Does the Radiation from Japan Violate International Law When It Crosses International Boundaries?

by John Knox | March 22, 2011

Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.”  Does that mean that the transboundary radiation has put Japan in violation of international law? 

In a word, No.

Although the quoted language, from the 1992 Rio Declaration, sounds as if any transboundary damage would violate international law, almost no one interprets the prevention principle so strictly. To be an obligation under customary international law, the principle would have to reflect states’ customary practice, and states don’t prevent all transboundary pollution. Last year, in a case between Argentina and Uruguay, the International Court of Justice characterized the principle this way: “A State is . . . obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”  

So the ICJ believes that a state is only required to prevent “significant” transboundary harm. That seems more likely to reflect state practice, although you might question whether states comply even with this lower standard, given the amount of transboundary pollution that still occurs. If the ICJ is right, Japan hasn’t ...

Separating the Natural and Environmental Disasters in Japan

by Rebecca Bratspies | March 21, 2011
The twin natural disasters that struck Japan this month, earthquake and tsunami, left a trail of devastation in their path. Entire villages were lost. The death toll currently stands at more than 8,000 but is expected to rise much higher (more than 13,000 are missing). Even as survivors struggle for shelter, warmth and food, the natural disasters are being rapidly overshadowed by the unfolding nuclear disaster at the Fukushima Daiichi Nuclear Power Station. The key difference is that the nuclear disaster didn’t ...

CAFOs, Circularity and Certainty in the CWA: Fifth Circuit's Decision in National Pork Producers Council v. EPA Raises Problems

by Robert Adler | March 18, 2011
A decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA’s Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or “CAFOs”. In National Pork Producers Council, et al. v. United States Environmental Protection Agency, the Fifth Circuit panel vacated those portions of EPA’s rule that required CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based ...

A Regulatory Czar in the Imperial Tradition: A Look at the Snowe-Coburn Small Business Regulatory Freedom Act

by Rena Steinzor | March 17, 2011
Who’s the most powerful person in the Executive Branch these days, other than the President, the Vice President, their chiefs of staff, and—on any given day—the Secretaries of Defense or State?   If odd Senate bedfellows Olympia Snowe (R-ME) and Tom Coburn (R-OK) have their way, the new, genuinely imperial regulatory czar will be one Dr. Winslow Sargeant, chief counsel for advocacy for the Small Business Administration (SBA). Under a plan these two have concocted (and are even trying to include as ...

Thousands of Babies Clapping: Lisa Jackson Brings Mercury Home

by Rena Steinzor | March 16, 2011
My bet is that EPA Administrator Lisa Jackson will do a little victory dance in her office before going home this evening. She’s earned it. After 20 years of false starts, EPA is issuing today the first proposed rule to control poisonous mercury emissions from power plants. They’re doing it despite a concerted blast of coal company and electric utility lobbying at the upper levels of the White House. Jackson’s achievement is testimony to her exemplary leadership of EPA in ...

As House Agriculture Committee Takes on the Chesapeake Bay Restoration, EPA Has the Law on Its Side

by Rena Steinzor | March 16, 2011
This morning a House Agriculture subcommittee will hold a hearing to "review the Chesapeake Bay TMDL, agricultural conservation practices, and their implications on national watersheds." Observers should be prepared for a trip to an alternate world. The Chesapeake Bay has suffered for decades now because of nitrogen, phosphorous, and sediment pollution. Once-abundant fish, blue crab, and oyster populations plummeted, and local economies built around them have paid the price. Repeated state pledges to reduce the pollution and restore the Bay ...

Costs of Inaction: Popular Climate Econ Model Needs Major Overhaul

by Frank Ackerman | March 15, 2011
Cross-posted from Real Climate Economics. True or false: Risks of a climate catastrophe can be ignored, even as temperatures rise? The economic impact of climate change is no greater than the increased cost of air conditioning in a warmer future? The ideal temperature for agriculture could be 17 degrees C above historical levels? All true, according to the increasingly popular FUND model of climate economics. It is one of three models used by the federal government’s Interagency Working Group to ...

The Chamber Rides Again: Crazy Costs, Mythical Benefits

by Rena Steinzor | March 11, 2011
Not to be outdone by the Small Business Administration’s aptly named Office of Advocacy, the Chamber of Commerce has issued its own breathless report on how many jobs we could save if we did away with environmental, land use, and utility regulations. Crunching a bunch of dubious numbers, the SBA Office of Advocacy’s consultants, Nicole and Mark Crain, claim that regulations cost $1.75 trillion a year, a number several of my CPR colleagues thoroughly debunked in a report issued in ...

In Coming Utility MACT, EPA Has Clean Air Act Authority to Make Big Strides in Protecting Americans from Mercury Pollution

by Catherine O'Neill | March 11, 2011
By Wednesday of next week, EPA is due to publish its long-anticipated rule controlling mercury emissions from coal-fired utilities.  This is how we ought to judge the rule: does it follow the mandate of the Clean Air Act (CAA)? For too long, utilities have managed by various means to fend off regulation required by the CAA. Assuming EPA’s rule at long last complies with Congress’s directives, Americans may look forward to a day when they can again eat fish without serving their families ...

