyond the law books. For those purposes, you shall be talking with 3-4 outsiders as part of your fact gathering process (presumably via zoom, teams or skype). We shall arrange for such zoom or similar calls lasting 45-60 minutes (one call with each outside person including representatives of all three different groups–  everyone in the class is welcome to show up, we just want to limit the time donated by the outside folks and enable scheduling to accommodate them).

For the basics of environmental justice alongside Charleston specifics, you shall talk with Christopher DeScherer, Esq. as managing attorney at the Southern Environmental Law Center’s Charleston office (and anyone else from the SELC he wants to include on the call). 

Mr. DeScherer wrote a comment, dated June 19, 2020, on behalf of the Coastal Conservation League and others on the Corps of Engineers proposal to build a flood barrier wall around the Charleston Peninsula, but noted the specific exclusion of Rosemont and Bridgeview Village. 

(Meanwhile, you will note in two places the City of Charleston’s climate change complaint alleges negative effects generally on minorities and the poor.) Disproportionate effects on minorities and the poor are a common thread in climate change (climate justice), so Mr. DeScherer will talk about what SELC sees customarily in their practice, and how they think to respond in a practical sense.

For more details on climate justice and the specifics in Metro Charleston, you shall talk with Professor Kristin Dow as environmental geographer in the USC Geography Department, who works a lot in Charleston and is familiar with climate change impacts, politics and demographics in the Metro-Charleston area.

The Sher Edling East Coast lawsuits do not seem to be a coincidence, but seem part of a broader climate change litigation strategy, so beyond looking at their complaints and comparing them to the City of Charleston lawsuit, you shall talk with Amy Armstrong, Esq. as Executive Director and General Counsel of the South Carolina Environmental Law Project, concerning the considerations that go into how lawyers approach strategic litigation or regulatory commentary in terms of generally trying to change the law in areas like climate change, or environmental law more generally. How do you consciously go about trying to change the law to fit current circumstances?  Are individual lawsuits pursued more to secure an individual remedy, or to heighten attention to serious problems as part of a longer-term approach? What does it mean to file pattern lawsuits, where you presumably seek to shape the direction of (climate) law’s development? What does it mean as climate change issues may achieve a higher general consciousness in political terms, as perhaps will result from the IPCC Sixth Assessment as it appears in pieces moving forward into 2022?

We would like you to talk also with someone from either a leading NGO or public body concerned with climate change (basically all coastally-oriented NGOs and public bodies are now concerned, as climate change’s effects become more visible), or with a superior understanding of physical oceanography or marine engineering as applied to Charleston’s issues. The point is to provide further in-puts either on the political rather than legal sides, or a better understanding of the science and engineering options, but that person is TBA, because with its lawsuit already filed so you should not talk with City representatives.

Finally, as a separate written output for the climate justice segment of this assignment, things have taken off in legal terms with environmental justice in federal law.  Please take a look first at the text of the Climate Equity Act of 2020, now H.R 8019 116th Congress, cosponsored by Kamala Harris and Alexandria Ocasio-Cortez, see also Kelley, “Harris, OcasioCortez introduce environmental justice bill” (The Hill, 08/06/20).  The bill was filed shortly before Harris was selected as the Democratic vice-presidential candidate, and she since has been busy otherwise.  The bill went nowhere in the midst of an election year, but now the climate change and justice material seems to have migrated into the $3.5 Trillion draft budget reconciliation bill, at the same time as the EPA seems to be looking at environmental justice for regulatory purposes, see Mock & Lowenkron, “The Infrastructure Bill is a Trillion-Dollar Test for Environmental Justice” (Bloomberg Citilab 08/11/21).  Candidly, the Harris and Ocasio-Cortez bill still needed some work because it was drafted primarily to mandate and create an institutional structure for OMB and agency consideration of environmental justice issues as part of federal rule-making, plus at the end it mandated similar considerations for “federal investments.”  The federal investment section of the draft statute is fairly minimal (seems an afterthought, although it might have been intended solely as jurisdictional grant, with the actual rules to be developed as regulations by agencies).  If you look closely at the definition, it would seem to include federal grants and loans within the scope of “investments.”  Harkening back to Charleston, it seems very likely that any eventual climate change remediation project will rely at least in part on a federal grant or loan, constituting a federal investment within the meaning of the draft statute.  So “federal investments” in terms of climate change loans or grants look to be a growth industry.

