University of Maryland School of Law Winter-Spring 2006 No ... · Environmental Law 1 University of...

Environmental Law 1

University of Maryland School of Law Winter-Spring 2006 No. 22

Exploring Multi-Disciplinary ApproachesFor Protecting the Global Environment

Using videoconferencing, this year's Comparative Environmental Law and Politics course brings together26 law students, 17 honors students from the University of Maryland's Department of Government andPolitics and professors Robert Percival, Miranda Schreurs and visiting Chinese scholar Hu Jing.

Film Festival . . . . . . . . . . . . . . . . . . . . . . . . 1Student Awards . . . . . . . . . . . . . . . . . . . . . . 3Environmental Clinic Update . . . . . . . . . . . 5Strait Jacketing Risk Assessment . . . . . . . 7Improving Environmental Governance in China . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Enforcement in China and Israel . . . . . . . .11Federal "Information Quality Act" . . . . . . .15Alumni Profiles. . . . . . . . . . . . . . . . . . . . . . .1714th Annual Winetasting . . . . . . . . . . . . . . .21New Seminars. . . . . . . . . . . . . . . . . . . . . . . .24Cancer Survivor Challenge . . . . . . . . . . . . .25Environmental Student Activities . . . . . . . .26ABA 34th Annual Spring Conference. . . . . 27

In this Issue . . .

Environmental Law 2

FILM FESTIVAL HONORS ENVIRONMENTAL FILMMAKERSStudent Movies Featured at “Law and Film” Conference

On March 1 the Maryland Environmental LawProgram hosted its annual Environmental Law FilmFestival to honor student filmmakers in ProfessorPercival’s Environmental Law class. For the past fouryears students in this class have formed small groups tomake short documentary films about environmental issuesthey select. This year the student filmmakers had anadded incentive: their best films were showcased to abroader audience at a conference on March 31 on “TheImpact of Film on Law, Lawyers, and the Legal System.”

Each year the films illustrate the remarkablecreativity of Maryland’s environmental law students, bothin their selection of topics and their approaches tofilmmaking. Seven films were made by students thisyear, including “The Disappearance of the EasternOyster,” “Ethanol: Fueling Maryland,” “The Hunt forHigh Quality H20,” “Terrapin Man Saves the Bay,”“Animals in Captivity,” “The Tragedy of the Commons,”and “Snakeheads.”

After the films are shown in Professor Percival’sEnvironmental Law class, they are submitted to anindependent panel of judges who vote for “Golden Tree”awards in eight categories. The awards were presentedto students at the Film Festival on March 1.

This year’s Golden Tree award for Best Picturewas presented by Associate Dean Richard Boldt tostudent filmmakers Khushi Desai, Chad Harris, EvanIsaacson, and Alva Wright for their film “TheDisappearance of the Eastern Oyster.” The film exploresthe factors that have contributed to the oyster’sprecipitous decline and what is being done to rescue it.The film also won Golden Tree awards for BestNarration and Most Educational Film, and it wasnominated for awards for Best Achievement in Sound,Best Use of Humor, and Best Interviews.

“The Hunt for High Quality H20” won theGolden Tree award for Best Use of Humor. In this filmstudents Mark DeVry, Karla Schaffer, James Goodwin,David Mandell, and Michael Craven trace the sources ofBaltimore’s drinking water. Their visit with a videocamera to a city reservoir raised official suspicions, whichare dispelled later in the film by one’s antics cavorting ina swimsuit in the school’s courtyard fountain.

Lauren Bregman, Jesse Martin, Marissa Merrick,Laura Pacanowsky, and Mayumi Sakoh won GoldenTrees for Best Original Film Footage and BestAchievement in Sound for their film “Animals inCaptivity.” The film featured a visit to the BaltimoreZoo by animal rights sympathizers and interviews withvisitors to the zoo and their children.

Golden Tree Awards

Golden Tree for "Best Picture" presented byActing Dean Richard Boldt to Evan Isaacson,

Alva Wright and Khushi Desai

David Mandell, Karla Schaffer and Mark DeVry withGolden Tree for "Best Use of Humor"

Continued on page 4

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Winston Martindale, a second year law student, is the recipient of a 2006 Minority Fellowship inEnvironmental Law awarded by the New York State Bar Association's Section of Environment, Energy, andResources Law. As a Fellow, he will spend the summer of 2006 working for EPA Region 2's main regional officein New York City. In addition, Winston will be attending the annual meeting of the New York State BarAssociation's Environmental Law Section, and participating in monthly dinner meetings. He will be assigned twomentors from the environmental bar and will receive a $6,000 stipend.

Officers of the New York State Bar Association Environmental Law Section present award to Winston Martindale.(from left to right) Luis Guarionex Martinez, Miriam Villani, Winton Martindale, and Jean McCarroll.

STUDENT WINS NATIONAL WILDLIFE

AND CONSERVATION LAW WRITING CONTEST

Natalie Havlina, a third year law student, was thewinner of the 2005 Wildlife and Conservation Law WritingContest sponsored by the Southeastern Association of Fishand Wildlife Agencies (SEAFWA). Her paper is titled“Can’t We All Just Get Along? Lessons About Conflict,Compromise, and Consensus From Wolf and GrizzyReintroductions.” The prize for winning the contest was anall-expense paid trip to SEAFWA’s annual meeting onOctober 16-19, 2005 in St. Louis Missouri. Natalie sat in onthe proceedings of SEAFWA’s legal committee. Natalie said“having studied the federal laws concerning biodiversity inProfessor Goger’s Biodiversity Seminar the previous spring, itwas fascinating to get a glimpse into the state managementperspective on wildlife law.”

MARYLAND STUDENT AWARDED

ABA ENVIRONMENTAL FELLOWSHIP

Natalie Havlina

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“Ethanol: Fueling Maryland” won the Golden Treefor Best Interviews for students April Birnbaum, CorianneIocavelli, Daniel Orlaskey, and Lauren Willis. The filmexamines the debate over subsidies to promote thisalternative fuel through interviews with a Maryland statedelegate, a farmer, and a representative of a tradeassociation. The film also was nominated for awards forBest Original Film Footage, Best Narration, and MostEducational Film.

Filmmakers Mohammad Alwazir, WinstonMartindale, and David McMurray took home the GoldenTree award for Best Acting in their film “The Tragedy ofthe Commons.” In the film the students acted out ahistorical illustration of Garret Hardin’s famous theory.The film also featured a guest appearance by Marylandlaw professor Andy King explaining property law. Inspiredby the film classics like “The Wizard of Oz,” the film’stime travel scenes were shot in black and white.

In “Terrapin Man Saves the Bay” by LisaMannisi, Jill Morotchie, and Amber Widmayer, StudentBar Association President Jason Smith played a capedturtle superhero crusading to prevent nonpoint pollutionfrom reaching the Chesapeake. The film was nominatedfor awards for Best Original Film Footage, Best Acting,Best Narration, and Best Use of Humor.

Independent filmmaker Erin Miller made the film“Snakeheads,” which explores efforts to combat aparticularly aggressive invasive species of fish. Her filmwon a Special Judges Award for Scariest Frame of Film.

Following the Film Festival, copies of theenvironmental law student movies made during the lastfour years were submitted to Professor Taunya Banks,the organizer of the Law and Film conference, which washeld at the Law School on March 31 and April 1. Theconference brought together law professors, filmmakers,film critics and film industry officials to explore issuesrelated to the impact of film on law, lawyers and the legalsystem. Seven of the environmental law student filmsthat have been made during the last four years wereshown at the conference.

Professor Percival made a presentation to theconference on “Making Movies in the Classroom” andCity Paper film critic Bret McCabe commented favorablyon the quality of the student films. Percival explained thatthe purposes of the film projects are to give students anappreciation of how difficult it can be to communicatecomplicated issues of environmental law and regulatorypolicy to a wider lay audience and, quite simply, to makeEnvironmental Law even more fun.

Golden Trees for "Best Original Film Footage" and"Best Achievement in Sound" presented to MarissaMerrick, Laura Pacanowsky and Lauren Bregman

Lauren Willis, Corianne Iacovelli, April Birnbaum andDan Orlaskey with Golden Tree for "Best Interviews"

David McMurray with Golden Treefor "Best Acting"

Continued on page 6

Film Festival (continued)

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Environmental Law Clinic andNRDC Settle Atrazine Litigation

The Environmental Law Clinic is celebrating asettlement of a federal citizen suit in which the NaturalResources Defense Council (NRDC) claimed that theU.S. Environmental Protection Agency (EPA) had failedto comply with the Endangered Species Act (ESA) toensure that EPA’s continued registration of the herbicideatrazine will not jeopardize 21 endangered species in theChesapeake Bay region, the Midwest and the South.Working with co-counsel Aaron Colangelo, a StaffAttorney at NRDC, the Clinic pursued this case for morethan three years, preparing a notice of intent to sue, filinga complaint, conducting discovery, briefing disputeddiscovery issues, and negotiating and drafting a settlementagreement between NRDC, EPA and the registrants ofatrazine, intervenors led by Syngenta Crop Protection, Inc.The settlement agreement, which became final on March29, requires EPA to consider atrazine’s potential effectson certain endangered amphibians, reptiles, fish, andaquatic invertebrates nationwide.

