Former EPA General Counsel Scott Fulton to Serve as Next President of Environmental Law Institute

http://www.eli.org/news/former-epa-general-counsel-scott-fulton-serve-next-president-environmental-law-institute

Encyclical Released

The Papal Encyclical on the Environment and Climate Change was released today, as expected.
 http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html

A quick perusal indicates that it is pretty much the same as the leaked draft.  Chapter 5 discusses international environmental law and governance extensively, generally mentioning the 2012 Rio+20 Conference (para. 169) and praising the 1992 Rio Declaration (para. 167) as well as three international environmental agreements (para. 168)-- the 1989 Basel Convention on Hazardous Wastes, 1972 CITES, and the 1985 Vienna Convention on the Ozone Layer.  As noted, it also discusses two key environmental governance principles and their importance to government transparency and engagement of civil society: the duty to conduct environmental impact assessments and the precautionary principle.  It also references the need for enforceable environmental agreements (para. 173), certainly an important weak ingredient in international environmental law.

One thing that I didn't catch in my first reading was the significant emphasis on national environmental governance in the "Dialogue on National and Local Policies," especially the importance of the rule of law and good governance (para. 177) and reference to the growing jurisprudence of pollution law.  The listing of factors that must be considered in designing systems to protect the environment ("foresight and security, regulatory norms, timely enforcement, the elimination of corruption, effective responses to undesired side-effects of production processes, and appropriate intervention where potential or uncertain risks are involved") included considerations that have also been considered by others to be critical to effective environmental governance.

It's also been pointed out to me that the Encyclical denounces carbon trading as a form of speculation and avoidance of commitment to curbing excessive consumption (para. 171).  Strictly viewed, such wholesale condemnation seems to go overboard since pollution allowance trading schemes have proven themselves, not only in the US acid rain (SO2 trading) program but also in the context of the Montreal Protocol agreements regarding ozone layer protection (which allowed for the trading of ozone-depleting substances allowances, though they were supposed to be reduced and eventually eliminated).   And of course, carbon trading is a critical element of California's cutting-edge effort to reduce its state-wide carbon emissions.  On the other hand, many international and national schemes to trade carbon credits have been of dubious value, primarily because program/market design didn't actually ensure that there were "real" reductions in carbon emission and because there are oftentimes no effective accountability mechanisms to ensure the integrity of those system.  From that "real-world" perspective (based on how many carbon markets have operated in practice), the Encyclical's characterization is arguably spot-on and reflects the views of many critics of carbon trading.

The Papal Encyclical Letter on the Environment

Pope Francis' encyclical on the environment is scheduled for official public release tomorrow, Thursday, June 18. However, a leaked draft has already made its way around the web, and somebody shared it with me.  (I guess many Catholics, including at Santa Clara University, have been awaiting it eagerly.)

If the final version doesn't change much from the draft, it will be a very expansive perspective on the relationship of humans to the environment and climate change.  Interestingly, chapter 5 discusses international environmental law and governance extensively.  The chapter touches on the 1992 Rio Declaration (para. 167) , the 2012 Rio+20 Conference (para. 169) and three international environmental agreements (para. 168)-- the 1989 Basel Convention on Hazardous Wastes, 1972 CITES, and the 1985 Vienna Convention on the Ozone Layer.  It also discusses at some length two key environmental governance principles and their importance to government transparency and engagement of civil society: the duty to conduct environmental impact assessments and the precautionary principle.

Most remarkable,  however, is the encyclical's critique of the effectiveness of international environmental law and treaties generally, especially failings of enforceability (para.173).  The document recognizes how critical the rule of law is to protecting the environment and that good governance in national systems is indispensable to that endeavor.

Based on a quick perusal of the encyclical, virtually all of these positions and perspectives appear to be squarely within the mainstream of what experts in the field, both scientists as well as experts on law and governance, think about the environmental issues and associated governance matters.  It is thus surprising to me that some media outlets have described the encyclical as potentially very controversial.  However, we will see soon how the public reacts to  all of this.