You should be well-informed on the topic of climate justice in the Charleston setting, with some sense of what the representative problems may be, as well as the problems of where to draw the lines on remediation.  Write a draft climate change grant eligibility regulation implementing the “federal investment” rule’s intent under the draft Climate Equity Act of 2020, or other sources like on-going articulation of EPA rules to add climate justice concerns to the mix.  It would not hurt to have a functional climate change “federal investment” rule incorporating a justiciable standard.  On the one hand, it should pay attention to the idea that environmental justice means some consideration of distributional justice in evaluating such climate change grants.  On the other hand, resources are limited, and you cannot fix every problem.  So where do you draw the line, which is a broader problem for climate justice?  Should Rosemont and Bridgeview Village have been included inside the flood wall as a condition to federal funding, and, if not, what should they be owed?  If you answer that they are entitled to a buy-out if they are not protected, what is a realistic “market” price in an increasingly flood prone area?  What does it mean if most of the traditional affordable housing in expensive coastal areas like Charleston might be wiped out by flooding as a result (but on the other hand, if it were protected might be lost instead to gentrification, in short order)?  Please draft a rule of not more than five pages, then add a short commentary of not more than four pages on how your exploration of climate justice aspects with the individual speakers informed your own rulemaking exercise, and how you think your rule would be applied under Charleston’s general circumstances.  It is hard enough doing climate change adaptation planning generally, so how does it work when you implicitly must combine the adaptation exercise with urban planning?

Beyond strategy, the really interesting question in Charleston is likely to be how Charleston’s protection zone and associated approach are ultimately defined, and who it encompasses, with distributive overtones in terms of property prices, coastal retreat, etc. So while everyone likes Historic Charleston, why is the townhouse owner on the Battery more deserving than the ordinary homeowner at Folly Beach, or in low lying majority-minority neighborhoods, particularly when a majority of the funding arguably must come from the outside? There will be a distributional justice side also to the nationwide scrum for limited federal and state funding for climate change adaptation purposes, so best we try to understand the difficult choices in advance. Presumably, to succeed getting the initial $2 billion means the narrative must be competitive beyond local boosterism in Charleston, although the Charlestonians are rightly proud of their city.  You should commence thinking in concrete terms about the distributional consequences of climate change adaptation using the local example, and what it tells us writ large about how to deal with distributive effects also in international environmental climate change law.  But remember, the record is that the US has shied away from entering into international environmental law agreements with distributive overtones, from LOS to CBD and the Kyoto Protocol.

Copyright 2020–21 © David Linnan.

Border Adjustment Taxes (Environmental Tariffs) Problem

The concept of border adjustment taxes aka border adjustment tariffs aka carbon tariffs is part of a technical discussion in GATT/WTO international trade law concerning how a GATT/WTO member state subject to certain treaty obligations like the “most favored nations” principle in trade law might unilaterally raise its domestic environmental pollution standards without thereby disadvantaging its domestic producers via a higher cost structure compared to imports. This is a highly complex technical problem as a matter of trade law, which red hots may review as a matter of GATT/WTO law in detail by reading Condon & Ignaciuk, “Border Carbon Adjustment and International Trade:  A Literature Review” (OECD Trade & Environment Working Papers 2013/06); Paulwelyn, “U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law (Duke Nicholas Institute, 2007). Suffice it to say that it appears to be lawful as a matter of trade law, but would presumably draw a WTO dispute resolution challenge as discriminatory, if such an import levy actually were implemented.

Putting aside the technical details for the moment, the practical issue is whether a country may levy tariffs based upon the carbon generated by energy consumption in the offshore manufacturing process? So, for example, if (developed) Country X were to declare that its steel producers could not emit more pollution than a certain amount per ton of steel produced, its steel producers might be obligated to replace their “dirty” old coal-fired blast furnaces with “cleaner” modern natural gas-fired or even electric blast furnaces (and ultimately, solar or hydrogen?). The new furnaces and their fuel might cost more, but they would pollute less. Nonetheless, (developing) Country Y perceives its comparative advantage in trade in producing cheaper steel using the old dirtier coal-fired blast furnace (in a classic jobs versus the environment trade-off), so the question from the perspective of Country X is whether its steel industry must suffer a competitive disadvantage vis-à-vis Country Y’s steel industry if Country X unilaterally raises its (carbon) pollution standards?  This sounds technical, but is a common-place as a political matter in conjunction with unilaterally raising national environmental standards. The local business people invariably first object to the increased costs of regulation, but then begrudgingly will say they can accept it on one condition. If government does raise domestic environmental standards and so their costs, the standards must apply to foreigners too so that increased regulation does not make their local industry uncompetitive, with the result that Country X steel jobs move offshore, etc.

Border adjustment taxes were mostly the subject of academic discussions for circa 15 years, but had not been the subject of any real GATT/WTO trade law dispute (like an abstract discussion of aggressive tax strategies in legal terms prior to implementation and the IRS actually challenging them in litigation as tax evasion).  But most recently, the border tax has reared its head in conjunction with the EU’s new “Green Economy Program” under a concrete proposal to take effect in 2026. See Krishnankutty, “How EU’s proposed carbon border tax will work & why India is among the nations opposing it,” The Print (07/27/21). Now the US, UK and Canada are actively considering it too, and China has come out against it, meanwhile the matter will apparently be on the agenda for the November 2021 Glasgow UNFCCC COP 26. See Chaudhary, “India will Oppose ‘Unfair’ Carbon Border Tax Plans at COP26” (Bloomberg Green 06/29/21);  Mohan, “BASIC nations oppose EU’s plan to impose a ‘carbon border tax’” (Times of India 04/10/21).