Section 7(a)(2) of the ESA, 16 U.S.C. §1536(a)(2), requires federal agencies to ensure that any

action they authorize, fund or carry out isnot likely to jeopardize endangered orthreatened species or their designatedcritical habitat. The ESA implementingregulations in 50 C.F.R. Part 402 requirefederal agencies to consult with the U.S.Fish and Wildlife Service (FWS) (forterrestrial or freshwater organisms) or theNational Marine Fisheries Service (NMFS)(for marine species) if an agency action“may affect” an endangered or threatenedspecies. The regulations broadly define theagency actions subject to this consultationrequirement. In a complaint filed in U.S.District Court for the District of Marylandin August 2003, NRDC alleged that EPA’sregistration, or licensing, activities foratrazine under the Federal Insecticide,Fungicide and Rodenticide Act triggered aduty to consult and that EPA had violatedSection 7(a)(2) by failing to consult withFWS and NMFS to ensure that EPA’s

registration of atrazine will not jeopardize the loggerheadturtle, leatherback turtle, green turtle, Kemp’s ridley turtle,shortnose sturgeon, dwarf wedge mussel in theChesapeake Bay and its watershed, as well as 5 otherendangered species in the Midwest and 10 in the South.

EPA is currently considering whether to reregisteratrazine, which was originally registered in 1958 and iswidely used in the U.S. Every year, millions of pounds ofits active ingredient are applied to food crops such as corn,soybeans and sugarcane, and to non-agricultural landsincluding residential developments. Atrazine is persistentand mobile in surface and ground water, and it has beendetected in air and rainfall samples even outside of high-use areas. EPA’s risk assessments have acknowledgedpotentially harmful effects of atrazine on endangered fish,aquatic invertebrates and terrestrial and aquatic plants,and other data summarized by EPA found that atrazinemay adversely affect endangered amphibians and reptiles.

In the settlement agreement, EPA agreed to aschedule for evaluating the effects of atrazine on thespecies identified in NRDC’s complaint. Under the ESAimplementing regulations, an agency’s “effectsdetermination” indicates whether Section 7(a)(2)consultation is required. If an agency concludes that its

by Professor Kerry Rodgers*

Environmental clinic students take a boat trip withRiverkeeper Bob Gallagher on the West and RhodeRivers near Annapolis and the Chesapeake Bay.

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action “may affect and is likely to adversely affect” a listedspecies or designated critical habitat, then formalconsultation may be required. If an agency concludes thatits action “may affect but is not likely to adversely affect” alisted species or designated critical habitat, informalconsultation or an alternative consultation procedure may berequired. The settlement agreement requires EPA to makeeffects determinations for atrazine with respect to all 6species in the Chesapeake Bay watershed, as well as theBarton Springs salamander and the Alabama sturgeon, byAugust 31, 2006. EPA will make effects determinationswith respect to 8 other species by February 28, 2007, andEPA will make effects determinations with respect to 5species by August 31, 2007. In its effects determinations,EPA will consider the results of ecological water monitoringthat atrazine’s registrants currently are conducting forsubmission to EPA.

The settlement agreement also facilitates NRDC’sand the public’s ability to participate in EPA’s effectsdeterminations and in any formal consultation between EPAand FWS or NMFS regarding the 21 species at issue. Forexample, at least 30 days before EPA makes its effectsdeterminations, EPA will provide NRDC with the monitoringdata it has received relating to those determinations and posta public notice of the availability of that data. EPA also willconsider any information that NRDC believes is relevant tothe effects determinations and submits to the Agency.

Student Attorneys from four successiveEnvironmental Law Clinic classes – Katherine Baer, ChristieBiggs, Adrian Curtis, Jonathan Dowling, Dan Fruchter, LevGuter, Sam Hawkins, Cortney Madea, Anne Merwin, MeganMoeller, Ulka Patel, Paige Poechmann, Alison Prost,Michelle Stanfield, and Amber Tysor – as well as localattorney and Maryland graduate Terry Harris and Universityof Maryland Medical School Professor Katherine Squibbworked on the case with Professors Rena Steinzor, JoannaGoger and Kerry Rodgers. Through their efforts, EPA soonwill issue effects determinations for atrazine that hopefullywill lead to more informed decisions and better protection forseveral endangered species.

Among the films that were shown at theconference was “The Death Project,” a film made byJeremiah Chiapelli, Andrea Curatola, and AnneMerwin in 2004, which examines the environmentalimplications of human burial practices from ancienttimes to the present. The film won Best Picture atlast year’s Film Festival. Other films from prioryears’ classes that were shown at the conferenceincluded 2003’s Best Picture winner “The PermitZone,” and “Eutrophication,” “Fertilizer Use and theChesapeake Bay,” and “Talkin’ Trash.”

The student films received an enthusiasticresponse from conference participants, who urged thatthey be made available to a wider audience. Oneprofessor already has asked to use two of the films inher classes and Maryland’s Law Library will now bemaintaining an archive of all the student films.

Judges for this year’s Golden Tree awardsincluded Professor Taunya Banks, Professor KerryRodgers, Professor Kathleen Dachille, Assistant DeanTeresa LaMaster, alums Cortney Madea and MichaelStrande, and former Best Picture winner JeremiahChiappelli.

Robert V. Percival, Director Environmental Law ProgramRena I. Steinzor, Director Environmental Law ClinicKerry Rodgers, Visiting Professor of LawLaura Mrozek, CoordinatorCarole Marshall, Adm. Asst.

Contributors to this newsletterinclude faculty, alumni,students, and friends of theEnvironmental Law Program.

YUNIVERSITof M ARYLAND

SCHOOLof

LAW

This newsletter is published bythe University of MarylandEnvironmental Law Program.

Film Festival (continued)Environmental Clinic (continued)

*Professor Kerry Rogers teaches the EnvironmentalLaw Clinic.

Environmental Law 7

Gridlock in Congress and frustration among regulatedindustries have combined in recent years to produce avast underground dedicated to reform throughadministrative changes. While the administrative processis obviously a crucial – some would say primary – vehiclefor implementing environmental policies, changes at thefar right edge of the political spectrum strain the statutoryframework to the point that they are anti-democratic,circumventing congressional intent and authority.

The most recent and powerful example of these effortsto eviscerate the protections embodied in the nation’senvironmental statutes was presented by the Office ofManagement and Budget (OMB) in the form of aProposed Risk Assessment Bulletin (Bulletin) this pastJanuary. If adopted in anything close to its current form,the Bulletin will accomplish seismic changes in both thetiming and substance of rulemaking, not just at theEnvironmental Protection Agency (EPA) but throughoutthe other agencies assigned to protect public health,safety, and natural resources.

The Bulletin announces that all risk assessmentsconducted with respect to public health, safety, andenvironmental issues must adhere to its requirements, butexempts drug approvals, pesticide registrations, andfacility hazard assessments done in the context oflicensing proceedings. This double standard has the

effect of exempting assessments that are generated byindustry, although OMB never acknowledges this obviousdouble standard.

A Less Protective Process

With respect to government risk assessments, the Bulletinwould make three fundamental changes in the normal riskprocess:

Conflation of Risk Assessment andManagement. In 1983, the National Academy ofSciences issued what has become a classic publication onrisk assessment, Risk Assessment in the FederalGovernment, commonly known as the “red book.” Acrucial and central point made by the panel of world-renowned experts was that risk assessment (predicting thenature and scope of the threat) and risk management(deciding what to do about the threat) were two distinctlydifferent phases of decision-making and should not beeither confused with each other or combined as a practicalmatter. The Bulletin casts aside this threshold premise,requiring that agencies engage in a search for managementoptions before they settle on an assessment of the risk tobe prevented. In essence, risk assessors will be forced toconsider costs before they have characterized risks,ultimately subverting dispassionate assessments.

Combining Apples and Oranges into Mush.The Bulletin recognizes that estimates regarding pollutiondispersion, human exposures, and adverse health effectsare often generated by models, as opposed to actualmonitoring. OMB also acknowledges that modelsinvariably have uncertainties and flaws. Rather thanallowing risk assessors to consider these uncertainties andflaws as part of a “weight of the evidence” scientificjudgment, the Bulletin demands that where models areused to predict risk, agencies come up with a “central riskestimate” by calculating mathematically a “weightedaverage” of the models’ numerical results. This overlysimplistic, mathematical combination of complex anduncertain approaches to predicting risk not only mixesapples and oranges, but blends them into a misleadingmush.

Ossifying Ossification. It is hard to imagine thatthe regulatory process at EPA could move more slowlythan it does now, but the Bulletin does its best to ossifyossification. Consider the following requirements.

Strait Jacketing Risk Assessment

The Regulatory Reform Underground

by Professor Rena Steinzor*

Professor Rena Steinzor

Environmental Law 8

• All Diseases and Any Cause. Riskassessments must account for all diseases orconditions related to the chemical or activity, notjust the most serious or prevalent problems.They must also identify other causes of theseadverse effects in order to determine whetherthe toxic chemical – or substance or practice –under assessment is a significant problem.

• Baseline Risk and Exposure Analysis. TheBulletin mandates that agencies establish a“baseline risk” for comparison with “riskassociated with the alternative mitigationmeasures being considered.” In the toxicscontext, establishment of a baseline risk impliesthe creation of a “control group” of unexposedpopulations, a notoriously difficult task thatundermines many epidemiological studies. Ifthere is evidence that exposure at given levelscause disease, the further search for populationsnot exposed can only serve to bog down the riskassessment interminably.

• Previous Risk Assessments. The Bulletinfurther requires that agencies “find and examinepreviously conducted risk assessments on thesame topic” and compare such assessments tothe assessment they are currently conducting,whether or not the Agency believes such priorwork is reliable.

