Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

Cuba Delegation Blog 2: Notes from Our Informal Meetings

Posted on October 10, 2016 by David B. Farer

Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba.  I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there.  We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.

One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life.  Most, though, expressed optimism for the future of their country.

You may find some of the notes below inconsistent or contradictory.  I think that’s reflective of the differing viewpoints and experiences to which we were exposed.

Sept 7, 2016:  Meeting with Political Scientist /Publisher/Editor

•    Cuba in transition; you are here at a special time

•    Changes had already occurred before December 2014; more changes since then, and more to come

•    Electoral system:  Citizens vote for representatives to the  National  Assembly/ Assembly chooses President and Vice President

•    Raul Castro has committed to step down in 2018

•    Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro

•    Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers

•    Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals

•    In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.

•    Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.

•    The outside perception of Cuba may be that Cubans have the least available access to world views through the internet.  However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.

•    Human rights issues remain, including prohibition on founding political parties

•    Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.

  • This year: expecting the total to be more than 500,000

•    Key issues for updating the Cuban socialist model:

  • Have to confront increased social inequality & poverty
  • About 20% suffering from poverty; 4 times more than 20 years ago
  • Yet others are achieving higher overall income with salary plus additional sources of income.  Income differential and poverty must be dealt with.
  • Severe housing shortage is a critical problem.
  • Housing in bad condition/ and housing shortage
  • Super centralization as a defensive posture
  • Overextended bureaucracy
  • Water supply/ energy supply problems
  • 20% of Cubans are over 60; by 2025, that will be up to 25% 
    • Life expectancy is about 80 years
    • Population growth rate = -1.5%
    • Birth rate has been low since early 70s
  • Surge of migration.  65% more than the year before.  Up by 45,000 this year.
  • Media:  all media is currently government media
  • Inconsistent economic system 
  • High dependency on imports
  • Low domestic food production and industrial output

•    Last of the key issues/problems:  U.S. policy toward Cuba

  • Negative impact of embargo
  • Fortress mentality
  • Travel restrictions for U.S. citizens

•    Cuban culture is closer to American culture than that of any other country in the region

Sept 7, 2016:  Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science

•    The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).

•    Among other things, it manages protected areas in Cuba.

•    Foundation has collaborated with foundations/NGOs  in U.S., and there have been visits back and forth

•    Biggest problem is that the embargo gets in the way of funding from U.S. institutions

•    Over 50 international cooperative projects over the past 21 years

•    Goal of conservation of Cuban biodiversity and geographical diversity             

•    Problems:  invasive species/ pollution/ climate change/mining   

•    Existing environmental legal framework:

  • National environmental policies, strategies and legislation
  • Article 27 of the Constitution on protecting environment
  • Law number 81:  Approved 1997

•    Cuba has entered three treaties/conventions:  on bio diversity, climate change, and drought.

•    Most important current issues are seen as:

  • Soil degradation
  • Loss of biodiversity
  • Damage to forest cover and lack of water
  • Climate change vulnerability

•    Where does Cuba go from here?  Varying views expressed:

  • Process of last 60 years for environment has been good/big question is how to preserve going forward as things change     
  • Having to redefine behavior and economy
  • Problem of dealing with laws on the books that reflect a former reality
  • We are a country rich in spirit and ideas, but we are poor in our economy
  • How to organize the economy?
  • Challenge:  don't take the same directions that others took 100 years ago
  • Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
  • Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
  • Right now it is reactive, not preventive.

•    General discussion among them:

  • Need to access financing and technology to protect the environment and human settlements 
  • Existing law based on national/fed strategy and structure.  No local structure. 
  • No legal framework to determine the information you need and which set of regulations applies.   There can be conflicting regulations from one ministry to another.  This needs to be combined and systemized.
  • No unity on legislation, on what it means; you get lost looking for information.
  • Same on pollution controls:  different regulations from different ministries.  Cleanup standards as example:  One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
  • Implementing ministry does not itself have the power to enforce.  Other institutions may have power to enforce.  So there is an issue on means of enforcement.
  • Current law already has a way to incentivize local application of laws or enforcement  of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring

Sept 7, 2016:  Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)

•    The official worked at CITMA until she retired in 2014.  Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.

