June 2011


Greetings from China! Today the U.S.-China Partnership for
Environmental Law hosted a “Roundtable of Environmental Dispute Resolution: Adjudication and Mediation” at the Guangzhou Maritime Court. We sat around a horseshoe table in classic Chinese fashion, with the American on one half, and Chinese judges, all dressed in matching light blue shirts with China pins, on the other.

There is no doubt that this sort of cross-cultural exchange is both useful and difficult. The need for translation breaks the flow, some of the remarks of Chinese judges were read from pre-written scripts, and everybody needs work on their PPT slides (too much verbiage).

American judges, from the US EPA’s Environmental Appeals Board and the Vermont Environmental Court, focused on what I’d describe as judicial process including topics such as the types of claims brought (public and private), who can file suit, who is subject to suit, and importance of allowing claims against government. Nut and bolts information was also conveyed—monitoring of results; when do things end? (completion of remediation; continuing jurisdiction); what does a court order look like?; details, deadline, reporting, penalties for noncompliance. In terms of adjudication, what I’m really not sure about is whether Chinese judges do such things, where they know how to craft such orders, or whether they have authority to do so? But on the mediation side, the American and Chinese judges had much in common.

One difference did occur. The Chinese judges stressed the primary role of mediation, and stated that Chinese courts always give priority to mediation in civil action. The Chinese judges stated that the “court guides the parties to resolve” the conflict through mediation before the court takes the case. But what does “guide” mean? At best, do Chinese courts more effectively and efficiently resolve disputes by facilitating resolution before litigation becomes necessary? Or, at worst, does “guide” mean that the outcome pre-determined and that’s why mediation is preferred. Do and can judges, both Chinese and American, signal an outcome preference during mediation? These questions occurred to me before the Q&A session when the judges had a great informal discussion about the perceived advantages and disadvantages of having the same judge do the trial and mediation (as is done in China) or have a separate trial and settlement judge (as is done in the EPA’s EAB).

I’ve had a busy few days, traveling to the US Consulate (and former embassy) in Hong Kong, visiting our Vermont Law School student interning at WWF-Hong Kong, and, now in Guangzhou, meetings with our partners at Sun Yat-sen University and the US Consulate. Tomorrow we are hosting a Judges Roundtable on Environmental Dispute Resolution focusing on Adjudication and Mediation. It’s sponsored by Guangzhou Maritime Court, Environmental Appeals Board (EAB) of the United States Environmental Protection Agency, Vermont Environmental Court (VEC), Sun Yet-Sun University School of Law, China University of Political Science and Law Vermont Law School.

The weather as been rainy everywhere in China. See
http://chinaenvironmentalgovernance.com/2011/06/25/beijing-deluge-highlights-water-climate-and-governance-concerns/. On a personal front, my time here in Guangzhou has been very emotional, having to say hi and goodbye to too many friends too quickly after having lived in Guangzhou for a year with my family during my Fulbright experience.

But what I really want to talk about is Environmental Law. Like Europe, Chinese college students major in law as undergraduates (as opposed to the American graduate school law model). At our China Partnership alumni dinner last night we learned the national government supports the teach of environmental law, and that Sun Yat-sen University (whose environmental law program Vermont Law School helped build) is now REQUIRING all undergraduate law majors to take the Environmental Law course. To me, this is an amazing and fascinating development. It raises questions about the American law curriculum; general questions about whether the common law first year curriculum is outdated (it is), and what substantive courses should be required (e.g, why is Evidence required by not Environmental Law or Energy Law or some business law courses)). Going back, I wish I could have replaced Evidence and Professional Responsibility with Energy Law and Tax Law).

http://firstread.msnbc.msn.com/_news/2011/06/22/6917448-gore-criticizes-obama-for-not-leading-on-climate-change

I think the key quote is, “Yet President Obama has never presented to the American people the magnitude of the climate crisis.”

Like Al Gore said in his NY Times Op-Ed a while ago, I hope we’re all wrong about this climate change thing, but if scientific predictions are correct, continued greenhouse gases emissions will have
devastating impacts on the earth and humanity.

I had an amazing and classic New England/Vermont Father’s Day weekend with my father and my daughters that included Red Sox games, a Bruins victory parade, canoeing and swimming, and a picnic in the park. I now find myself in Hong Kong in route to China, as I will meet with our Asian partners as part of the U.S.-China Partnership in
Environmental Law at Vermont Law School. I’m very comfortable in Hong Kong, and the first thing I do is read the South China Morning Post because so many articles always deal with environmental and public health concerns. Today’s reading included stories on flooding in China, pesticide usage on Hong Kong farms, air pollution in Guangdong, and river pollution in Wuhan.

