Presentation Transcript

1. ENVIRONMENTAL FEDERALISMJohn Echeverria Professor Vermont Law School Myanmar Environmental Governance Program November 2013
2. Topics Our Shared Climate Crisis Domestic Environmental Regulation, with emphasis on possibly useful models provided by U.S. experience with environmental federalism. International Investor-State Agreements
3. Shared Climate Crisis
4. Shared Climate Crisis IPCC Fifth Assessment Report in progress: Four Reports Due in 2013 and 2014 Climate Change 2013: the Physical Science Basis,released September 2013 Leaked Version of draft of Climate Change 2014: Impacts, Adaptation and Vulnerability
5. Shared Climate Crisis Climate Change 2013: the Physical Science Basis,officially released September 2013 “Global surface temperature change for the end of the 21st century is projected to be likely to exceed 1.5°C relative to 1850 to 1900 in all but the lowest scenario considered, and likely to exceed 2°C for the two high scenarios,” said Co-Chair Thomas Stocker. “Heat waves are very likely to occur more frequently and last longer. As the Earth warms, we expect to see currently wet regions receiving more rainfall, and dry regions receiving less, although there will be exceptions,” he added.
6. Shared Climate Crisis “As the ocean warms, and glaciers and ice sheets reduce, global mean sea level will continue to rise, but at a faster rate than we have experienced over the past 40 years,” said Co-Chair Qin Dahe. The report finds with high confidence that ocean warming dominates the increase in energy stored in the climate system, accounting for more than 90% of the energy accumulated between 1971 and 2010. Source: IPCC Press Release
7. Hurricane Sandy -- NYC
8. Changes in Distribution of Biota
9. Shared Climate Crisis Climate Change 2014: Impacts, Adaptation and Vulnerability Climate change willreduce renewable surface water and groundwater resources significantly in most dry subtropical regions, exacerbating competition for water among sectors A large fraction of terrestrial and freshwater species faces increased extinction risk under projected climate change during and beyond the 21st century, especially as climate change interacts with other pressures, such as habitat modification, over-exploitation, pollution, and invasive species Due to sea-level rise throughout the 21st century and beyond, coastal systems and low-lying areas will increasingly experience adverse impacts such as submergence, coastal flooding, and coastal erosion By 2100, due to climate change and development patterns and without adaptation, hundreds of millions of people will be affected by coastal flooding and displaced due to land loss.
10. Shared Climate Crisis Ocean acidification poses risks to ecosystems, especially polar ecosystems and coral reefs, associated with impacts on the physiology, behavior, and population dynamics of individual species Without adaptation, local temperature increases of 1°C or more above preindustrial levels are projected to negatively impact yields for the major crops (wheat, rice, and maize) in tropical and temperate regions, although individual locations may benefit Heat stress, extreme precipitation, inland and coastal flooding, and drought and water scarcity pose risks in urban areas for people, assets, economies, and ecosystems, with risks amplified for those lacking essential infrastructure and services or living in exposed areas Major future rural impacts will be felt in the near-term and beyond through impacts on water supply, food security, and agricultural incomes, including shifts in production of food and non-food crops in many areas of the world
11. Shared Climate Crisis Water supply, food security, and agricultural incomes, including shifts in production of food and non-food crops in many areas of the world Global mean temperature increase of 2.5°C above preindustrial levels may lead to global aggregate economic losses between 0.2 and 2.0% of income Until mid-century, climate change will impact human health mainly by exacerbating health problems that already exist (very high confidence), and climate change throughout the 21st century will lead to increases in ill-health in many regions, as compared to a baseline without climate change Climate change indirectly increases risks from violent conflict in the form of civil war, inter-group violence, and violent protests by exacerbating well-established drivers of these conflicts such as poverty and economic shocks Throughout the 21st century, climate change impacts will slow down economic growth and poverty reduction, further erode food security, and trigger new poverty traps, the latter particularly in urban areas and emerging hotspots of hunger. Source Common Dreams November 2, 2013
12. Shared Climate Crisis Headlines: Emerging Crisis in Food Availability/Affordability “On the food supply, the new report finds [...] that over all, global warming could reduce agricultural production by as much as 2 percent each decade for the rest of this century.” During that period, demand is expected to rise as much as 14 percent each decade, the report found, as the world population is projected to grow to 9.6 billion in 2050, from 7.2 billion today, according to the United Nations, and as many of those people in developing countries acquire the money to eat richer diets.” N Y Times, 11/1/2013
13. Climate Effects in Myanmar Changes in Precipitation Patterns -- ? Changes in River Flows -- ? Changes in Agricultural Production -- ? Changes in Forest Cover and Composition -- ? Coastal Flooding -- ? -- Yangon ranked # 8 in ranking of major cities most exposed to risk of coastal flooding
14. Climate Effects in Myanmar
15. Climate as a Threat Multiplier -- Environmental Threats and Challenges in Myanmar (and the World) Already Severe. -- Climate Change Will Magnify the Challenge of Addressing Environmental Problems: -- By directly affecting the environment. -- And by affecting the capacity of political and social institutions to address climate change. -- The urgent need for joint international action to address climate mitigation has not been met.