•    Overview of environmental law in Cuba:

  • Until 1990, done empirically
  • But after 1990, determined to be in interest of the  state and the agency to control environmental issues
  • Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
  • Continues under Ministry of Science
  • Within the Ministry, there is an Agency on the Environment
  • There are several other institutions within the environmental agency.
  • Local administrations propose areas to protect: geographic areas/not topics
  • The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
  • Ministry works together with local government
  • When a company wants to work in one of these areas, it has to pass consideration by  a commission that considers what company wants to do
  • Ministry of Science issues permits to companies to work in these areas.
  • Ministry's model for development requires compliance with permits:  risk, air quality etc. within one permit roof
  • Ministry follows UNESCO standards for protection of biosphere
  • Other ministries also have an interest:  geographical and others including tourism
  • Other involved institutions:  Ministries of Mining, Energy, Tourism, for example, depending on project.

Sept 9, 2016:  Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment

•    They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better

•    But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments

•    Since 1992, Cuba has been on path to amend laws to meet international commitments

  • As a result of those commitments, have to revamp institutions:
  • Such as sustainable development
  • But need a clearer legal framework to make it work better

•    Biggest problem here has been adaptation, as opposed to remediation

•    But now:  a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this

•    Per the Paris Accord, we have to deal with adaptation as well as mitigation

•    Have to regulate technology to regulate environment

•    Should look to integrate all of the different laws

  • Right now, each agency issues its own regulations
  • Would be good to integrate and facilitate within one unit       

•    Specific focus could be to introduce a legal framework for  the verification of  remediation, mitigation and adaptation.

•    Currently, each ministry issues resolutions:  their own general determinations to be followed

•    Vertical governmental structure:

  • Municipal/provincial/ national
  • Local decisions cannot contradict national or provincial decisions
  • They don't have equivalent of state legislation

•    CITMA decisions have to be observed all over the country

•    Each province also has experts in each area, representing the Ministry in the region

•    Same at municipal level

•    There are civil and criminal penalties in the current environmental laws

•    The environmental laws are meant to be preventative but there have been sanctions

•    Ministry of Justice tends to have all fines and sanctions in one single act.   And they do find efficiencies here, having fines and sanctions centralized within one act.

•    There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments

•    Almost everything needs an environmental license of some degree:  Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical

•    Mariel Port district being dealt with very firmly and strictly

•    There are municipal/ provincial/national courts, including specialty courts like the environmental court

Cuba Delegation Part 1: Havana Calling – The College’s New Initiative for Pro Bono Work in Cuba

Posted on October 5, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

Havana Calling: The College’s New Initiative for Pro Bono Work in Cuba

Posted on September 28, 2016 by James Bruen

On September 10, 2016,  a delegation from the College returned from four days of informal meetings in Havana. These meetings laid the groundwork for further discussions with Cuban environmental organizations and environmental governmental agencies about the potential for pro bono projects in Cuba. This self-funded trip was the result of almost two years of research, U.S. governmental interactions, and planning. The delegation – including David Farer, Mary Ellen Ternes, Eileen Millett and me – found the island enchanting, its people charming, and its environment in need of help. With this blog, we begin a series of reports conveying our optimism and enthusiasm about a path towards College fellows being able to engage in potential environmental projects in Cuba.

