On 2 April 2007, in Massachusetts v. Environmental Protection Agency, the U.S. Supreme Court held that the Environmental Protection Agency (EPA) has the authority to regulate greenhouse gas emissions from automobiles under the Clean Air Act.   

The petitioners, consisting of 19 private organizations (and later joined by states and local governments), filed a rulemaking petition in 1999 asking the EPA to regulate greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act.  On 8 September 2003, the EPA denied the rulemaking petition on the grounds that: (1) the Clean Air Act does not authorize the EPA to issue mandatory regulations to address global climate change; and (2) even if the agency had the authority to set greenhouse gas emissions standards, it would be unwise to do so at that time. 

In a 5-4 decision, the Court held that: (1) the Petitioners have standing the challenge the EPA’s denial of their rulemaking petition in court; (2) the EPA has statutory authority to regulate emissions of greenhouse gases from new motor vehicles, because greenhouse gases fit within the Clean Air Act’s definition of “air pollutant;” and (3) the EPA’s basis for denying the petition rests on reasoning divorced from the statutory text.  The Court held that the EPA’s policy judgments so far “have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment.” 

On remand, the EPA must ground its reasons for action or inaction in the Clean Air Act statute. 

In other climate litigation news, in March 2007, the U.S. District Court for the Northern District of California held that the U.S. National Environmental Policy Act (NEPA) applies to U.S.-backed overseas projects that contribute to climate change.  Friends of the Earth v. Mosbacher, filed in August 2002, charged that the U.S. Export-Import Bank and the federal Overseas Private Investment Corporation had provided more than $32 billion in financial assistance to overseas energy projects without first evaluating projects’ global warming impacts on the United States. 

Citing lack of evidence, the Court did not rule on whether the specific projects at issue—the Chad-Cameroon pipeline, and energy projects in Russia, Mexico, Venezuela, Indonesia, and China—were subject to NEPA, but is allowing the case to proceed to trial or appeal. 

For the full text of Massachusetts v. EPA, please visit http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf.  For more information about Friends of the Earth v. Peter Watson, please visit the Friends of the Earth website. 

The Need for an ECE Indicator System for Argentina ’s Executive and the Judicial Powers
By María Eugenia Di Paola, Director of Research and Training, Fundación Ambiente y Recursos Naturales (FARN)

This article calls on Argentina ’s Executive and Judiciary powers to develop a system of environmental compliance and enforcement (ECE) indicators. It is based upon research work carried out by different teams in the Fundación Ambiente y Recursos Naturales (FARN) under the coordination of the author. More information on this research is available in English at http://www.farn.org.ar/docs/en_libros.html and will soon be included in the Proceedings of the 2006 Pace Colloquium on Environmental Enforcement and Compliance.

Analyzing these two branches of the State require both related and different methodologies. ECE indicators for the Executive Power seek to measure how enforcement and compliance activities are performed, and generally include input, output, intermediate, and final indicators. ECE indicators for the Judiciary include not only performance indicators but also indicators related to the judicial procedure (e.g. trends in standing, evidence, effects of judgments).

Neither the Executive nor in Judiciary of Argentina has a system of ECE indicators. Nevertheless, the research identified the use of non-systematized indicators in both cases, with certain variations.

The most important conclusion of the research on the Executive Power was the need for an ECE indicators system, with aspects linking to the production, systematization, administration and access to information . We believe it is necessary for there to be a system linking the use of indicators (input, output, intermediate and final outcome indicators) and the generation of information to achieve final outcome indicators. To accomplish that objective, existing capacities should be used and optimized. It would be particularly useful to make the most of existing capacities designed to secure interaction of technical and academic support bodies in this framework. We detected that the latter bodies very often have staff and adequate techniques that could be of use to the State in the development of this type of indicators.