16. Climate Protection Status -- Modest Progress on Mitigation in U.S. -- Fuel Efficiency Standards -- New U.S. EPA Power Plant Rules -- Failure of Comprehensive Legislation -- Little International Progress on Mitigation -- Adaptation: -- an unavoidable necessity -- not a solution
17. Domestic Environmental Protection System Environmental Protection is a Big Challenge for Democratic Governments. The Problem of Public Choice:
18. Domestic Environmental Protection System -- Legislative enactment of authorizing legislation. -- Administrative agency implementation. -- Stakeholder participation in rulemaking, application review, and enforcement. -- Judicial role in resolving conflicts over and enforcing environmental law
19. Domestic Environmental Protection Tools Possible citizen roles: -- input into legislative process -- participation in notice and comment process for new rules -- commenting on project applications -- commenting on project EA’s -- monitoring of environmental conditions -- complaints/petitions to administrative agencies -- “citizen suits” in court
20. Domestic Environmental Protection Tools
21. Domestic Environmental Protection Tools CWA, 33 U.S.C. 1365: “any citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. ESA, 16 U.S.C. 1640 (g): “any person may commence a civil suit on his own behalf— (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof”
22. Domestic Environmental Protection Tools Environmental Federalism
23. Domestic Environmental Protection Tools U. S. approach of “cooperative federalism” in implementing and enforcing environmental laws might provide a potentially useful model for Myanmar.
24. 50 U.S. States
25. U.S. Indian Tribes
26. State Delegation Clean Water Act -- States/Tribes can apply to U.S. EPA for delegated authority to administer permitting programs. -- § 402 NPDES pollution permitting -- § 404 wetlands development permitting -- EPA periodically reviews state water standards. -- EPA periodically reviews state programs. -- individual state permitting actions subject to review by EPA.
27. State Delegation Clean Air Act -- To continue to receive federal transportation funds, states must prepare “State Implementation Plans” (SIP’s), and obtain approval of SIP’s by U.S. EPA -- Tribes can apply to U.S. EPA for delegated authority to administer CAA. -- Tribes must prepare “Tribal Implementation Plans” (TIP’s), and obtain approval from EPA -- Delegation can involve all or part of CAA regulatory responsibilities -- Individual State and Tribal permitting actions subject to review by U.S EPA
28. Policy Arguments re Delegation Pro: -- local officials have greater local knowledge -- local officials can be more responsive to local community objectives -- local officials can adapt regulations to local conditions -- local officials may be more accessible to local community members
29. Policy Arguments re Delegation Con: -- potential lack of adequate technical expertise -- potential bias in favor of development and against environmental protection (so-called “race to the bottom” issue) Relevance of these - and other matters (?) - to environmental federalism in Myanmar?
30. International Investment treaties -- Potential constraint on implementation of existing environmental regulations, and adoption and enforcement of new environmental regulations, by any and all levels (national as well as states or divisions) and by any and all branches of government, including the judiciary. -- Investor protection is a form of parallel, quasi-constitutional protection for new rights conferred exclusively on foreign investors.
31. INTERNATIONAL INVESTMENT TREATIES Current constitution of the Union of the Republic of Myanmar includes: --the structural constitution What Institutions? What responsibilities? What powers? What limits? -- individual citizen “rights and duties”
32. INTERNATIONAL INVESTMENT TREATIES Myanmar constitutional provisions Section 372: “The Union guarantees the right to ownership, the use of property and the right to private invention and patent in the conducting of business if it is not contrary to the provisions of this Constitution and the existing laws.” Section 390: “Every citizen has the duty to assist the Union in carrying out the following matters : (a) preservation and safeguarding of cultural heritage; (b) environmental conservation; (c) striving for development of human resources; (d) protection and preservation of public property.”
33. International Investment Treaties E.g. NAFTA ARTICLE 1110: No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law and Article 1105(1); and (d) on payment of compensation in accordance with paragraphs 2 through 6.
34. Investor- State Process Mandatory, quasi-judicial enforcement of investor-state protections by ad hoc, 3-person arbitration panels Questions about degree of independence Questions about pro-investor bias Result in money judgments potentially enforceable anywhere in the world Process exclusively available to foreign companies, not citizens and companies of Myanmar Investor -state protections are likely to be interpreted more expansively than parallel domestic rights
35. Metalclad Case Environmental regulatory decisions can be ‘tantamount’ to expropriation Metalclad v. Mexico(2000) Metalclad bought a site in the city of Guadalcazar for a toxic waste landfill facility National government issued necessary permits but local officials denied local land use authorizations, citing concerns about threats to drinking water ICSID arbitration panel ultimately awarded 15.6 million (U.S.) on the theory that the local government action constituted an “expropriation “of private property.
36. Large Volume of Investor-State Litigation “Countries face an increasing number of arbitration claims initiated by foreign investors under international investment treaties. In 2012 alone, at least 58 investment treaty-based arbitrations were filed—the largest number of known cases in a single year.These often involve claims for tens, if not hundreds, of millions of dollars in damages. Last year, Ecuador was ordered to pay a record US$1.77 billion in damages to an American oil company in a single arbitration decision. The arbitrations also frequently center on sensitive areas of public policy, including environmental protection in mining and other sectors, public health, and taxation policies.” Source: IISD News, November 3, 2013
37. Implications of International Investment Treaties Risk of conferring greater rights on foreign investors than are possessed by citizens and companies in Myanmar. Risk of subtraction from established sovereignpowers (whether exercised by national government or delegated) International arbitration awards or mere threat of such awards may chill adoption and enforcement of environmental protections
38. options for Preserving Policy Sovereignty Against I-S Disputes Exclude investor-state dispute resolution mechanisms Current Australia position Australia-US Trade Agreement excludes investor-state dispute process Carve out exception for environmental protections -- from all regimes or perhaps some regimes (e.g. expropriation) Public declaration of intent to reform environmental laws Sends message to investors – provides certainty Could remove legal arguments about “expectations”
39. Thank you Questions?