Friday, August 24, 2012

India's "coalgate": another reason to re-think the architecture of the Kyoto Protocol?

I am following the developments in India regarding the allocation of coal to private companies and electricity boards with great interest. According to newsreports, the Comptroller and Auditor General's (CAG) report on the issue apparently concludes that government allocation of coal between 2004 and 2009 at non-market prices resulted in losses upto USD 33 billion to the Indian government. That is no small amount for a developing country such as India. As an op-ed in the Wall Street Journal claims, it is possible that the report fails to consider the context in arriving at its final figures. Equally, there are claims that the CAG's report may have grossly undervalued the loss of government revenue [see here for a newsreport on the matter]. Some in the government point out that the aim of the allocations was to promote coal mining and boost the power sector.

However, the politics and legal implications of the alleged corrupt practices aside, India's "coalgate" presents an important lesson as countries consider negotiating a new climate treaty that would include India and China. That is, what do such "scams" mean for establishing a carbon price and an emissions trading system? Can the possibility of mishaps in allocating "emissions" rights be precluded in countries where the market system is evolving and corruption apparently runs unabated? Who will actually benefit from such schemes? Simply, are developing countries such as India ready to embrace and implement a complex market mechanism for carbon? Or should we be re-thinking the architecture of the Kyoto Protocol?

Let me clarify, the question is not whether we need international cooperation on climate change. It is indispensable for effectively addressing the problem. The question is whether all countries are equally equipped to implement effective complex market mechanisms.


August 24, 2012 | Permalink | TrackBack (0)

Thursday, August 23, 2012

Texas Court Sides with TransCanada in Eminent Domain Dispute over Keystone XL

In a matter previously discussed on this blog here and here, a Texas trial court judge summarily ruled last evening that TransCanada is a “common carrier,” such that the Canadian pipeline company is authorized to condemn private property in Texas for construction of the Keystone XL project. 

In 15-word decision sent from his I-phone, Lamar County Judge Bill Harris concluded that TransCanada need not bear the burden of proving prior to construction of the pipeline that the pipeline will be available to carry petroleum for any producer in service to the public at a published price.  Opponents of the pipeline contend that the pipeline only will benefit a select group of private oil companies.  “Bold Nebraska” reports the extent of Judge Harris’s ruling:

Dear Counsel,

My rulings as follows:

Transcanada's MSJ is GRANTED
Transcanada's NEMSJ is GRANTED
Crawford's Plea to the Jurisdiction is DENIED

Mr. Freeman would you please forward orders consistent with my ruling for my signature?
Sent from my iPhone

The decision is certain to disappoint an unlikely mix of property rights activists, tea party supporters, and environmentalists, who have mounted a spirited challenge against the pipeline for its infringement on private property interests and the threat of significant ecological harms.  The New York Times is reporting that the landowner, farmer Julia Trigg Crawford, has vowed to appeal.

Construction on the pipeline began in another area of Texas earlier this month.  The pipeline is anticipated to transport oil from Oklahoma and West Texas—and potentially from Canadian tar sands as well—to Texas Gulf Coast refineries.  Extending the project into Canada requires State Department approval in light of the international boundary cross.  The State Department at least temporally rejected approval in January after Congress set a narrow deadline for a final decision that the Obama Administration found too constricting. 

Presumptive GOP presidential nominee Mitt Romney unveiled his views on energy policy this afternoon at a campaign event in New Mexico’s Permian Basin oil fields, promising a speedy approval of the extension of the Keystone XL into Canada should he prevail in November’s election.  A story on EcoWatch raises the possibility that Crawford’s case could pose a bit of a conundrum for the GOP as its convention begins this weekend in Tampa, given that the party’s 2008 platform included a firm stand against the use of eminent domain and called on “state legislatures to moot the [U.S. Supreme Court’s] Kelo decision.”

Stay tuned to the Environmental Law Prof Blog for continuing updates on Keystone XL.

-Tim Mulvaney

August 23, 2012 | Permalink | TrackBack (0)

Wednesday, August 22, 2012

China's New Clean Energy Investments

On Tuesday, China's State Council announced plans to spend 2.37 trillion yuan ($375.6 billion) on new energy and environmental measures designed to help meet its target of reducing energy intensity to 16 percent below 2010 levels by 2015.  These commitments form part of China's Twelth Five-Year Plan, which runs from 2011 to 2015. According to Reuters, "steel producers must reduce their energy use per unit of production by a quarter over the five years, coal-fired power plants by 8 percent and cement manufacturers by 3 percent" under the State Council Plan. 