That is all well and good, but why is the challenge coming at the environmental UNCCC COP26, as opposed to via the economic law GATT/WTO process? After all, this is really a measure theoretically governed by the GATT/WTO agreement rather than the UNFCCC as international environmental treaty. Does not black letter treaty law tell you that the Indians are complaining in the wrong place, and what do you make of the basis for the objections found in the linked articles? Or is this simply the same kind of climate justice issue that sank the Kyoto Protocol in US eyes (differential treatment of developing countries), given that we shall see when we reach formal discussion of the UNFCCC, Kyoto protocol and Paris Agreement that the Paris Agreement as more political rather than legal agreement (because it is based on individual countries transparently declaring their national decarbonization plans and timetables, but provides no real sanctions beyond political embarrassment for failing to meet them).

The reason for bringing this up here rather than later when discussing the UNFCCC directly, is the question whether this is all about distributive or climate justice claims generally, and simply reflects the ideas behind Dr Mahatir’s speech you read for Unit 1?  What do we owe developing countries in the climate change context, if anything? Is it all that simple, and can you propose any red-line solution to separate international economic and trade law from international environmental law?  We shall not really talk about trade law in this course, but one of the issues you should be aware of is that the US would likely challenge in any WTO reform discussions the traditional concept of special and differential treatment for developing countries in trade law, or at least would desire to cut it back to “least developed” countries (in which case countries like India and China in particular would lose special and differential treatment, although the Sudans, Syrias and Laos as least developed countries might still enjoy special treatment and status). 

Are we looking in the environmental context at the same kind of hidden desire to limit special and differential treatment at most to the much smaller number of least developed countries? This matters to developing countries generally in terms of carbon generation, to the extent the preferred national development strategy through the early 2000s involved rapid industrialization and so rapidly rising carbon generation. Countries worked themselves up the export ladder starting with textiles and shoe manufacturing, before advancing to heavy industries alongside consumer electronics, then finally achieving the highest level of precision manufacturing in terms of pharmaceuticals, chemicals and computer chips. So that is why the developing countries care about border adjustment taxes’ potential for making their exports less competitive, but is that really an environmental concern? How are they supposed to become richer, if forced to become greener early in the process? But who has the better part of the argument, scheduled for November 2021 in Glasgow? Is the case the same or different for cutting back on differential treatment in the international environmental law area, as compared to the international trade law area?

Copyright 2020–21 © David Linnan.

LAWS666 — Fall 2021 Resource List

Merriam-Webster’s Dictionary online defines climate change as “significant and long-lasting change in the Earth’s climate and weather patterns.”

It defines biodiversity as “biological diversity in an environment as indicated by numbers of different species of plants and animals.”

The reason for calling out both climate change and biodiversity upfront is that “climate change” seemingly receives all the media attention, but as a scientific matter the consensus is that we are actually experiencing two related but intertwined crises from the viewpoint of international environmental law and practice. The first challenge is climate change (e.g., increasing amounts of GHGs or Greenhouse Gases are causing general average warming, shifting and sometimes more violent weather patterns, sea level rise, etc.). How far things may go is dependent ultimately on whatever final GHG concentrations may be present in the air in the next 50-100 years (and so there are on-going discussions of changes implicit in 1.5 degree centigrade increase, versus 2 degree centigrade increase, versus 2+ degree centigrade increase, etc.).

The most basic treaty law addressing climate change is the 1992 UN Climate Change Convention or UNCCC, which basic convention the US joined, but which importantly has subsequent substantive protocols (amendments) that the US has not joined. For example, the UNCCC’s 1997 Kyoto Protocol, which received enough ratifications to become a valid treaty amendment, but from the effect of which the US removed itself as a matter of treaty law principles in not joining in the amendment. Then, successively, there was the 2015 Paris Accord which the US joined under the Obama Administration, left under the Trump Administration, and rejoined under the Biden Administration. You be the judge, but we seem to have a problem making and sticking with choices in this area.

The second challenge involves biodiversity, which has an independent importance in scientific terms, but with a basic link to climate change via the change or loss of habitat resulting among other reasons from climate change. For example, locals claim that many animals and plants are migrating north from traditional areas at the approximate rate of 50 miles annually in North Carolina’s Blue Ridge Mountains as a result of habitat change.  So climate change and biodiversity concerns are not solely the province of Lowcountry or coastal areas fearing flooding. Meanwhile, habitat “creep” is also not without economic consequences, as with Southern pine beetle infestations making a comeback in South Carolina’s commercial pine forests. The most basic treaty law addressing biodiversity is the 1992 Convention on Biodiversity or CBD, which the US chose not to ratify.

Legal approaches to climate change and biodiversity are really rooted in the early 1990s, particularly as hatched at the Rio Conference of 1992, which effectively set the legal stage for our current scientific and economic choices. There were effectively two alternate paths contemplated at the time, particularly for climate change, namely “mitigation” (meaning measures to avoid climate change by holding down GHG concentrations and so temperatures, which would presumably automatically benefit biodiversity if habitat were preserved), versus “adaptation” (meaning measures to adapt or avoid the effects of climate change, for example building seawalls, raising buildings, etc. in Charleston in an attempt to avoid the effects of rising sea levels attendant upon climate change). As a practical matter, mitigation efforts may continue, but currently we are well on the way generally to adaptation, employing as example the proposed surge protection wall under discussion in Charleston as a result of the Dutch Dialogues and subsequent Army Corps of Engineers study. The scientific consensus now is that we are already experiencing climate change, the question is rather how far it may go looking out to 2035 (Charleston is projected to have significant king tide and similar flooding by then, not to mention concerns about potential higher hurricane surges), 2050 (the date perhaps commonly chosen for significant changes on a national basis), or 2100 (the date perhaps commonly chosen for longer term significant global changes)?