Another important finding is the need to link information on output and outcome indicators with the spending budgeted and executed by the State. The budget per program system, by virtue of its different dates of implementation, leads to varying degrees of development among the different administrations, and provides a suitable framework for the development of enforcement and compliance indicators. The development and use of ECE indicators should be included in the annual environmental report that the National Executive Power has to present to the National Congress, in accordance with the provisions of article 18 of the General Law on the Environment (LGA). The obligation to produce information is stipulated in the same article of the LGA, which is mandated for all provincial and municipal authorities. The budget, with regard to both its preparation and execution, is a particularly useful base and framework for indicators of this kind.

However, these regulations would be strengthened if provincial legislatures and the National Congress, which has the power to sanction laws on minimum standards, were to include in their environmental regulations the design and use of compliance and enforcement indicators by the control authorities. ECE Indicators should not be viewed merely as a formality whose content simply seeks to justify actions by the state, both in proceedings and in results. Rather, the identification, design, and use of indicators would lead to greater inter-institutional and inter-jurisdictional coordination and compatibility, as well as improved overall management. Indicators would also allow greater institutionalized participation of civil society in carrying out a process that truly responds to a global rather than a partial view of problems.

Regarding the use of ECE indicators for the Judiciary, our research confirms the hypothesis posed in the methodology of the investigation, where we asserted that the Judiciary already has information and a series of indicators on access to justice and the environmental proceeding, whose systematization could optimize and contribute to overcoming obstacles in the ability of the justice system to address environmental conflicts. It will be necessary to consider existing information before generating new indicators, i.e. by processing the information already in possession of the Courts.

The research carried out by FARN also reaches specific conclusions on how to most effectively use court management indicators to analyze the organization, development and effects of the activities carried out. The research analyzes indicators on: staff, training, budget, number of cases in general and environmental cases in particular, equipment, technical teams, registers and statistics and publication of jurisprudence. There is also an analysis of a second group of indicators that are linked specifically to environmental proceedings and the different steps involved, taking into account selected environmental cases and the relevant elements identified in relation to the process. This includes: analysis of the jurisdiction and type of action, its particular object, standing to sue and to be sued, precautionary measures, the evidence, the organizations and forms of intervention in the process, costs and fees, the foundations, effects and reaches of the decision, the time and the instances explored. At the workshop to review the results of FARN’s research, magistrates and environmental experts not only analyzed indicators and how to improve them, but also exchanged important information on this issue and identified the need to continue with this type of analysis.

For more information, please see http://www.farn.org.ar.

U.S. EPA to Release Guidance on Which Criminal Enforcement Actions the Agency Will Pursue

Within the next month, the U.S. EPA will release guidance to help determine which criminal enforcement actions to pursue under the “high impact” policy, according to BNA Daily Environment Report. The Guidance is being developed by the EPA Office of Criminal Enforcement, Forensics and Training.

The “high impact” policy is intended to focus EPA enforcement actions on those cases with the greatest potential to protect human health and the environment. The policy is in response to criticism that EPA has pursued fewer case referrals for civil and criminal violations of environmental laws in recent years.

The expected result of the Guidance is that criminal enforcement actions for environmental violations will increase over the next several years.

In evaluating environmental violations for potential enforcement, the Guidance will consider factors such as violations that cause significant harm or risk of harm, cases likely to promote deterrence, and cases that promote agency and national enforcement priorities.

For more information, see the BNA Daily Environment Report, 16 February 2007.

Brazil Authorities Announce Largest Ever Seizure of Illegally Logged Amazon Rainforest Timber
Reprinted from Mongabay.com, 23 October 2006, http://news.mongabay.com/2006/1023-amazon.html

IBAMA, Brazil 's environmental agency, announced the largest seizure ever of illegally logged timber from the Amazon rainforest.

During a week-long operation – code named Kojima – in late September, authorities impounded nearly 15,000 cubic meters of unlicensed wood in the Amazonian state of Para . The agency said it was probably the largest seizure ever in the state. Para was the state where last year Sister Dorothy Stang, an American nun who worked with rural poor, was killed by gunman associated with local plantation owners. In response to the murder, the Brazilian government sent in the army to quell violence in the region and promised to step up environmental monitoring efforts.