• Reproducibility. Any scientific study used tosupport “influential” risk assessments must be“capable of being substantially reproduced.”This burdensome mandate will inevitably requirethe public release of any information about howa government-sponsored study was performed,including laboratory notebooks and detailedinformation about test subjects. It will alsoserve as a rich source of delay as entitiespotentially affected by the government’s riskassessment attempt to “reproduce” suchfindings.

• No Observed Adverse Effect. Of a piecewith the “reproducibility” requirement, theBulletin suggests that agencies consider onlystudies that define and document “no observedadverse effects,” as opposed to “no observedeffect.” The definition of what constitutes anadverse health effect is subjective andinvariably will result in controversy, moredebate, and less protective standards.

Ossification by Litigation

The Bulletin contains the standard boilerplate forexecutive orders: “[This Bulletin] is intended to improvethe internal management of the Executive Branch and isnot intended to, and does not create any right or benefit,substantive or procedural, enforceable at law or in equity,against the United States, its agencies or other entities, itsofficers or employees, or any other person.” However,because OMB relies on the Information Quality Act(IQA) for authority to issue the Bulletin, it could be readto define what a “correct” risk assessment must contain.The Fourth Circuit recently held that “requests forcorrection” under the IQA are not judicially reviewablebecause the Act fails to confer standing (“a right tocorrectness of information”) on any group or individual.The Chamber of Commerce has announced that it willseek a congressional amendment to reverse this decision.Even if these efforts do not succeed, and other circuitsfollow the Fourth, the prospect of answering interminablerequests for correction will provide ample incentive foragencies to comply with its burdensome and unnecessaryconditions.

One Size Does Not Fit All

The scope of the Bulletin – any public health, safety, orenvironmental risk assessment except drug reviews,pesticide registrations, and licensing proceedings, meansthat it would impose the detailed analysis that dominatescancer risk assessment on risk analysis of all kinds,including the Department of Transportation, the FederalEmergency Management Association, and the ArmyCorps of Engineers. Not only does this impossibly broadscope assure a poor fit between the supposed problemand the cure, but it is undertaken with no analysiswhatsoever of the utility of the requirements. In otherbulletins and circulars, OMB has required agencies toanalyze in detail the usefulness of the information that itrequires – but it imposes no such restrictions on itself.

Please note that OMB will accept comments on theproposal until June 15, 2006. Comments by the scientificcommunity will be especially important.

*Professor Rena Steinzor is Director of theEnvironmental Law Clinic at the University ofMaryland School of Law.

Environmental Law 9

Environmental issues have become animportant concern to both the public and thegovernment in the People’s Republic of China. In theface of rapid development and poor enforcement ofexisting environmental laws (see article by JonathanLibber in this newsletter), environmental conditionshave deteriorated so badly in some areas that riots havebroken out as villagers protest environmental conditions.

Professors Robert Percival and MirandaSchreurs have been involved in a number of projectsdesigned to improve environmental governance inChina. When he visited China in March 2005, Percivalmet with representatives of the U.S. Embassy and theNational People’s Congress to provide advice on whatpriorities should be established for a project to translateU.S. environmental laws into Chinese. In November2005, he returned to China at the invitation of theEnvironment and Resources Protection Committee ofthe National People’s Congress to make a presentationat the International Forum on Environmental Legislationand Sustainable Development (IFELSD). The openingsession of the IFELSD was held in the Great Hall of thePeople, which is located in the heart of Beijing adjoiningTianamen Square. While the opening session was beingheld, Chinese Premier Hu Jintao was greeting U.S.President George Bush in another portion of the GreatHall of the People.

Professor Percival’s presentation focused onthe legal evolution of U.S. controls on the managementof hazardous waste and the remediation of releases ofhazardous substances. While China has a great manydetailed environmental laws, including regulations on

IMPROVING ENVIRONMENTAL GOVERNANCE IN CHINA Environmental Law Professor Li Yan-Fang to Visit in Fall 2006

hazardous waste management, it does not have anycomprehensive reporting or liability scheme comparable tothe U.S. “Superfund” legislation. U.S. law requires promptreporting of significant chemical releases to the NationalResponse Center and it makes broad classes of partiesresponsible for cleaning them up.

The need for some form of national reporting andresponse legislation was illustrated in late November when achemical factory in Jilin, China, released massive quantitiesof benzene into the Songhua River. This spill forced Chineseauthorities to shut off for four days public supplies ofdrinking water to the downstream town of Harbin withnearly four million inhabitants. As the spill approachedRussia’s border with China, it became a major internationalincident and resulted in the resignation of Xie Zhenhua, thehead of China’s State Environmental Protection Agency(SEPA).

As a result of the benzene spill, Professor Percivalwas invited to return to China in December 2005 to make apresentation to a meeting in Beijing of the EnvironmentalGovernance Task Force of the China Council forInternational Cooperation on Environment and Development(CCIED). The CCIED is an international consortium ofscholars from China, Germany, and other countries who areinvolved in a project to recommend improvements in China’senvironmental laws. University of Maryland ProfessorMiranda Schreurs is a member of the EnvironmentalGovernance Task Force. At the December Task Forcemeeting, Professor Percival made a presentation on howU.S. law requires for reporting and remediation of chemicalspills, while Professor Schreurs presented a history of howvarious countries have handled perceived environmentalemergencies. Percival and Schreurs then assisted the TaskForce in prepared a series of recommendations forimproving Chinese environmental law. These

International Forum on Environmental Legislationand Sustainable Development held in Beijing.

Professor Miranda Schreurs addresses CCIEDEnvironmental Governance Task Force.

Environmental Law 10

recommendations were then submitted to top Chineseofficials. The Chinese government has now establishednational reporting requirements for chemical spills and it haspledged to spend more than $1 billion to clean upcontamination of the Songhua River and to improve theresponsiveness of government agencies to environmentalconcerns.

During both his trips to China in November andDecember, Professor Percival met with staff from thenew Beijing offices of the Natural Resources DefenseCouncil and Environmental Defense. He also met withWang Canfa and Xu Kezhu who manage China’s toppublic interest environmental organization, the Center forLegal Assistance to Pollution Victims (CLAPV).Professor Hu Jing, who also works with CLAPV, iscurrently a visiting scholar at the University of MarylandSchool of Law where he is studying the operations ofMaryland’s environmental law clinic. Maryland hasagreed to continue to host visiting environmental scholarsfrom China after Professor Hu Jing returns to China inJuly. During the fall 2006 semester, Maryland will behosting visiting scholar Li Yan-Fang, an environmentallaw professor from Renmin University School of Law.She is an expert on environmental impact assessment andshe has written a book on public participation in China’senvironmental impact assessment process.

Maryland currently is in the early planning stagesfor hosting an international conference on environmentallaw clinics which will be held in early February 2007. Itwill include officials from CLAPV and otherenvironmental clinics throughout the world.

Professor Percival’s visit to China in Decemberoccurred shortly after the news had broken concerningPresident Bush’s warrantless surveillance program.Because he teaches U.S. constitutional law, ProfessorPercival was invited to appear as a guest on CC-TVInternational’s “Dialogue” program, which is broadcastlive during prime time. Several people who watched thebroadcast commented on how unusual it was for ChineseTV to carry a live program discussing the importance ofcivil liberties, the rule of law and limits on executiveauthority.

Percival presents copy of Statutory Supplement toZhai Yong, Deputy Director General of theLegislation Department of the National People'sCongress Environment and ResourcesConservation Committee.

Professor Li Yan-Fang will be a visiting scholar at thelaw school in Fall of 2006.

Xu Kezhu, Dan Guttman, Li Yan-Fang,Professor Percival and Wang Canfa


Environmental Enforcement in China and Israel

Last summer, I had the opportunity to make a series ofpresentations in the Peoples Republic of China and in the Stateof Israel about the U.S. Environmental Protection Agency'spenalty practice. I was invited to attend an environmentalenforcement conference in China by Environmental Defense(formerly known as the Environmental Defense Fund).Environmental Defense (ED), has received a private grant totrain the Chinese environmental agency known as the StateEnvironmental Protection Agency (SEPA). EPA has beenactively supporting SEPA’s efforts to develop an effectiveenforcement program, and ED’s invitation was enthusiasticallyaccepted. The trip to Israel was actually a vacation my familyhad been planning for a long time. I deliberately scheduledsome free time during our various travels so that I could spendsome time at the Israeli Ministry of the Environment. TheMinistry had been trying to set up a visit to Jerusalem for meover the years but various issues got in the way. So I decidedto just meet with them on the vacation and avoid all thecomplications that had been preventing me from coming.

Backdrop for the Visit to China

After rapidly industrializing over the last 15 years,China is now the world’s largest emitter of sulfur dioxide. Italso emits similarly large amounts of nitrogen oxides andcarbon dioxide. This stems from the fact that China currentlyconsumes about 10% of the world’s energy, second only to theUnited States. Most of this energy comes from coal. China isnow the largest producer and consumer of coal in the world.Unfortunately, the emissions from China’s coal fired powerplants are only minimally controlled. China now has a major airpollution problem. The World Bank in 2001 reported that 16 ofthe world’s top 20 polluted cities were in China. Of the 335Chinese cities regularly monitored for air pollution, 40% fell

into the air quality categories that the World HealthOrganization considers unsuitable for long term humanliving conditions. China’s rapid industrialization will onlycontinue over the next decade only deepening China’senvironmental challenge.