Two international organizations of differing stature, the well-recognized Intergovernmental Panel on Climate Change or IPCC and the less well-known IPBES or Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, focus on the issues arising at the intersection of climate change and biodiversity loss.  You probably experienced recent press coverage of the initial tranche of the IPCC’s Sixth Assessment published in early August (from Working Group I, covering the physical science basis). Why not access the primary materials directly yourself by reading at least the policymakers’ summary of Part I below? There are two more tranches due to be published during 2022 (focused more on adaptation and mitigation possibilities), as well as the final synthesis document incorporating all three parts. The actual assessment documents run to thousands of pages, which is why most lawyers stick to reading the summaries for policymakers (SPMs) running 25-50 pages.

General Resources

Intergovernmental Panel on Climate Change: Created in 1988 by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), the objective of the IPCC is to provide governments at all levels with scientific information that they can use to develop climate policies.

The IPCC’s Fifth Assessment (2013-2014) was the most recent.

The IPCC’s Sixth Assessment is in process now, but its first part on the physical science was already released in early August 2021 and can accessed here.

Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) is an independent intergovernmental body established by States to strengthen the science-policy interface for biodiversity and ecosystem services for the conservation and sustainable use of biodiversity, long-term human well-being and sustainable development. It was established in Panama City, on 21 April 2012 by 94 Governments.  It is not a United Nations body. However, at the request of the IPBES Plenary and with the authorization of the UNEP Governing Council in 2013, the United Nations Environment Programme (UNEP) provides secretariat services to IPBES. The site offers numerous resources including videos, policy  documents and assessment reports by region, country, and topic. As a practical matter, IPBES with headquarters in Bonn, Germany traditionally has the reputation of being an organization open to all States, but supported chiefly by the Europeans.

There is some increasing cooperation, as witnessed by the IPCC-IBES Workshop Report on biodiversity and climate change (from June 2021). 

United NationsTreaties, international agreements, and associated documents.  The UN is the organizing body for periodic conferences of the parties (COP) meetings of the UN Framework Convention on Climate Change (UNFCCC), particularly COP 26 or the Glasgow Climate Change Conference to be held Oct 31-Nov 12, 2021 in Glasgow, UK.  To understand and follow this and other UNFCCC COPs, you may access said information via the UNFCCC webpage.

U.S. 4th National Climate Assessment (U.S.), Volume I (2017)

U.S. 4th National Climate Assessment (U.S.), Volume II (2018) – Chapter 19 addresses issues in the Southeastern U.S., including a case study of Charleston’s sea level rise.

Flood Factor: Site enables searching of individual addresses to get an assessment of flood risk. Sponsored by First Street Foundation. First Street Foundation is a non-profit research and technology group defining America’s flood risk. (Get a data set for Charleston by entering Charleston, South Carolina in the search box on the home page.)

NOAA’s Digital Coast: NOAA’s Office for Coastal Management maintains a portal for data and tools for data interpretation and visualization. Includes NOAA’s https://coast.noaa.gov/slr/. Note: Some of these tools are sophisticated and provide tutorials for new users.  Take advantage of the tutorials and the tools will be easier to use.

Climate Central is a non-profit that analyses and reports on climate science. Includes interactive mapping tools, climate science reports, and multi-media resources on climate change.

World Trade Organization’s Environmental Database: contains all environment-related notifications submitted by WTO members as well as environmental measures and policies mentioned in the Trade Policy Reviews of WTO members.

US Bills on climate change:  Representative Alexandra Ocasio-Cortez and Senator Kamala Harris introduced the Climate Equity Act of 2020 in their respective legislative bodies. The bill in the House is H.R. 8019.  In the Senate it is S. 4513

The 117th Congress (2021-2022) has seen a proliferation of climate change bills.  To find them, go to https://www.congress.gov/, set the search bar filter to “Legislation” and enter a keyword search for “climate change” (it’s useful to put the phrase in quotes).

More Recent Developments on the Business (ESG) Side

In May of 2021, Exxon Mobile lost a proxy fight that resulted in three new board members being seated by a tiny activist investment firm that is concerned with ESG issues. The activist investor has promised to push Exxon to fight climate change. 

The U.S. Securities and Exchange Commission has mounted a response to investor concerns regarding climate change and other ESG issues. It has created a Climate and ESG Task Force in the Division of Enforcement. The Task Force will be led by Kelly L. Gibson, the Acting Deputy Director of Enforcement, and will develop initiatives to identify ESG-related misconduct.