These are impressive new commitments, but they also highlight the big picture problem.  Despite major strides at energy intensity reduction, government officials expect China's greenhouse gas emissions to peak in 2030.  This continued rise in total emissions even as intensity declines over the next 18 years is a serious concern.  And yet major inequities persist, which are clear when China's per capita emissions are compared with those of other developed country major emitters.

Hari Osofsky

August 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2012

The coal question in the future of climate change negotiations

Two recent, unrelated developments highlight the continuing centrality of coal to our society. In Germany, the government has permitted the construction of a new coal power plant. The reason? Germany's decision to shut down its nuclear power plants post-Fukushuma means other energy sources have to be provided. The implication of this decision is that Europe's emissions are predicted to increase in the next few years. The report can be found here.

In the meantime, the D.C. Circuit has struck down an EPA Transport Rule to reduce emissions from coal power plants with the objective of limiting cross-border pollution from sulfur dioxide and nitrogen oxides [the Cross State Air Pollution Rule]. In EME Homer City Generation, L.P., v. EPA, petitioners successfully argued that EPA had exceeded its authority in regulating emissions from power plants. The D.C. Circuit found that EPA erred in not allowing states the opportunity to plan their emissions reduction, but instead subjecting them to the Federal Implementation Plan (FIPs). It also held that upwind states could not be required to reduce their emission beyond what was their "significant contribution" to the non-attainment of air standards by downwind states.

I have not had a chance to study the decision closely and will not comment on the decision. However, these two developments do highlight, perhaps for entirely different reasons, the importance of coal and the challenges to regulating emissions (even though not CO2 emissions here) from coal-power plants. The question is whether coal emissions can be managed effectively within the framework of climate law. There is much at stake and perhaps, what the we need is a new plan, a new solution. The question, of course, is cliched--who will bell the cat?




August 21, 2012 | Permalink | TrackBack (0)

Associate Dean for Environmental Programs at Vermont Law School Job Posting

You can download the full announcement here: Associate Dean for Environment PD.

August 21, 2012 | Permalink | TrackBack (0)

Georgia State College of Law Tenure-track Position Announcement

Georgia State University College of Law is searching for a tenure-track Assistant/Associate Professor specializing in urban land use and environmental law to begin in fall 2013.  The position is part of the University’s Second Century Initiative (“2CI”) that seeks to foster interdisciplinary collaboration around the environmental, planning, economic and urban policy issues related to shaping the future of cities.  For more information about this position, please visit our faculty recruitment web page at  To apply for, or to inquire about, this position, please contact Professor Julian Juergensmeyer, Chair, 2CI Recruitment Committee at You can view the full announcement here: 2CI hire announcement - final.

August 21, 2012 | Permalink | TrackBack (0)

Call for Papers - 2013 Georgia State University Law Review Water Rights Symposium

Please see the below announcement for the symposium and the call for papers, which can be downloaded here: CallforPapers.

"The 2013 Symposium topic is water rights with a focus on the Army Corps of Engineers’ role in national and local water regulation. The symposium will consist of 3 three-person panels covering various water law topics: the Corps's process for creating the manuals that govern rivers and dams, water supply planning and development with an emphasis on Georgia and regional water wars. If you have any questions, please email Lisa Scatamacchia at" 

- Blake Hudson

August 21, 2012 | Permalink | TrackBack (0)

Sunday, August 19, 2012

In Case You Missed It: Week of August 12-18

The 5th circuit struck down EPA's final rule disapproving Texas's Flexible Permit Program (court opinion here).

The impact of the drought may be peaking, but only 23 percent of the corn crop is rated in good-to-excellent condition.  

Climate models predict more droughts, according to a new study published in the journal Nature Climate Change

A California ballot initiative (the “California Right to Know Genetically Engineered Food Act,” Proposition 37), would require genetically engineered foods to be labeled as such in the supermarket. The pro-forces have raised about $2 million while the con-forces have $25 million

The Canadian pipeline company TransCanada began construction of the southern leg of the Keystone XL pipeline in Texas.

Severe flooding in the Phillipines has claimed nearly 100 lives and displaced more than 800,000 families.

August 19, 2012 | Permalink | TrackBack (0)