One of the ways China is attempting to meet thischallenge is to develop an effective environmentalenforcement program. China’s environmental agency,SEPA, is a newly established ministry. It was led untilrecently by Xie Zhenhua, a very dynamic leader in theChinese government. He recently created a specialenvironmental enforcement bureau within that ministry.In order to prepare them for the very challenging jobahead, he sought the help of the U.S. EPA. Asmentioned previously, Environmental Defense (ED) has agrant to train the SEPA personnel on a wide range ofissues. Many of the people SEPA brings over to Chinaare current and former EPA officials. SEPA had becomeparticularly interested in EPA’s penalty program, and Iwas asked to attend a conference in Beidaihe to explainhow our civil penalty program works.

It was important for the EPA to respondpositively to this request for assistance not only becausewe have a responsibility to assist a sister environmentalagency from a foreign country, but also because it was inour government’s best interests to do so. The air pollutionChina generates frequently reaches our West Coast.Some of China’s air pollution has even reached Chicago.And in the global economy of the 21st century, our twocountries are closely linked. In 2004, we were China’stop trading partner purchasing $169.6 billion in Chinesegoods. China is now the second largest holder of U.S.Treasury Securities at $243 billion.

Beidaihe

Most Westerners are unfamiliar with Beidaihe.Beidaihe is a seaside resort of the East Coast of China,about 150 miles from Beijing. It is well known in Chinaas the place where Chairman Mao used to take thepolitburo in the summer to escape the heat and humidityof Beijing. This tradition is still maintained, and it is notunusual to see one of China’s leaders in a local restaurantduring the summer. It is a picturesque city which is alsoknown for its large variety of migratory birds. It is abirder’s paradise as species from all over Asia passthrough at some time during the year. Unfortunately,Beidaihe is also affected by China’s air pollution problem.The distinctive gray haze is readily visible throughout thecity.

Participants at the Environmental Enforcement Conferenceheld at Beidaihe, a resort in China.

by Jonathan Libber*


The Conference

The conference that SEPA had invited me to was forthe leaders of the enforcement program in SEPA and theenforcement leaders of nine key provinces and municipalities.Over eighty Chinese enforcement personnel attended. Theconference began with an opening address by the newenforcement bureau’s chief, Mr. Lu Xinyuan. He reviewed indetail the challenges facing China’s enforcement personnel, andintroduced the speakers: Dan Dudek, an economist fromEnvironmental Defense, and that organization's main point ofcontact between EPA and SEPA; Marcia Mulkey, an attorneyand long time manager of various parts of EPA’s regulatoryprogram; and me. I was asked to participate because of myover 20 years of experience supporting EPA’s civil penaltyprogram. All of our presentations were sequentially translatedinto Chinese.

Dan Dudek gave an overview of what he saw as theissues the three of us hoped to address at the conference. Hestarted off with a presentation of the economic motivation toviolate the law. He pointed out that the largest penalties SEPAcould impose for failure to complete an environmental impactanalysis were the equivalent of only $25,000. Yet the economicbenefit from ignoring this requirement was many times greaterthan this for a major project. It was far more cost effective forthe major players in the construction industry to ignore therequirement. Similarly, for the standard air, water andhazardous waste violations, penalties were capped at $12,500no matter how serious the violation. He argued strongly forpenalties that would produce deterrence.

I followed Dan Dudek with a presentation on howpenalties fit into the deterrence equation. I explained that theEPA’s policy for the last 20 years has been to recapture anyeconomic savings derived from the violations. I discussed theusefulness of penalty guidance and the financial theory behindcalculating a violator’s economic benefit from violating the law.Then I gave them a demonstration of the BEN computer model,

which is EPA’s user friendly tool that calculates aviolator’s economic benefit from violating the law.

From the look on the faces of the participants, itwas clear that the financial theory was a bit difficult tograsp. But I assured them that they did not have toknow the theory in order to use the BEN model. Theaudience was a lot more focused when I ran the modelon some simple hypothetical cases. I got the distinctimpression that they were impressed with how easy itwas to use and how quickly one could produce arealistic calculation of economic savings.

Interestingly, ED has produced a Chineseversion of the BEN model that replaces the U.S. tax lawwith Chinese tax law and modifies the cost of capitaland inflation to reflect the economic situation in China.The plan is for the enforcement personnel from SEPA,the provinces and the municipalities to start routinelycalculating the economic savings even though thepenalty caps in place will prevent them from recoveringthose savings in the penalty. In this way they hope todemonstrate to the leaders in China and the public atlarge that the penalty caps are underminingenforcement. I urged the audience to consider linkingthe extensive economic savings beyond the penalty capswith hospital admissions for respiratory ailments in theaffected areas. The cost savings along with the healthimpacts would help drive home the point that the currentpenalty system just did not work. Finally, I emphasizedto them that my presentation was not intended as theend of my relationship with them but the beginning. Iurged them to contact me via my e-mail address, or touse our international toll free line to contact our helpline.(We even have two people at that helpline that speakMandarin, and Cantonese, respectively.)

I had been warned that members of Chineseaudiences often would avoid asking questions for fear oflosing face if the question showed their ignorance, orcaused the speaker to lose face if it showed hisignorance, both very serious cultural issues. In addition,some members of an audience might be afraid to ask aquestion for fear of upstaging a superior and causinghim to lose face. Despite my invitation to interrupt mypresentation with questions, not one person asked aquestion. Even with the warning I had gotten, it wasunnerving to go through an entire forty-five minutepresentation without any questions or feedback. At theend of the first day of the conference, we had aquestion and answer session. For some reason, theaudience felt comfortable asking questions in thissetting. We had a very free flowing, wide rangingdiscussion of the issues. After the discussion session,everyone assembled outside the lecture hall for aceremonial photo. Where a person stood in each rowwas carefully dictated by protocol.

Jonthan Libber gives presentation at conference.


Excursion

As a way of expressing its appreciation for MarciaMulkey and me coming to China, ED treated us to anexcursion to an area near Beidaihe. The first place we wentto was the part of the Great Wall of China that meets the EastChina Sea at a city known as Shanhaiguan. In essence, this isthe end of the Great Wall. While there are parts of the 6,000-mile wall that are accessible from the major cities of China,and visited by lots Western tourists, this particular piece of thewall was not near any of these cities. As a result, all thetourists were Chinese, except for us. That part of the wall islike a national park as there are a great many things toexperience and do there other than viewing the wall. Thereare a number of historic buildings in the area that are related tothe Great Wall such as the officers’ quarters of the garrisonthat was once stationed there to defend the wall. One couldalso take a ride in a litter like the Chinese royalty used to take.The ride came with live music from a Chinese windinstrument. In contrast to the litter rides of old, the four mencarrying the litter were intent on making the journey as excitingas possible. The four men moved the litter up, down andsideways in raid succession making the ride anything but dullfor the venturesome rider, and it was rather entertaining towatch.

Our second stop was at Cheng De, the place wherethe first emperor of China, Qin Shihuang, went to pray at thesea for immortality once the empire controlled all of China.(He was not entirely successful.) This is also sort of a park,but the structures and contents of the park were a fairly recentcreation. We managed to arrive in time to see a re-enactmentof some royal pageant complete with acrobats and fourcolorful lions. Each lion consisted of two very wellcoordinated men in costume. The movement was so lifelikethat it was easy to forget that there were two people operatingeach lion. The park also featured peacocks, ostriches andsome caged tigers.

Backdrop to the Israel Trip

In contrast to China, Israel is a country of only sixmillion people. While its neighbors have only minimallyindustrialized, Israel has fully industrialized. Unfortunately,along with that economic sophistication comes a fullpanoply of environmental issues. The State of Israel hasdeveloped the statutory authority to address these issues.But its fight against terrorism over the last six years hadpushed environmental enforcement well down on the list ofnational priorities. Over the years, the Ministry or privatecitizens working with the Ministry had been in contact withme over penalty issues. About six years ago I had evenhelped them analyze some of their penalty decisions bycalculating the economic savings and then comparing thatwith the actual penalty assessed. The assessed penaltieswere only about 1% of the economic savings. Subsequentlegislation attempted to address the issue of benefitrecapture. In fact, someone from the Technion in Haifahad developed an Israeli version of the BEN model. TheIsraeli model is called the Cherem Model. But the idea ofroutinely recapturing a violator’s economic savings had nottaken root in the Ministry.

The Ministry and some of the private citizensworking with them had been trying to bring me to Israel tomake a series of presentations for the Ministry, for theregulated community and for a Law School located inNetanya. These efforts had come close, but a combinationof political issues and terrorism had interfered with thoseefforts. I decided to bring my family to Israel for our firstvacation in nine years. Since the cost of getting there issubstantial, we decided to stay for about three weeks. Wedid a lot of touring the first two weeks, but I deliberatelyleft some free time in the third week to visit friends, shopand finally make a presentation at the Ministry.

Presentation in Jerusalem

The Ministry is located on the outskirts ofJerusalem. The time I proposed was the last week ofAugust. The Israeli school calendar is similar to ours inthat there is a significant break during the summer with alot of families taking their annual vacations the last week inAugust. But despite the timing issue, we had a very goodturn out for the first presentation which focused mostly onstaff. Although the Ministry’s General Counsel, RuthRotenberg, attended, most of the assembled were from theMinistry’s headquarters, but a number came from some ofthe regional offices around the country. Several of theparticipants were from environmental law firms in Israelwhich gave the presentation an interesting dynamic. Onthe one hand, I was trying to encourage the Ministry staffto try to recapture benefit by explaining how important it

Jonathan tours Great Wall of China.