Investment banking company Goldman Sachs has issued a series of research reports:

Goldman Sachs has also produced a series of streaming videos discussing the issues in these reports:

You can find these and other streaming videos, along with more research reports, at Goldman Sachs’ Carbonomics page. The videos will be found under the label “The Daily Check-In.”

Goldman Sachs is not alone, on the example of JP Morgan, with a bit of a difference emphasis in questioning the speed at which people seem to assume that an energy transition and decarbonization will take so long:

Eye on the Market:  2021 Annual Energy Paper (JP Morgan Asset and Wealth Management)

Green Finance: What is Green Finance? 

Overview from the International Trade Centre

GGKP: The Green Growth Knowledge Partnership (GGKP) sponsors a number of information portals focused on developing a green economy, including the

Green Finance Platform.

Article on Bloomberg.com

Reed Landberg, Annie Massa and Demetrios Pogkas, Green Finance Is Now $31 Trillion and Growing, June 7, 2019

Reference Librarian Eve Ross has created a LibGuide on Green Finance resources.

Thomas Cooper Databases: Access from Thomas Cooper’s database page

GreenFILE: The Thomas Cooper Library does not have a database specifically dedicated to international environmental law, but GreenFILE recognizes “international environmental law” as a subject term. Best research strategy: Select the GreenFILE database from Cooper’s database page. When you get the search template, choose “subject terms” from the “Select a Field” dropdown menu and type “international environmental law” into the accompanying search box. Use other Boolean fields if needed. Use options in left-hand sidebar to filter results.

Agricultural and Environmental Sciences Collection: Best search strategy: Access database and type in the search box (example: international climate). The search engine’s auto-complete feature will populate a number of choices, so you can select one if you find one you like, but you can also run a keyword search without selecting any of the suggested choices. Use options in left-hand sidebar to filter results. Note that the results in this database contain dissertations. Warning: this database is not guaranteed to offer a full-text format for every result discovered.

ASFA: Aquatic Sciences and Fisheries Abstracts: includes environmental law on water environments. Note that this database primarily contains abstracts, but the records frequently lead to pdfs of original documents.

Jstor:  archive of scholarly articles from numerous fields of study. Access through the law library’s electronic resource link or from Thomas Cooper’s database page.

Research Guide: Environmental issues frequently overlap with business and economic issues. Thomas Cooper Library offers a research guide to international business & statistics – free web resources, Cooper databases for international business, brief instructions on navigating the databases

Bibliographies

Bibliographies, although they become outdated fairly quickly, are good starting points to use in finding resources. Bibliographies will give you listings of resources on a given topic. If they have become outdated, you can check the catalog for more current editions of the resources listed. You can search for bibliographies in the USC Libraries catalog. In the search bar at the top of the page, type: bibliography climate change.  Restrict the date if you only want current entries.

Many of these resources are online, and most of the physical volumes will be located outside of the law library. We share our new catalog system with the entire borrowing consortium of SC academic libraries, so to filter results by library use the “Library” filter on the left-hand sidebar of your catalog results.

Examples:

Global climate change pathfinder: a guide to information sources Print resource available at Thomas Cooper Library, Call Number QC981.8 .C5 P54 1992

Parris, Adam, author.; United States. National Oceanic and Atmospheric Administration. Climate Program Office, issuing body. 2012 (online resource – pdf)

If you don’t find anything you like in the catalog, a Google search will also turn up bibliographies.  Publishers, government agencies, and academic institutions might be the providers.  Suggested search:  bibliography climate change

Examples:

Law-Related Resources

Hein Online:  Scholarly archive of pdf documents; contains databases for international treaties and agreements, as well as UN documents collection.  Also contains documents related to international environmental law.  Best search strategy: conduct a catalog search within Hein for international environmental. 

Access through the law library’s electronic resource link or from Thomas Cooper’s database page.

American Society of International Law (ASIL):  Good collection of general information; some access restricted to members. Topics section offers pages on International Law and Climate Change (currently under development) and Environment, Health, Science, & Technology, and International Economics; contains links to agreements and reports.

Lexis:  Practice Area on International Law (no practice area specifically for international environmental law). 

Congressional Research Service (CRS):  Search for “climate change” in the search box on the homepage.  Results filtered on the left-hand sidebar

House of Representatives:  Get hearings on climate change.  From search bar in upper right of homepage, type: hearing climate change (works on any other keyword, such as sustainability)

ProQuest Congressional:  Research tool accessed through the law library’s electronic resources page.  Access to congressional documents and activity, including bills, committee reports, transcripts of testimony from congressional hearings, and debates and statements from members of Congress. Full-text information can be retrieved using search terms or document numbers. Most productive search strategy to get hearings on the Fourth National Climate Assessment:  The ProQuest Congressional homepage will likely default to “Congressional Publications.”  Accept this default and use the link for the “Advanced” search.  In the “Content Types” on the left-hand sidebar, uncheck everything but Hearings, CRS Reports, and House and Senate Documents/Reports. In the search box in the upper middle of the screen, type “Fourth National Climate Assessment” (typing 4th doesn’t work as well).  Using the dropdown for “in” change the location to Anywhere.  You won’t need to set the date because the Fourth National Climate Assessment was done in 2018, so won’t come up in other time frames.