The Kojima Operation follows the three-week Guariba Operation which confiscated 8,500 cubic meters of sawnwood and logs in the state of Mato Grosso. Authorities said the Kojima Operation would continue in the region until at least December, according to a report from the International Tropical Timber Organization's (ITTO) Tropical Timber Market Report.

2006 has seen a marked increase in environmental law enforcement in the Amazon. More than 120 people – including 16 agents of the federal environmental protection agency – have been arrested for operating illegal logging and timber smuggling in the Amazon rainforest and southern Brazil since the beginning of the year. A number of unlicensed timber operations have also been shut down.

Earlier this year in an effort to combat illegal logging while generating revenue for forest management and protection, Brazilian president Luiz Inacio Lula da Silva announced a plan to allow sustainable logging across 3 percent of the Amazon rain forest. While logging has played a part in the continuing loss of rainforest in the Amazon, most recent deforestation results from agricultural expansion, especially among cattle ranchers, large-scale soybean producers, and subsistence farmers. Since the close of the 1990s, deforestation rates of primary forest cover in Brazil have climbed by 35 percent while the Amazon has lost about than 150,000 square kilometers of rainforest. While these figures are dire, deforestation rates in the region have fallen by nearly 40 percent since peaking in 2004. Falling commodity prices and increased enforcement efforts are credited for the drop.

U.S. EPA’s New “Tips” Website Facilitates Reporting of Environmental Violations

The new U.S. EPA “tips” website, http://www.epa.gov/compliance/, has successfully facilitated the reporting of environmental violations. The site was launched at the beginning of 2006 as a more user-friendly version of a previous effort. To report a violation on the website, one must complete a form that takes approximately 30 minutes to fill out. The EPA seeks to have all tips preliminarily reviewed within 48 hours, and matters that endanger human health and the environment may be referred to the EPA’s criminal enforcement office.

For a discussion of the new website, please see Lynn L. Bergeson, “Legal Lookout: EPA’s ‘Tips’ Website Is a Hit,” Pollution Engineering, February 2007.

U.S. Courts Sentence Two Vessel Corporations for Illegal Dumping
Reprinted from U.S. Dept. of Justice press release, 29 January 2007.

Greek-based shipping companies Chian Spirit Maritime Enterprises, Inc. and Venetico Marine each pleaded guilty on 29 January in District court in Delaware to a felony violation related to the operation of the M/V Irene E.M., a large bulk carrier. Chian Spirit, the carrier owner, and Venetico, the carrier operator, admitted to violating the Act to Prevent Pollution from Ships (APPS) by misleading U.S. Coast Guard investigators during the vessel’s port call to the United States in December 2005. The companies were sentenced by the Court to pay a total criminal penalty of $1.25 million dollars and to implement a detailed, court-monitored Environmental Compliance Plan.

According to the plea agreement, on December 5, 2005 , the Irene requested entry into the Delaware Bay , en route to Newark , New Jersey . During the Coast Guard’s routine boarding, officers aboard the Irene provided Coast Guard investigators with a false log book that omitted required entries of overboard oily waste discharges made during the recent voyages.

Further investigation revealed that the vessel’s oil water separator had been inoperable for several months during the previous year. A vessel crew member testified that the ship illegally discharged waste oil into the ocean approximately four times per week into the open ocean. Most of these discharges took place at night or far from shore during trips to various ports, from Africa to Brazil, and from Brazil to the United States , so as to avoid detection. These illegal discharges were either recorded in the ship’s log inaccurately as having been “discharged through the oil water separator” or were not recorded at all. The Irene’s engineers also constructed a bypass pipe, often referred to as the “magic pipe,” which was also hidden from investigators during Coast Guard boardings.