The second presentation was much shorter and wasfor the senior managers in the Ministry. In Israel, a memberof the ruling coalition in the Knesset is the Minister. He orshe is the political leader corresponding to our cabinetsecretaries in Washington. But for continuity, there is aprofessional leader of the Agency who is not directlyconnected to the legislative branch of the government. Thatperson is much more involved in the day-to-day activities ofthe involved Ministry. Interestingly, the professional personleading the Ministry happened to be the ex-wife of BenjaminNetanyahu, the former and current leader of the Likud party.She and her senior managers attended the thirty minutebriefing. While there were fewer questions than before, therewas significant interest in what we were doing at the EPA inregard to benefit recapture.

Conclusions

China’s SEPA clearly has its work cut out for it.While its leadership seems both creative and dynamic, tryingto change the culture in China to make serious enforcement

acceptable is a spectacular challenge. Yet if the leaders arewilling to take China in that direction, great things can beaccomplished. For example, in 2001, China eliminated allleaded gas in about 6 months time. But this is obviously muchmore than eliminating lead in gas. The economic cost ofretrofitting their coal burning energy facilities with effectivepollution control equipment will be staggering. Yet China’sspectacular growth rate (9% in the first half of 2005) couldconceivable sustain such an effort.

Israel’s challenge is totally different but no lessdaunting. While the Ministry has the infrastructure in place tohave an effective program, the economic, political and psychicimpact of fighting the war against terrorism has taken its toll.With Hamas taking control of the Palestinian government, thefaintly glowing embers of the Oslo process are now finallyextinguished. Sadly, some of those who stand to lose the mostare the Palestinian Arabs living in the PA controlled areas.For example, criminal elements in Israel have found Arabsliving in PA areas willing to “partner” with them in illegallydisposing of hazardous wastes generated by Israeli industries.The problems the Ministry faces will only get morechallenging.

was for deterrence purposes. I had to be cognizant of theprivate attorneys’ interests in keeping the penalties small.Despite this dichotomy, the presentation worked well. It wenton for about two hours. In contrast with my presentation inChina only one month earlier, the Israeli audience pepperedme with questions. Israeli culture, which is quite secular, isstill heavily influenced by traditional Jewish attitudes. One ofthem is to ask lots of questions if you want to understandsomething. The Rabbis observed over two thousand yearsago that a bashful person cannot be successful in his studies.I did not notice any bashful people working for the Ministry.In addition, everyone there spoke English, and I think thatfacilitated the discussion.

*Jonathan D. Libber, a 1978 graduate of the Universityof Maryland School of Law, currently serves as a SeniorAttorney in EPA’s Office of Enforcement andCompliance Assurance. He has worked there for thepast 27 years where he works primarily on civil penaltyissues and financial issues that impact litigation. Thisarticle expresses the views and observations of the authorand does not necessarily reflect the views of the U.S.EPA.

Jonathan and family at restaurant in Jerusalem.

COMINGFEBRUARY 7-9, 2007

"Globalizing Clinical Education toProtect the World's Environment"

WARD KERSHAWENVIRONMENTAL LAW

SYMPOSIUM


Introduction

Last June, the Maryland State Bar Association’sBar Bulletin featured an article in its Environmental Lawfocus section entitled “Bad Science” in StateRegulations May Come under Federal Data QualityScrutiny available at http://www.msba.org/departments/commpubl/publications/bar_bult/2005/june05/science.htm(last visited Feb. 2, 2006). The article brought into focusthe potential local impacts of a little-known federal statutecalled the Data Quality Act. The Act, also referred to asthe “Information Quality Act” (IQA), came quietly ontothe legislative stage in late 2000 as an appropriationsrider. Its stated goal is relatively non-controversial: itaims to ensure the “quality objectivity, utility and integrity”of information disseminated by federal agencies. Tofurther that objective, the Act required first the Office ofManagement and Budget (OMB), and then the federalagencies, to establish information quality guidelines. TheAct also required that agencies establish an administrativeprocess to allow members of the public to request thatagencies correct information falling short of theseguidelines.

As implemented by OMB and used by regulatedindustry, the IQA has raised significant concerns amongproponents of environmental, health and safetyregulations. The MSBA Bar Bulletin article, and thepetition upon which it relied to make its case, serve ascompelling illustrations of several of these concerns.

Ozone, the Clean Air Act, and VOCs in Paint

The article’s authors highlighted an IQA petitionfiled by one of their clients, the Sherwin-WilliamsCompany. A year earlier, Sherwin-Williams, joined bythe National Paint and Coatings Association (NPCA),filed an IQA “Request for Correction of Information”with the United States Environmental Protection Agency(EPA). In it, the paint industry challenged the adoptionby states in the Ozone Transport Commission (OTC) ofrules that would regulate emissions of volatile organiccompounds (VOC) from certain paints and coatings morestrictly than does the existing federal rule.

Maryland is among the OTC states striving tocontrol ground-level ozone pollution – also known as“smog” – formed when VOCs react with oxides ofnitrogen (NOx) in the presence of heat and sunlight.Ground-level ozone is one of the six criteria pollutantsregulated under the Clean Air Act (CAA). It causes arange of adverse health effects, including shortness of

Little-Known Federal “Information Quality Act” Hits Homeby Margaret H. Clune*

breath, increased susceptibility to respiratory infection,impaired lung function, severe lung swelling and evendeath. Data collected by the American Lung Associationdemonstrate that more than 8% of Maryland’s populationsuffers from asthma.

Under the CAA, states that contain areas that failto attain the federally-mandated CAA levels of criteriapollutants must develop State Implementation Plans(SIPs), which EPA must then approve, so long as theymeet statutorily defined criteria. SIPs set forth a varietyof strategies for curbing emissions of criteria pollutants (or,in the case of ground-level ozone, its precursorcompounds, VOCs and NOx) to levels within the NationalAmbient Air Quality Standards (NAAQS).

In 1999, EPA advised Maryland and other mid-Atlantic states that even all the control measures thencontained in their state implementation plans (SIP) wouldnot be sufficient to bring the states into compliance withthe NAAQS for ozone. Additional measures would haveto be implemented to further reduce VOC emissions –Maryland would have to cut an additional 13 tons per day.The state looked to what its 1990 base-year emissionsinventory counted as the fourth largest source of VOCemissions in the Baltimore area – paints and coatings. Asoil-based “architectural and industrial maintenance” paintsand coatings dry or sit out in the open, they emit VOCs.

To help achieve the CAA ozone standard,Maryland implemented a paint rule based on an OTCmodel rule. The OTC model rule, in turn, was based on asimilar rule adopted in Southern California in the late 1990sand throughout that state in 2000. The California andmodel rules regulate VOC emissions from AIM coatingsmore stringently than does the existing federal paint rule,also adopted in the 1990s. The NPCA and the Sherwin-Williams Company have fought the stricter state rulesevery step of the way.

The Industry’s IQA Challenge to the Paint Rules

After unsuccessfully objecting to the paint rulesduring the state rulemaking processes, the industry filed anIQA petition with EPA. The supposedly inaccurateinformation to which the industry objected (and thus itsostensible ground for filing the petition) was a spreadsheetused by the states to help predict the VOC emissionsreductions that would result under the new paint rules. Inthe state rulemakings where the paint industry raised thearguments it later made to EPA in its IQA petition, the


states provided reasonable explanations for thesupposed “errors” and further assured industry thatthe spreadsheet was neither the sole nor primarysource of explanation of the emission reductionscalculations used by the states in writing the rules.

More important than the ins and outs of theinformation claimed to be of insufficient “quality,”however, are the troubling implications of thepetition’s logic. NPCA and Sherwin-Williamsargued that a single document among the voluminousstate rulemaking records in support of the AIM rulesviolates the federal IQA and that EPA shouldtherefore reject any proposed SIP revisioncontaining such a rule. As summed up by the BarBulletin article, “[t]o the extent a state needs toobtain EPA approval for a state rule . . . a state rulecan become the subject of [IQA] scrutiny.” In otherwords, when EPA conducts its internal review of thestate administrative records in support of the SIPrevisions and subsequently proposes to approve therevisions, the agency “disseminates” the informationin the state administrative records, even if EPAnever communicates that information to thepublic.

EPA correctly rejected the Sherwin-Williams/NPCA petition, noting that in approving thestate AIM rules, the agency was not “disseminating”the spreadsheet but was merely following itsobligations under the CAA to approve state SIPsubmissions that meet the statute’s criteria.Sherwin-Williams filed an administrative appeal ofEPA’s denial of its IQA petition, which EPA alsodenied, and sued EPA over the agency’s approval ofPennsylvania and New York’s paint rules in federalcourt. Sherwin-Williams later withdrew the lawsuitover the Pennsylvania paint rule, reportedly becausestate environmental officials threatened to publicizeits actions, which it was pursuing while marketingitself as an environmentally friendly company.Nonetheless, the authors of the Bar Bulletin articleargued that as the result of the Sherwin-WilliamsIQA petition and appeals, EPA agreed that analternative methodology to the allegedly flawedspreadsheet could be used to calculate VOCemission reduction credits. Indeed, EPA hasundertaken an evaluation of other potentialmethodologies for calculating the emissions reductioncredits that states may take after implementing theirpaint rules, though it has indicated its decision to doso is not a response to the paint industry’s criticismof the spreadsheet.