State or Municipal Climate Change Lawsuits

On September 9, 2020, the City of Charleston filed a lawsuit against 24 fossil fuel corporations over issues related to climate change, concerning which parallel procedural developments you may follow here.  Other municipalities and states have filed their own climate change suits. The Sabin Center for Climate Change Law at Columbia Law maintains a page that tracks domestic climate change cases generally by category.  (The Charleston litigation is basically part of “climate change deception” pattern litigation involving 6-7 on-going state and municipal government cases, which you can follow on the website of Charleston’s out-of-state environmental law counsel;  the Charleston case has been paused temporarily as the parallel Mayor & City Council of Baltimore v. Chevron case filed in 2018 has gone up to the US Supreme Court on procedural issues–  removal.  The defendants seemingly desire to remove such cases to federal court, and presumably would strive to consolidate them in the longer run, but the case against such removal and consolidation is that in the case of novel state-law claims involving climate change all such cases should be left in state courts so that the novel state law claims could eventually be decided by the various state supreme courts–  of course, the defendants presumably will raise a variety of preemption and similar claims too, so these cases may bounce between state and federal courts for some time yet.)   What effect, if any, might you anticipate following the increased attention to climate change produced by significant media and similar attention being paid now to the IPCC’s Sixth Assessment?  The Columbia Law site also offers a portal to non-US climate litigation.  Information on the recent US state/city lawsuits may also be found in the link for “Common Law Claims” in its portal for U.S. Climate Change Litigation.

Michael Burger, Executive Director of the Sabin Center, writes extensively on climate change law.  You can find a list of his selected publications here.  If you can’t link directly to an article from this list, use the citation information to search in the online database service of your choice.  If that doesn’t get you access to the article, contact a member of the reference team in your law library for help.

The US Energy Information Administration has created a profile for South Carolina (and the other states).  This profile provides data on energy use, resources, and industry in the state.

The EPA provides data on greenhouse gas emissions from the transportation sector, and has created a portal containing information about greenhouse gases and emissions in the U.S.

Surging Seas Risk Finder:  maintained by the non-profit Climate Central, this site offers data and mapping tools that visualize an area’s flood risk, social vulnerability, population, income, and other variables.  Get data and map indicators for Charleston by entering the city’s name in the search box on the landing page.

City-data.com:  The site includes interactive data tools that let you mix and match numerous variables and generate online reports, as well as provides pre-made data sets if you enter a location (City of Charleston, Charleston County).

Research Guide:  Thomas Cooper offers a guide on geospacial and climate data. Geospatial means relating to or denoting data that is associated with a particular location (like Charleston, SC).

Journal Article:  Shana Jones, Thomas Ruppert, Erin L. Deady, Heather Payne, J. Scott Pippin, & Ling-Yee Huang, Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J. Envtl. L. 67, 70 (2019)

This Article uses roads as a case study to explore how sea-level rise is altering planning, maintenance, and funding for public infrastructure.  South Carolina is one of the four states that were studied for the article.  Article is available on Westlaw, Lexis, and Hein Online.

Think Tanks: Websites and Resources:  offer research data, blogs, articles, videos, commentary, and analysis.

Brookings Institute: “The Brookings Institution is a nonprofit public policy organization based in Washington, DC. Our mission is to conduct in-depth research that leads to new ideas for solving problems facing society at the local, national and global level.”  Website offers links for global development and international affairs.

Center for Strategic and International Studies: “The Center for Strategic and International Studies (CSIS) is a bipartisan, nonprofit policy research organization dedicated to advancing practical ideas to address the world’s greatest challenges.”

American Enterprise Institute: “The American Enterprise Institute is a public policy think tank dedicated to defending human dignity, expanding human potential, and building a freer and safer world.”

The Cato Institute: “The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets, and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.” 

Peterson Institute for International Economics: “The Peterson Institute for International Economics (PIIE) is an independent nonprofit, nonpartisan research organization dedicated to strengthening prosperity and human welfare in the global economy through expert analysis and practical policy solutions.”   Offers research, blogs, news

Research help:  If you need research help, you are welcome to contact Rebekah Maxwell by email (rkmaxwel@law.sc.edu) or Teams.  You can also catch her at the library’s reference desk, but days will vary so prior contact will be helpful.

Copyright 2020–21 © David Linnan.

Energy Transition and Technology Forcing Problem

This is a problem to be assigned to a group to resolve and report back. As part of your first assignment, you already read Goldman Sachs’ report entitled Carbonomics: The Future of Energy in the Age of Climate Change (Goldman Sachs Equity Research 12/11/19, as redacted). Note that this is a presentation about both current and future economic and technological developments in the fossil fuel and renewable energy sectors taking into account climate change in charting decarbonization. But Goldman’s competitors also produce similar research, such as the J.P. Morgan report “Eye on the Market:  2021 Annual Energy Paper” (JP Morgan Asset and Wealth Management, 2021).  (The old joke is that if you are going to predict the future, better you should do so often to bracket all the potential results, so do not expect all projections into the future to reach the same results.) Are both reports of the same mind concerning potential decarbonization, its pace and the necessary technology to accomplish it?