Also fascinating is reading articles about Hong Kong’s relationship to the mainland Chinese government, and the constant protests and political resignations in Hong Kong, all in the name of Hong Kong self-rule. Thus, this morning Hong Kong time, as I watched the President of the United States speak about troop withdrawals in Afghanistan and “nation-building” at home, I’ve come to two thoughts. First, nation-building takes a long time, and, thus, I question, absent colonialism (which I am not advocating) how one country can “build” another nation, at least in a short time. As an example, it took 89 years from declaring independence until the end of the American Civil War. Second, to the extent that U.S. foreign policy wants to promote democratic principles (at minimum, meaning
self-rule), what is the appropriate scope of involvement? And, long-term, given the United States’ strong bond with China, how should America handle Chinese involvement in Hong Kong, Taiwan, Macau, and areas in the South China Sea? I have no answers on this last point, only questions and an interested eye.

Story in the NYTimes with Vermont Law Professor Pat Parenteau about SCOTUS’s ruling in AEP v. CT.

http://www.nytimes.com/gwire/2011/06/21/21greenwire-impact-of-supreme-courts-greenhouse-gas-ruling-41463.html?ref=energy-environment

Friend and colleague Doug Kysar (Yale) has a nice op-ed laying out the implications of the Supreme Court’s most recent global warming decision.

http://www.nature.com/news/2011/110621/full/474421a.html

I’ll continue to repeat what I have been saying for 4 years now…the best chance we have to deal with greenhouse gas emissions in the U.S. is through the action of the EPA under the Clean Air Act. While others prefer Congressional action and despite the imperfect nature of the Act, I view that option as not politically viable and potentially weaker than EPA actions. Whatever your view of AEP v. CT, it’s clear that the ball is clearly in the EPA’s court with President Obama and EPA Administrator Lisa Jackson calling the plays.

The opinion is at http://www.supremecourt.gov/opinions/10pdf/10-174.pdf. The Court held that the federal common law of nuisance has been displaced by EPA’s regulatory authority under the Clean Air Act.

Commentary/News about the Opinion:

· http://legalplanet.wordpress.com/2011/06/20/the-american-electric-power-case/

· http://www.nytimes.com/aponline/2011/06/20/business/AP-US-Supreme-Court-Climate-Change.html?_r=1&hp

· http://www.concurringopinions.com/archives/2011/06/summary-of-todays-supreme-court-opinions.html

· http://legalplanet.wordpress.com/2011/06/20/supreme-court-rejects-states-climate-change-nuisance-lawsuit/

· http://www.thefacultylounge.org/2011/06/american-electric-power-wal-mart-decided-no-nuisance-claims-no-class-certification.html

· http://greenlaw.blogs.law.pace.edu/2011/06/20/scotus-rejects-federal-common-law-global-warming-claim/

· http://intlawgrrls.blogspot.com/2011/06/implications-of-todays-us-supreme-court.html

http://www.washingtonpost.com/world/asia-pacific/chinese-workers-protest-lead-poisoning/2011/06/14/AGSDS7UH_story.html

Vermont Law School Professor Jack Tuholske co-authored an op-ed in today’s Missoulian on a climate change lawsuit recently filed at the Montana Supreme Court.

http://missoulian.com/news/opinion/columnists/article_2606c06e-9690-11e0-bad3-001cc4c002e0.html

I recently viewed the film “No Impact Man” about a NYC family that tries to live environmentally friendly and off the grid.  A number of things struck me about the documentary film.

First, many of the projects taken on by the family are commonplace in the lives of many Vermonters: buying in the raw and bulk section of the grocery store, going to the farmers market, having no TV, using washable diapers, eating vegetarian and local, limiting the purchase of new items and reusing old items, visiting farms, having no paper towels, using refillable cleaning bottles, using natural cleaning supplies, and cooking.

Second, some things would be very difficult to give up: heat (even though we keep our house at 58 degrees in the winter), washing machine, electricity, car, tea, toliet paper (!).

Third, the film provoked a number of interesting thoughts:

  • What is the future if mass transit in the U.S.?  Or any types of non-car transit in rural states like Vermont?
  • Can we regulate junk mail?
  • How can we make our employers and business more environmentally friendly?
  • Is a regulatory model that focuses on changing individual behavior possible or desirable in the U.S.?
  • How do we need to deal with the negative costs of American consumption?

Finally, if you watch the film, you’ll notice that the family receives a lot of backlash for their choices, yet their choices in the end, if anything, make them healthier, happier, and more family oriented.  Do the trappings of modernity make us live at such a pace that will miss the simple pleasures in life?  For an answer, watch the scene where the family “washes” their laundry in the bathtub by rolling up their pant legs and stomp the laundry like grapes.

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