What’s Next for the IQA?

Whether or not parties can actually have their IQAcases heard in court (as distinct from merely filing suit) iscurrently the subject of much debate. Two federal districtcourts have already ruled that there is no judicial review ofagency decisions on IQA challenges. This March, theUnited States Court of Appeals for the Fourth Circuit upheldone of those district court decisions. In agreeing with thelower court that the plaintiffs in the case lacked Article IIIstanding to pursue their IQA suit, the court held that the IQAdoes not create a legal right to correctness of information.Salt Institute v. Leavitt, 440 F. 3d 156 (4th Cir. 2006).

The Fourth Circuit’s word in the Salt opinion,however, will not be the last. Industry proponents eager toensure that they can proceed to court if they are unhappywith an agency’s decision on an IQA petition have madeclear their intent to ask Congress to pass legislationspecifically providing for judicial review of the Act. Whetheror not the IQA is ultimately found by a court, or made byCongress, to provide for judicial review will undoubtedlydetermine the Act’s true potential for changing the landscapeof environmental, health and safety law. The Sherwin-Williams Company’s attempt to use the IQA as one lastchance to derail Maryland’s paint rule makes vividly clearthat a little-known statute, seemingly of interest only to thosemost intimate with regulatory policy and/or administrativelaw, can have impacts so far-reaching as to affect everyonewho breathes Baltimore’s summer air. It is thereforeimperative that any legislation offered to make the IQAjudicially reviewable be – unlike the IQA as originally passed– the subject of congressional hearing and debate.*Margaret Clune is a policy analyst at the Center forProgressive Reform in Washington, DC. She is a 2002graduate of the University of Maryland School of Lawand has a Masters of Community Planning from theUniversity of Maryland College Park.

NOTICE TO ALUMNI

The next issue of the Environmental Law atMaryland Newsletter will include the "AlumniUpdate." Please send any changes in employ-ment or address to Laura Mrozek [email protected].

Thank you.


Describe the career path that brought you to your currentposition with the Deep Sea Conservation Coalition.

Prior to law school, I had a career with a nonprofitfoundation, so my interests have always been somewhatgeared to working with non-governmental organizations(NGOs). While in law school at Maryland, I focused oninternational and environmental issues, taking as manycourses in both areas as I could. My first position as anassociate was with a DC firm that specialized in internationalenvironmental and trade issues. So for a few years, most ofmy work involved lobbying activities concerning the MontrealProtocol on Substances that Deplete the Ozone Layer, andother environmental regulatory work. That was pre-kids.Once children came along, balancing everything added adifferent dimension, so we moved to New York for myhusband’s job. After a 3-year hiatus from the law (mostlychanging diapers), I went to work with environmentalpractice groups of some large NYC firms. However,environmental practice in New York City is largely centeredon litigation, and I much preferred regulatory work.

So fairly late in life, I went back to school to get an LL.M. ininternational environmental law from New York UniversitySchool of Law, which in retrospect, was key in retooling fora career in international environmental law. While at NYULaw, I took a number of unpaid internships including atHuman Rights Watch, and Natural Resources DefenseCouncil, and published a few law review articles on variousinternational environmental topics. This led to a consultingposition with an NGO to develop a program on internationalenvironmental governance in preparation with the WorldSummit held in Johannesburg, South Africa in 2002. Muchof the work I did with this organization was based at theUnited Nations, so this led directly into my current position asUN Representative and Coordinator for the Deep SeaConservation Coalition.

Tell us about the Deep Sea Conservation Coalition andresponsibilities with the organization.

The Deep Sea Conservation Coalition is comprised of about40 environmental NGOs from around the world, includingNatural Resources Defense Council, Greenpeace, Oceana,Conservation International and many others. Our aim is forthe UN General Assembly to adopt a moratorium on highseas bottom trawl fishing; a fishing practice where trawlersdrag heavily weighted nets across the ocean floor, destroyingancient corals, seamounts, and leaving behind an oceandesert. Over 1,100 eminent marine biologists have signed astatement that this fishing practice is the most serious threatto the living resources of the deep sea. Surprisingly, thisdamage is caused by only eleven countries, mostly inEurope. Our Coalition argues that this practice is both illegaland unregulated fishing under a number of internationalinstruments and principles (UN Convention on Law of theSea, Fish Stocks Agreement, Convention on BiologicalDiversity, precautionary principle, and numerous UNresolutions) and should therefore be halted.

I am fortunate to work with some of the world’s foremostscientific and legal experts on oceans, who also happen to beextremely generous with their knowledge. They are anamazing group of individuals – so it is a privilege to work onissues that I care about with such committed people.

In my present position, I am responsible for organizing alllobbying activities at the United Nations at governmentmissions and during periodic meetings that are held at theUN to discuss oceans issues under the Law of the SeaConvention and other related instruments. In the Fall, UNresolution negotiations on oceans and fisheries will takeplace on a daily basis over a six week period.

What is a typical day on the job like for you?

This is an important year for oceans at the UN, with anumber of meetings geared to address a variety of oceansissues. Right now, I’m preparing for a week-long meeting tobe held next week on the Fish Stocks Agreement. My weekinvolves meeting with UN Mission representatives (I havebeen focusing on developing countries), where I present theDSCC position on some of the issues that will arise at themeetings. I am also preparing with my colleagues asubmission (similar to a comment letter) to the UNSecretariat on Oceans and Law of the Sea. Once themeeting takes place, I’m responsible for coordinating all ofour Coalition activities, including coordinating daily updatemeetings among the NGO representatives that are in town.Throughout the meeting, I act as an observer anddisseminate updates to our Coalition members around theworld. I also try to speak with different delegations

Peggy Kalas, a 1991 graduate of the law school, is UNCoordinator for the Deep Sea Conservation Coalition(DSCC) in New York.

ALUMNI PROFILE - PEGGY KALAS, '91


throughout the week to press our position, and exchangeinformation on what’s happening “behind the corridors.”

What attracted you to the environmental field?

No doubt about it — Bob Percival spurred my interest inenvironmental law. I had started at Maryland with a definiteinterest in international law, but it was Bob’s survey class inenvironmental law where something clicked. How lucky Iwas to have access to someone like Bob Percival, at a timewhen international environmental law was still at its infancy.As of 1989, in the international environmental law course,only a handful of treaties had been ratified. Now, there areover 500 international, regional and bilateral agreements, tothe point that a real problem exists concerning the overlap oftreaties and the need for an improved and reformedenvironmental governance regime. Every year whenMaryland's environmental program is rated in U. S. Newsand World Report, I’m so proud of how the program hasdeveloped under Bob’s leadership.

What attracted you to your current position? What do youenjoy the most about it?

I love being able to meet on a daily basis so many interestingand committed people from around the world. And thoughadmittedly, the UN has its problems, I truly believe in theneed for a world forum to address global concerns. We haveto start somewhere.

What are the biggest challenges you face in performingyour job? What are some of the accomplishments ofwhich you are the most proud?

The biggest challenge is the UN process itself. Because aconsensus is needed, a single nation can block an entireregion, or the whole UN plenary from adopting a position. Inone-on-one meetings, some governments will say that theyare supportive of a moratorium, but fail to speak out duringnegotiations because they are pressured from othergovernments. During final votes, which go late into the nightbehind closed doors (we have no access at these times), wemust rely on friendly governments to report back on positionsand movement among governments. It’s usually a night ofhand-wringing and many surprises (both positive andnegative) as to the governments that ultimately support ourinitiatives.

How did law school prepare you for your career? Whatdo you wish you had learned more about in law school?What are the best ways for law students to prepare for acareer in the environmental field?

First and foremost is to have a good basis in legal researchand writing. It also helps to have a solid foundation in thetenets of environmental and international law, which Ireceived in law school. But I learned how to practically applythe law through my first legal positions after law school.Now, there are so many more environmental courses to

choose from. I would also recommend taking internshipsin the area in which you want to focus. This is the bestway to get your foot in the door, make contacts, and often,these positions turn into permanent positions.

Also important is where you end up practicing after lawschool. Based on the experience of so many friends andcolleagues, many lawyers end up practicing the type oflaw that they start off with in their first associate position.So choose your first position carefully, as one year caneasily turn into five.

How do you feel about the state of the environment?What do you predict will be some of the mostsignificant developments in the environmental field inthe years to come?

I believe we are facing many serious problems, and mostegregious is global warming. As it progresses, it affectsnot only atmospheric changes, but oceans, desertificationand loss of biodiversity. Some of these effects that weare seeing today include more rain and storms, a rise insea level, and melting of polar ice caps. This meanseventual flooding of low-lying countries, as well as a threatto coastal cities around the world, forcing some to migratefrom their homes as “environmental refugees.” So weurgently have to address this, individually and collectively,and governments must find the political will to makebenchmark commitments in this regard.

Also, internationally, there is a huge governance gap onenvironmental legal issues, including in the realm of oceansconservation. As a Coalition, our long-term goal is thedevelopment of a new instrument or implementingagreement to the Law of the Sea Convention that wouldgovern biodiversity and conservation of the deep seas, asthis is an area that is presently not covered. Such aninstrument could require environmental impactassessments prior to engaging in any activities on the highseas, similar to that required for land-based activitiesdomestically.

Is there a law school memory you wish to share?