On the whole, JP Morgan seems not quite as optimistic as Goldman. Why is that, and is the difference about pace of change, lack of technology, different regulatory approaches, or what?  What is the relative wisdom of simply regulating by articulating future emissions targets, when the technology to achieve such targets does not exist yet (normally referred to as “technology forcing,” on the theory that if you give the private sector the proper incentives, they will find a solution, like forward-looking CAFÉ fleet-level miles-per-gallon standards)? What are the other choices, and is this better understood as a regulatory or a legal challenge, or simply restructuring the economy?  Having said that, someone like the general counsel of an energy or automotive company will have to deal with the regulatory concepts all the time, and the entire automotive industry is investing billions of dollars in EVs, including battery technology and the like, see Bullard, “Automakers are Investing in EVs like They Mean It:  Sales Targets are Good.  So is R & D.  But Capital Expenditure is the Real Commitment.”  (Bloomberg.com, 08/05/21);   Denning, “Biden’s Electrical Vehicle Target is All About the Drive:  Can he really electrify the car market?  It doesn’t matter.” Bloomberg.com, 08/05/21;  Smith, “ America Squandered Decades Living for the Moment.”  Bloomberg.com, 08/05/21).   How can you deal legally in the regulatory sphere with something that does not exist yet, but everyone seems to think will be coming down the pike?  What kind of (legal) allowances need you make for regulatory uncertainties and future developments?  In a nutshell, what happens if you do something like finance electricity generating facilities including a variety of undertakings over time, then the regulatory framework simply shifts (think introduction of a real carbon tax)?  How to address that kind of legal and regulatory risk?  How many different kinds of legal and regulatory risks are buried here?  What exactly does managing legal risk mean here longer term, looking at climate change, and for that matter biodiversity?

Copyright 2020–21 © David Linnan.

BP’s Tangguh LNG Project and the Phantom Freeport Problem

Concerning the implicit comparison of the Freeport Grasberg mine and the Tangguh LNG project, we shall appoint a student group to work on this problem and report back. The practical insight in the Freeport-McMoran Grasberg situation was that the Papuans as Melanesians from a stone age culture within living memory faced off against a Western investor and (mostly Javanese) Indonesians from a modern culture, and as a result were essentially placed in the same position as nineteenth century American Indians. There was a struggle for land in which the locals were largely moved off their traditional lands to enable its exploitation by the newcomers, at the same time as Papuans largely lost their demographic majority in the overall local population through government programs encouraging inward migration from Java and other more developed areas of Indonesia. Meanwhile, viewed as a case study BP’s Tangguh project turned out differently. Why was that?

The Indonesian government adopted a somewhat paternalistic attitude towards the Papuans, while letting be known their impatience at their seeming lack of gratitude for its development efforts, especially in the Freeport case. Meanwhile, the Papuans tend to be regarded less than favorably by many ordinary Indonesians. They look different as Melanesians, they speak different languages, and are regarded as primitives not least because their customary attire may consist solely of a penis gourd (nonetheless, there are Westerners who praise them as a sophisticated culture from which we should learn, see Jared Diamond, The World Until Yesterday (2012)). There is a small but stubborn guerrilla independence movement among some Papuans, drawing heavy-handed Indonesian military responses from time to time (against separatism, but in practical terms pressuring local villagers to reveal their haunts). However, the Papuans’ biggest grievance is essentially loss of traditional lands and so their way of life (as opposed to what might be called impingement on any sense of budding Papuan nationalism). So are mostly academic claims of indigenous peoples’ third generation rights under a human rights analysis recognized as a matter of state practice, and what is the legal significance of such a failure?

Tangguh is a multi-billion dollar BP project located also in Irian Jaya, Indonesia like Freeport’s Grasberg project, but it is the antithesis of Freeport Grasberg, and they recently signed contracts on expanding Tangguh from one to three LNG trains at a cost of several billion dollars.  This differential treatment is partially a factual predicate for saying that Freeport lost several billion dollars essentially because of their questionable longer term behavior leading to them being forced to divest a majority of the Grasberg project in order to secure an extension of their mining concession. As lawyers, you should be able to reverse engineer BP’s concerns that Tangguh not turn into another Freeport, and to understand the structure of the social and environmental framework to avoid another Freeport, or more generally the kinds of cases that formerly were filed regularly under the ATCA. So first reread closely BP’s efforts under the linked sources on environmental and social effects of the Tangguh LNG project, then please articulate in detail the legal basis of BP’s strategy and approach with a view to being able to replicate it elsewhere. What are its key elements, and how was it implemented?

Copyright 2020–21 © David Linnan.