“Companies that illegally and intentionally pollute our oceans violate the law and harm one of our most precious and vulnerable natural resources,” said David M. Uhlmann, Chief of the Environmental Crimes Section of the Justice Department’s Environment and Natural Resources Division. “The Justice Department will continue to prosecute companies who fail to comply with the laws that protect our environment from illegal pollution.”

Engine room operations on board large ocean-going vessels such as the Irene generate large amounts of waste oil. International and U.S. law prohibit the discharge of waste oil without treatment by an oil water separator. The law also requires that all overboard discharges be recorded in an oil record book, a required log which is regularly inspected by the Coast Guard.

As part of the plea agreement, the corporations will pay a combined penalty of $1.25 million, $250,000 of which will be dedicated to a marine-based environmental enhancement community service project on the Delaware Bay.

In a related case, the Chief Engineer of the Irene, Adrien Dragomir, pleaded guilty in August 2006 to one APPS violation for falsifying the Irene’s oil record book. He was sentenced to serve a one-year term of unsupervised probation. Grigore Manolache, the ship’s master, pleaded guilty in July 2006 to a one-count information charging him with presenting false information to the U.S. Coast Guard regarding the vessel’s illegal dumping.

This case was investigated by the U.S. Coast Guard and the U.S. Environmental Protection Agency Criminal Investigation Division. This case was prosecuted by the Environmental Crimes Section of the Justice Department’s Environment and Natural Resources Division.

NAFTA Commission for Environmental Cooperation Recommends Full Investigation of Chevron’s Proposed Project Near Coronado Islands, Mexico 

On 18 January 2007, the Commission for Environmental Cooperation (CEC) determined that a petition by U.S. and Mexican conservation organizations regarding a proposal by Chevron Texaco de México, S.A. de C.V. to build a liquefied natural gas (LNG) facility near the Coronado Islands warrants development of a factual record. The Government of Mexico had authorized Chevron to build the facility a few hundred meters from the Islands, which are a nesting habitat for 6 threatened or endangered seabird species and 10 other species of plants and animals found nowhere else in the world.

The Secretariat of the CEC was created in Articles 14 and 15 of the environmental side agreement to the North American Free Trade Agreement (NAFTA). A citizen of any NAFTA country can use the mechanism to challenge the failure of the country to enforce its environmental laws. Upon receiving a submission, the CEC determines whether it merits the development of a factual record on the matter. Although the factual record is not binding on the NAFTA parties, it is publicly available and helps to shed light on the facts surrounding the matter.

The petition against Chevron and Mexico was submitted in 2005 by The Center for Biological Diversity; Greenpeace Mexico ; Mr. Alfonso Aguirre; Ms. Shaye Wolf; American Bird Conservancy; Los Angeles Audubon Society; Pacific Environment and Resources Center; and Wildcoast.

According to the CEC report, the submitters assert that Mexico is failing to effectively enforce the provisions of its environmental legislation by permitting the construction of the LNG facility immediately adjacent to the Coronado Islands , near the coast of the Mexican state of Baja California . The Coronado Islands host a breeding colony for the endangered seabird Xantus’s Murrelet and other at-risk species. In particular, the petition asserts that the Environmental Impact Assessment approved by Mexico’s Ministry of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales—Semarnat) failed to take into account the impacts of light pollution on nocturnal seabirds, the risk of catastrophic explosions, the risks of introducing rats to the Coronado Islands or other impacts related to tanker and gas terminal activity in concluding that the environmental impacts of the project would be insignificant. They also assert that the project fails to satisfy several substantive standards under Mexico environmental laws, and that Mexico failed to account for the Coronado Islands’ status since July 2003 as a specially protected area.

Mexico responded that all of these issues were taken into account in the assessment of the project. Mexico also responds that the submitters did not take into account the conditions and mitigation measures imposed upon the project proponents, such as the establishment of an environmental quality monitoring program to ensure compliance with Mexican law.

For further information, please visit the CEC website at http://www.cec.org or the website of petitioner Wildcoast at http://www.wildcoast.net.