Probably most memorable from law school were thepersonal relationships, both with classmates and faculty.Since I met my husband at Maryland (he was a fellowclassmate in the same section), I have many specialmemories. But in particular, my husband was one ofBob’s research assistants for one of his books. Bobinvited all his research assistants to his home in DC fordinner one evening — I got to tag along. That left a realimpression on me (I still remember the special wines), butparticularly, on the generosity of Bob to open his home tostudents. But it is typical of how the environmentalprogram is run, the accessibility of faculty, the sense ofcommunity, and friendships made that are lifelong.


Describe the career path that brought you to your currentposition with Advanced Micro Devices.

That’s a tortuous one. Immediately after law school (May’94), my wife Jael and I moved to Austin – jobless – to studyfor the bar. I ended up with a staff attorney position at theTexas Natural Resource Conservation Commission – a greatjob and training (if sink-or-swim qualifies as “training”). ThereI specialized in issues from water rights permitting toenvironmental audit privilege to settlement of enforcementactions with supplemental environmental projects. I broke upthe TNRCC period with a Robert Bosch Fellowship throughwhich I spent a year in Germany working on environmentaltechnology transfer in the Environment Ministry and onenvironmental issues involved with privatization of former EastGerman industrial sites in the successor agency of theTreuhand national trust. Not long after I returned to theTNRCC, Jael landed a job as Books Editor for theEnvironmental Law Institute in Washington, DC and headedback to the East Coast without me. I scrambled to findsomething in DC and was very fortunate to land as anassociate at Piper & Marbury. There, I specialized inhazardous waste and hazmat transportation issues for anelectric utility industry trade association. That involvedregulatory advocacy, compliance counseling, and appellatework. Most importantly, I benefited from great mentors whoinstilled confidence in me. Ultimately, Jael and I came torealize that Austin was where we needed to raise our family.I was again fortunate to learn of an opening for an EHSattorney at Advanced Micro Devices (AMD). After a fewyears serving as AMD’s counsel to the worldwide EHSprogram, the company prepared to spin off its flash memorysubsidiary (Spansion), and the EHS Director went with it. Iwas asked to transfer from the Law Department to form andlead the new AMD Global EHS organization, which wascreated for the new AMD in May 2005.

Describe your current position – with whom do youwork, what are your primary responsibilities?

I direct Global EHS, AMD’s corporate environmental,health and safety organization. AMD designs, builds, andmarkets microprocessors and related, integrated solutions.AMD was recently named the most innovativesemiconductor company by Fortune Magazine and is in themidst of a tremendous period of growth. My organizationhas 10 direct employees in Austin, Texas, Sunnyvale,California, and Dresden, Germany. In addition, there areapproximately 40 site-based EHS staff around the worldreporting in through the global structure. We havemanufacturing and R&D operations in 8 countries andsales offices and marketing presence throughout theworld. There’s a wide range of issues, including productand manufacturing process stewardship, new technologyevaluation and integration, employee safety and well-being, and business continuity management. So theseresponsibilities require me to work across the matrix of thecompany.

What is a typical day on the job like for you?

The company is going through a tremendous period oftransition and growth in a ferociously competitive market.At the same time, I’m building a new organizationdesigned for those challenges. So nothing is quite typicalright now. Days are generally a string of conferencecalls, meetings, and videoconferences with people fromaround the company.

What attracted you to the environmental field?

I came to law school after an uninspiring year as aprocess engineer in a chemical plant on the Houston ShipChannel. I had an interest in environmental law but wasindecisive. Bob Percival's multidisciplinary approach toenvironmental law was captivating and helped merecognize that the field provided an endless variety ofinteresting, complex issues.

What attracted you to your current job? What do youenjoy the most about it?

The current job completes the progression from privatepractice counsel to in-house counsel to client. With eachstep I’ve been drawn closer to the decisionmaking, andI’m very attracted by the opportunity to advance EHSissues in a way that complements business objectives –e.g., we’ve driven product energy efficiency into position

Steve Groseclose, a 1994 graduate of the law school,with his daughter Annabel, is Director of GlobalEnvironmental, Health & Safety for Advanced MicroDevices, Inc., in Austin, Texas.

ALUMNI PROFILE - STEVE GROSECLOSE, '94


as a key competitive advantage, while also pushing aholistic approach to energy efficiency that spans productdesign, site development, manufacturing operations, andproduct performance. The most enjoyable part of my jobis working with creative, intelligent people from aroundthe world.

What are the biggest challenges you face inperforming your job? What are some of your job-related accomplishments of which you are the mostproud?

We’re transforming from a small, underdog company to alarge market leader at an extremely fast pace. Thesedynamics create many opportunities and risks that needto be addressed in the near term. The most significantchallenge is to create a new organization and approachthat transitions us from the historic regional,manufacturing-site focus to a truly global approach.There’s a long way to go, but I’m proud of what we’vedone in my organization’s first year because I think wehave made some critical steps towards positioning EHSstewardship as a cornerstone and cultural bellwether forthe company across the world. While there may bemany aggravating moments in a given day, and thecompany seems never to stop for breath, it’s never dull.

How did law school prepare you for your career?What do you wish you had learned more about in lawschool?

The most valuable, enduring asset that law school honedwas the combination of critical analysis and the ability toassess issues from numerous perspectives (the latterbeing something I attribute to the environmental lawprogram rather than legal education in general). Theseprovide the basis for success in any field, regardlesswhether the specific, substantive knowledge acquired inlaw school becomes outdated. I’d also emphasize thatpursuing a second discipline (environmental engineering)while I was in law school magnified the benefits.

I guess the cost of that focus on environmentalperspectives was that I de-emphasized the non-environmental training. I wish I had given a bit moretime to issues such as intellectual property, health care,and business law. I am exposed to those issuesconstantly, and a deeper grounding would have beenvaluable.

I think the most important thing for law students iscuriosity for multiple perspectives on issues, as well asflexibility in career path. It’s an ever changing field, and Icould not have plotted a linear career path to apredetermined end goal. As for specific preparation, Ithink the best thing is practice – internships, clinic, andwhatever job you are fortunate enough to land after lawschool. Take whatever opportunities come your way anddo your very best with those. Other opportunities willunfold with time, though you may have to kick it from timeto time.

How do you feel about the state of the environment?What do you predict will be some of the mostsignificant developments in the environmental field inthe years to come?

I am concerned by the pace of global development in theface of resource constraints and social/economic inequity.But I am hopeful that the growing strength of corporateenvironmental stewardship and the broader concept ofcorporate responsibility can steer the global market in theright direction.

From my perspective, the most significant developmentswill be the continuation and expansion of this trend. Forexample, in the mainstream of the electronics industry,corporate responsibility and environmental stewardship isan expectation that the marketplace is beginning toenforce up and down the supply chain. Future progresshas to involve tapping into the intelligence and creativity ofpeople around the world and the innate drive for socio-economic equity. Technology plays a strong role, so I’mespecially excited by the potential of the technologysector’s awareness of corporate responsibility.

Is there a law school memory you wish to share?

During my second year a friend’s father invited me tolunch in the partner’s dining room at Venable. He askedme what area of law I wanted to practice. I responded,“International environmental law.” He told me I shouldgrow up, be realistic and pursue a sensible practice likeestates and trusts.

What are the best ways for law students to preparefor a career in the environmental field?


Dean Karen Rothenberg with Paul Bekman, '71, (left) Chair, UM School of Law Board of Visitors,and Stuart Salsburg, '71, Member, UM Law School Board of Visitors, at winetasting.

14th Annual Environmental Law Winetasting

Delegate Jon Cardin, '01, presented to Professor Robert Percival an "Official Citation" to theEnvironmental Law Program in recognition of its service to the State of Maryland.


MELS Board Members, Megan Moeller, 3D, MikeMcCarthy, 3D, Cori Iacovelli, 2D, Karla Schaffer, 2D,Dave McMurray, 2D, and April Birnbaum, 2D.

Professor Rena Steinzor with Tracy Steedman, '03.

Carl Jean-Baptiste, '97, and Rachel SchowalterJean-Baptiste, '97, attend winetasting.

Geoffrey Washington, '97, with his girlfriend,enjoy the evening.

Approximately 200 guests attended the winetasting.

Apple Chapman, '99, and Paul Versace, '99,enjoy meeting "old friends" at wine party.


Students, alumni and faculty sample the wine.

Madeline Goger, daughter of Joanna Goger,'00,stays up late to party.

John Shoaff, '99, his wife, Laura and theirdaughter, speak with Professor Percival.

Lonnie Kishiyana, '04, with his wife Kari, enjoy theevening.

Erica Zilioli, 3D, and Natalie Havlina, 3D,enjoy the evening with their friend.

Megan Moeller, 3D, and friend speak with hermentor, Terry Harris, '01 (right).


NEW ENVIRONMENTAL SEMINARS TO DEBUT IN 2006-2007

J. T. SmithAlan S. Miller

During the 2006-2007 academic year, Maryland’s Environmental Law Program will be offering two newenvironmental law seminars. During the fall semester 2006, J.T. Smith II will teach a new seminar thatemphasizes practice skills applicable to the handling of cases involving liability for, and remediation of, releases ofhazardous substances under RCRA and CERCLA. During the spring semester 2007, international energy policyexperts Alan S. Miller and Robert C. Means will offer a new seminar on Energy Policy and Climate Change.