Whatever Happened to the ATCA Shell Litigation? (Actual Foreign vs US Litigation)

This is a problem to be assigned to a group to resolve and report back. Imagine that you are now in the Office of the General Counsel of the oil multinational Royal Dutch Shell headquartered in the Netherlands, with significant administrative and financial operations in the UK, plus assets and operations in 20+ countries. Your problems arise out of difficulties in Shell’s longer-term operations in the Niger River Delta in Nigeria (Ogoniland). You have faced several waves of litigation in different countries, and at least one of your cases helped “make law” in the recent narrowing of the scope of the ATCA at the US Supreme Court level. With the benefit of hindsight, which fora were better or worse for defending the local litigation, and why? Your task, as delivered to you as junior lawyer, is to write for the general counsel an “after action report” evaluation of the differing court cases over time, and whether disputes would have better been pursued in one forum or another.

Did the General Counsel’s Office do an effective job managing legal risk at all levels in all cases in all countries, or what might have been done better? How do you effectively manage multinational litigation over time, particularly once you realize that your developing country operations may generate it repeatedly?  (In that sense, litigation is not a one-time occurrence from the MNC perspective). Why is that, and what can be done about it?  What is the cross-over between the litigation and the company’s ESG profile generally?

Copyright 2020–21 © David Linnan.

Monitoring Potential Foreign Litigation Problem (Potential Foreign vs US Litigation)

This is a problem to be assigned to a group to resolve and report back. Imagine that you are now the general counsel of a multinational natural resources company headquartered in the US with assets and operations in twenty countries. Your job is to keep your company-client out of trouble, hopefully proactively. How do you address US versus foreign legal exposure issues, both in substantive terms and in litigation forum terms? If you as junior lawyer were tasked to monitor the Corporate Legal Accountability Portal for your General Counsel boss, what do you tell him or her? As sample, if you want to see how it is being done now by Freeport after the fact, see their corporate website at Freeport McMoran Copper & Gold, Inc. (note where all they do business and look particularly at the sustainability tab under operations). But what do you think, is “sustainable development” reaching all the way back to the Brundtland Report? And are courts your enterprise’s only concern and audience, as witnessed by the Norwegian Petroleum Fund’s divestment decision?

Copyright 2020–21 © David Linnan.

Fukushima Daiichi Nuclear Disaster Problem

For factual background, read through the Fukushima Daiichi nuclear disaster Wikipedia entry. Now come your specific hypotheticals to address:

a. Assume you are a lawyer in the South Korean Ministry of Foreign Affairs tasked with representing the interests of Korea. How do you analyze the following three problems on the Korean side? The first problem is that the Government of Japan told South Korea nothing about the nuclear accident at the time, instead simply insisting that the situation was well in hand. So the Ministry of Foreign Affairs is somewhat embarrassed that they accepted the Japanese government’s story until journalists uncovered the true extent of the Fukushima accident (at which point they were referred to as Japanese “puppets,” a serious insult in Korean terms, causing the South Korean Foreign Minister to resign from office).

b. The second problem is that Korean fishing trawlers on the high seas in the Sea of Japan traditionally catch and sell valuable fish year-round, but their commercial buyers immediately dried up as soon as the Fukushima accident occurred. After all, who wants to eat radioactive sushi? Assume that six months later the Korean trawlers still cannot catch fish in the Sea of Japan, because retail seafood customers simply reject eating fish from the Sea of Japan (and still make jokes about the fish glowing in the dark).

c. The third problem is that the Inchon, South Korea government water desalinization plant, with water intakes from the Sea of Japan, was forced to close for a month in the immediate aftermath of the Fukushima accident. Scientific monitoring of the Inchon water desalinization plant’s Sea of Japan water intakes revealed unacceptable levels of radiation for the entire month (with a profile matching the Fukushima radioactive pollutants which washed into the sea following the reactor accident).

Does Japan owe any legal responsibility under customary international law to South Korea for any or all of these three problems? (Just ignore any treaty law concerning nuclear facilities and emissions, or questions about liability under municipal law; we only want to know the customary law answer(s), but you should analyze the three problems separately under customary law, understood as limited to the Trail Smelter, Lake Lanoux and Nuclear Test case precedents.)

Copyright 2020–21 © David Linnan.

LAWS666 — International Environmental Law

Table of Contents

UNIT 1/15 — Introduction on Background

UNIT 2/15 — Customary Law as Basis for International Environmental Law?

UNIT 3/15 — Human, Development & Other Rights-based Legal Approaches to Int’l Environmental Law?

UNIT 4/15 — Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)

UNIT 5/15 — Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors)?

UNIT 6/15 — Treaty Interpretation and Treaty Process Approaches to International Environmental Law: Package Deal vs. Framework Convention

UNIT 7/15 — Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law (Hidden Economics & Environmental Justice)

UNIT 8/15 — Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)

UNIT 9/15 — Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions, On-Going Negotiations)

UNIT 10/15 Implementation & International Monitoring on the Example of Ozone

UNIT 11/15 Climate Change as the Ultimate Test for the Framework Convention Approach

UNIT 12/15 Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste

UNIT 13/15 1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance

UNIT 14/15 1992 Biodiversity Convention, Sustainability & Indigenous Knowledge

UNIT 15/15 — Enforcement, Natural Resources & Who Decides?

  • Background & Issues
  • Readings & Viewings
  • Problems & Exercises

Copyright 2020–21 © David Linnan.