The BP Oil Spill: Hollow Regulation Meets Hobbled Law

by Sidney Shapiro | March 11, 2011
This coming April 20 will mark the one-year anniversary of the first day of the BP Oil Spill – a three-month polluta-polluza that eventually became the largest accidental marine oil spill in the history of the world. That was the night that a long series of failures finally came to a head: failures aboard the Deepwater Horizon by BP and its contractors, failures in the enforcement of regulations intended to prevent such disasters or at least limit the damage from them, ...

Adler Op-Ed: Utah Working to Shut the Door to Citizen Involvement in Environmental Decisions

by Ben Somberg | March 09, 2011
CPR Member Scholar Robert Adler has an op-ed in the Salt Lake Tribune looking at a series of developments in Utah -- administrative actions as well as pending legislation -- that could hinder citizen engagement in environmental decisions. The context, write Adler, is this: Whether or not one agrees that Tim DeChristopher was legally or morally justified in his civil disobedience as “bidder 70” in Bureau of Land Management oil and gas leases, virtually everyone asks why he did it. ...

EPA Appears Poised To Give Troubling Role to Cost-Benefit Analysis In Setting Rules on Power Plant Cooling Water

by Amy Sinden | March 04, 2011
When it comes to the use of cost-benefit analysis in setting environmental rules, it looks like President Obama's EPA has taken a big swig of industry’s Kool-Aid. We'll know for sure soon: The EPA has a March 14 deadline to issue its proposed Clean Water Act rule on cooling water intake structures at existing power plants and other facilities. But all signs seem to be pointing toward a highly formalized cost-benefit analysis resulting in a weak rule – and a ...

Press Examine Historical Evidence on the Costs of Regulation

by Ben Somberg | March 04, 2011
Industry representatives have long made exorbitant claims about the costs of regulations, only to be proven wrong again and again. And despite that history, anti-regulatory campaigners repeat the scariest statistics their own experts come up with, even if those statistics were meant to include a range of possible outcomes, or included caveats of uncertainty. An important batch of articles this week dug into these issues. Here are some of the highlights: Associated Press: Yet in testimony before House committees now ...

Michele Bachmann's Unconstitutional Light-Bulb Bill

by Daniel Farber | March 03, 2011
Cross-posted from Legal Planet. Michele Bachmann has introduced legislation to overturn the statute requiring the use of energy-efficient light bulbs, according to E&E News.  One  feature of the bill is its escape valve: Bachmann’s bill would allow the mandate to stand if the Government Accountability Office can prove the energy efficient bulbs would meet three criteria: that they provide real cost savings for consumers, significantly reduce carbon dioxide emissions and do not produce health risks for consumers. . . “Frankly, ...

EPA's New Boiler Rule Will Deliver Reduced -- But Still Huge -- Health Benefits

by Catherine O'Neill | February 24, 2011
This post was written by CPR Member Scholar Catherine O'Neill and Communications Specialist Ben Somberg. The announcement from EPA Wednesday creating final standards for pollution from industrial boilers is being described by the press as “scale[d] back,” and “half the cost of an earlier proposal.” Those things are true, but the new regulation is no small matter. It will have a significant and positive effect on the health of people across the country and beyond. Says the Sierra Club: "Though the ...

Williamson v. Mazda: Sound and Clear Preemption Decision

by William Buzbee | February 23, 2011
The Supreme Court today issued its much-awaited ruling in Williamson v. Mazda. Could an injured or deceased plaintiff sue under common law for damages allegedly attributable to the lack of a rear inner seat seatbelt, when the Department of Transportation (DOT) had declined to require such belts while requiring other seat belts?   The case on its face appeared much like the Court’s earlier Geier v. American Honda Motor Co decision, issued in 2000, in which the Court held that a common ...

Supreme Court Won't Hear Critical Habitat Cases

by Holly Doremus | February 23, 2011
Cross-posted from Legal Planet. The Supreme Court on Tuesday denied certiorari on two Endangered Species Act cases, Arizona Cattle Growers Association v. Salazar and Home Builders Association of Northern California v. US Fish and Wildlife Service. The cases were considered together because they raise the same issue: how the economic impacts of critical habitat designation should be calculated. Development and extraction interests hoped the Court would use the cases to force the U.S. to take a broader view of those ...

Cleanup Worker Safety Planning Must Not Get Forgotten in Fallout from BP Spill

by Matt Shudtz | February 22, 2011
Lizzie Grossman has a nice post over at The Pump Handle highlighting how the National Contingency Plan for major oil spills has significant gaps, which left government agencies and cleanup workers in the Gulf scrambling to figure out the right training programs and the best ways to protect workers' health and safety in the days, weeks, and months following the BP spill. But, as Lizzie points out, one of the most powerful advocates for fixing the NCP -- the National ...

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