The new seminar on “Energy Policy and ClimateChange” will examine how energy law and policy areresponding to the problems of global warming and climatechange. It will consider what science reveals about theclimate change problem, including the uncertainties in thescience and the significance and role of dissent from themainstream view of the science. It then will consider,given the current state of science, what actions should betaken to respond to these problems. Issues of timing andpriorities will be considered, including the possibly longdelay between the time when the actions are taken (andtheir costs incurred) and the time when their benefit isreceived, as well as competing priorities, especially thoseof the developing countries that would be most severelyaffected by a warmer world. The course also willconsider technical and institutional responses to theprospect of climate change, focusing on electricitygeneration and transportation, the Kyoto Protocol andenergy law and policy.

Alan S. Miller is a former lawyer for the NaturalResources Defense Council and a former visitingprofessor at the University of Maryland School of Law.He is currently an official with the International FinanceCorporation in Washington, D.C., where he is involved infinancing alternative energy projects throughout theworld. He is a graduate of the University of MichiganSchool of Law. Robert C. Means is an internationalconsultant who has been an advisor to severalgovernments on energy issues. He is a former directorof the policy office of the Federal Energy RegulatoryCommission and a former professor at the University ofTexas School of Law. He is a graduate of Harvard LawSchool.

J.T. Smith’s course will draw on his longexperience representing clients in complexenvironmental compliance and remediation matters.The course will focus upon liability and cleanupregimes for hazardous substances and hazardouswastes and the respective approaches of RCRA andCERCLA to cleanup of past and present releases ofhazardous wastes. While a seminar on FederalRegulation of Hazardous Wastes has been offered atMaryland in the past, J.T. Smith’s course will have anew “practice” orientation. In addition to consideringthe major legal and policy issues raised by RCRA andCERCLA, the seminar will help students learn how toprepare comments in notice and comment rulemaking,how to conduct appellate challenges to rules,compliance counseling, the use of technical andscientific experts in rulemaking and in litigation, andhow to negotiate environmental compliance andremediation claims with governmental authorities.

J.T. Smith II is a partner at Covington &Burling in Washington, D.C. He has previouslyserved as an executive assistant to the U.S. AttorneyGeneral and as general counsel of the U.S.Department of Commerce. Smith has extensiveexperience representing a wide range of industrialclients in complex environmental matters. He is agraduate of Yale University and Yale Law School.


Our mission is to make the public aware of the fact that for many of the 10 million who make upthe survivor community, cancer is still a long-term challenge and that more funds are needed for treatmentand support programs for survivors and their families. The Yale Cancer Survivorship Clinic is the primarybeneficiary of this event, but Challenge America Foundation is inviting high school students and others acrossthe country to form relay teams to run with Christian along his route and raise money for non-profits focusingon cancer survivorship issues in their local communities.

Please take a few minutes to check out the event website (www.coasttocoastrun.org) and see howyou can be part of Coast to Coast: A Run for Survivorship. If you wish to make a donation to Coast toCoast, you can do so on line by clicking on the “donate” link. Another option is for an individual or a group to“Buy a Mile” for $100. We hope to sell each of Christian’s 3500 miles so that every step of the run is done inhonor of someone who has battled or continues to battle cancer. Also, we have long sleeve t-shirts bearingthe slogan “gone running” available for purchase.

TAKE THE CHALLENGESUPPORT CANCER SURVIVORS

Jeanne M. Grasso, Class of 1994PartnerBlank Rome LLP

Jane Barrett, class of 1976, with son, Chris

This is to introduce you to an excitingcharitable project on which I’m working –Challenge America Foundation’s Coast toCoast: A Run for Survivorship.

Beginning in July 2006, ChristianMcEvoy, a high school teacher from Fairfield,Connecticut, and the son of my friend and lawpartner Jane Barrett, Class of 1976, will berunning approximately 3500 miles across theUnited States, from California to Rhode Island,to raise funds and awareness for cancersurvivorship. I have signed on as a volunteer tohelp make this event a success. My law firm,Blank Rome LLP, has also signed on as asponsor and is providing pro bono legalservices.


Environmental Mentoring Dinner(left to right) Jonathan Libber,'78, Karin Krchnak, '93, Melanie Shepherdson, '00, James Benjamin, '01,Bill Piermattei, '99, Nicole Lacoste, '99, and Chris Corzine, '02.

Environmental students take a canoe tripon the Potomac River.

Students tour University of Maryland FacilitiesManagement with Vassie Hollamon, AssociateDirector of General Services.

Student Karla Shaffer participates in Water MonitoringProgram for World Water Monitoring Day.

ENVIRONMENTAL STUDENTS MIX FUN WITH GOOD DEEDS


American Bar AssociationStanding Committee on Environmental Law

34th National Spring Conference on the EnvironmentJune 9, 2006 ** Baltimore, MD

ECOSYSTEMS, INFRASTRUCTURE and the ENVIRONMENT:RECONCILING LAW, POLICY AND NATURE_________________________________________________

University of Maryland School of LawCeremonial Moot Court Room, Main Floor

· 8:00 am: Registration and coffee

· 8:30 am: Welcome: R. Kinnan Golemon, Brown, McCarroll, LLP, Austin, TX andProfessor Robert V. Percival, Director, Environmental Law Program, University of MarylandSchool of Law, Baltimore, MD

Conference Goals and Introduction of Keynote Speaker:David Hodas, Professor of Law, Widener University School of Law, Wilmington, DE

· 8:45 - 9:30 am: Opening Keynote Address: “Envisioning Land Use Policy: In Harmonyor Conflict with the Laws of Nature,” Bruce Babbitt, Former Secretary of the Interior,Washington, DC

· 9:30 - 11:00 am: “Disasters, Ecosystems & Infrastructure: Hurricane Season 2005”What went wrong along the Gulf Coast and why - policy, natural resources impacts, political inputs.What is the role of wetlands in infrastructure preservation? Which laws influenced the outcomes ofthe hurricanes? Which laws will channel decisions for reconstruction?

Moderator: Denise Antolini, Associate Professor of Law, Williams S. Richardson School of Law,University of Hawai’i at Manoa, Honolulu, HI

Speakers: Cynthia Drew, Associate Professor of Law, University of Miami School of Law, CoralGables, FL; Monique M. Edwards, Executive Counsel to the Secretary, Louisiana Department ofNatural Resources, Baton Rouge, LA; Leslie Carothers, President, Environmental Law Institute,Washington, DC

· 11:00 - 11:15 am: Networking Break

· 11:15 am - 12:45 pm: “Energy Infrastructure”Needs and challenges, supply and demand; coastal populations, ecosystems, and natural disasters;do environmental laws (CWA, NEPA, ESA, wetlands, CZMA, CAA) provide the environmental andecosystem protection that society seeks? Federal/state relationships in energy infrastructuredecisions; environmental justice; the range of infrastructure problems: refineries, liquefied natural gasoffloading facilities, energy transport (pipelines, railroads, roads, ships), the electric grid, drinkingwater supplies, and sewage disposal.

Moderator: R. Kinnan Golemon, Brown, McCarroll, LLP, Austin, TX

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Speakers: Robert Slaughter, President, National Petrochemical and Refiners Association,Washington, DC; Karl R. Rábago, Director, Clean and Renewable Energy Group, HoustonAdvanced Research Center, The Woodlands, TX; additional panelist tba

· 12:45 - 2:00 pm: Lunch (Krongard Room and Main Floor Courtyard)

Ceremonial Moot Court Room, Main FloorLuncheon Keynote Address: “Ecosystem Services, Sustainable Development, andEconomics: A Millennium Environmental Assessment Perspective,” speaker tba

· 2:00 - 3:30 pm: “Ecosystems, Infrastructure, and Risk”How is risk evaluated, accounted for, and allocated? Who bears the risk, who enjoys the benefits, andare these commensurate? Who evaluates, and how? Does the law put its thumb on the scale viasubsidies and regulatory barriers? What are the proper roles of private market insurance, publicinsurance, subsidies, and tax policy? How does this panoply affect transactional and investmentdecisions?

Moderator: Robert L. Brubaker, Porter Wright Morris & Arthur LLP, Columbus, OH

Speakers: Peter Steenland, Counsel, Sidley Austin Brown & Wood LLP, Washington, DC; Barry E.Hill, Director, Office of Environmental Justice, U.S. Environmental Protection Agency, Washington,DC; David Conrad, Senior Water Resources Policy Specialist, National Wildlife Federation,Washington, DC

· 3:30 - 3:45 pm: Networking Break

· 3:45 - 5:00 pm: “Thinking Outside the Box: Strengthening our Energy Infrastructure byEnhancing and Using Ecosystems Services”Sustainable development; the power of markets; new laws and new approaches; how can weappropriately value ecosystems and incorporate that value into infrastructure decision making? Theuse of law to harness the value of ecosystem services. How can law and society reconceive a city?

Moderator: David R. Hodas, Professor, Widener University School of Law, Wilmington, DE

Invited Commentators: Robert Costanza, Director, Gund Institute of Ecological Economics, Schoolof Natural Resources, University of Vermont, Burlington, VT; Daniel A. Farber, Sho Sato Professorof Law and Director, Environmental Law Program, University of California School of Law, Berkeley,CA; Motoko Aizawa, International Finance Corporation, Washington DC (invited)

· 5:00 pm: Closing Remarks

· 5:30 pm: CONFERENCE RECEPTION (Krongard Room)

_______________________

FOR FINAL DETAILS AND TO REGISTER, IN THE COMING WEEKS PLEASE CHECK http://www.abanet.org/publicserv/environmental or contact Mary Jordan Mullinax at 202-662-1694,[email protected] for information or to receive a printed brochure.

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