On December 17, 2014, President Obama announced that he was rejecting the country’s Cold War-era policy towards Cuba in order to chart a new course with that country. In early January 2015, College President Pam Giblin and her fellow officers approved the initiation of the Education and Pro Bono Committee’s informal investigation and research into whether it was legal and practical to consider approaching Cuban environmental organizations and governmental agencies (potential “Sponsors”) with offers of pro bono environmental assistance. Within a year, the initial solo effort morphed into the Cuba Working Group. Throughout the ensuing year, Allan Gates, David Farer, Dennis Krumholz, Bob Whetzel, Linda Bullen, Seth Jaffe, Bob Percival, Mary Ellen Ternes, Eileen Millett, yours truly, and many others walked the College step-by-step through contacting various federal agencies for permission to approach organizations and agencies in Cuba. After filing a complex application, we successfully obtained an Office of Foreign Assets Control File Number. Throughout this trek, U.S. government regulations and practices continued to be a moving target, but they became more relaxed by the month.  

After patient persistence, the College delegation was able to embark on the September 2016 trip planned by Eileen Millett and her nominated travel company, Cuban Cultural Travel. Eileen and CCT did a marvelous job. The delegation took a 45-minute air shuttle and arrived in Havana on Tuesday, September 6. We were briefed by the legal affairs officer at the U.S. Embassy. We proceeded with informal meetings with the editor of TEMA, a Cuban cultural affairs journal; with a Cuban foreign participation/investment expert; with a Cuban health care expert; with a Cuban environmental NGO (Foundacion Antonio Nunez Jiminez de la Naturaleza y Hombre); and with individuals directly and indirectly connected to the Ministerio de Ciencia, Tecnologia y Medio Ambiente (CITMA), the Cuban ministry focused on the environment. We might have listened to some Cuban music, seen some Cuban dancing and sipped some Cuban rum along the way, but – believe me – we were “all business.” The meetings with our Cuban contacts generally opened with cautious curiosity, but they concluded with expressions that ranged from mild interest to enthusiastic support. The delegation is cautiously optimistic that these initial discussions and further exchanges of information will lead to a Memorandum of Understanding and subsequent projects throughout the island.

Within the week, the College will send formal expressions of interest to 7 individuals who are either connected to the environmental NGO or CITMA. We will include a draft MOU which could be approved by both the Cuban Sponsor and the College’s Executive Committee. Attached are links to exemplars of the letter and MOU.  

If an MOU is mutually executed, we will promptly ask the Cuban Sponsor to provide the College with a list of potential environmental projects in Cuba. We will circulate the list to all Fellows in the College. We will ask that interested Fellows submit their current curricula vitae to me as Chair of the Cuba Working Group of the Education and Pro Bono Committee. I will send them on to the Cuban Sponsor. The Cuban Sponsor will select the Fellow or Fellows it wishes to work with. The Cuba Working Group will place the Sponsor in touch with the selected Fellow(s). The ensuing engagement will be between the individual selected Fellow(s) and the Sponsor. The College will not be a party because it does not practice law.

The MOU will provide that generally all work done by College Fellows will be done free of charge. But, if the Sponsor requests or approves travel to Cuba, the Sponsor will pay coach round trip air fare and all reasonable out-of-pocket travel expenses.

You will see in subsequent blog posts from David, Mary Ellen, and Eileen, that our delegates had the time of their lives in Havana. The establishment and execution of international pro bono work is one of the great benefits of Fellowship in the American College of Environmental Lawyers. Whether you are interested in China, Haiti, Eastern and Southern Africa or Cuba, please let us know and send us your expressions of interest when we post our Sponsors’ lists of projects. I can assure you that Eileen, Mary Ellen, David, and I can hardly wait for our next assignment. 

The ACOEL “China Project” - Speaking Opportunity in Xian, China

Posted on July 30, 2015 by James Bruen

The College’s International Pro Bono “China Project” reports a very interesting speaking opportunity in Xian, China.

            1.         Speaking at the All China Lawyers’ Association Annual Training Conference

            This speaking opportunity will be for one Fellow to address the All-China Lawyers Association’s annual training session. ACLA is the official professional association for lawyers (the rough equivalent of the American Bar Association) of the People's Republic of China. It was founded in July 1986. All lawyers of China are members of ACLA. 

            ACLA Director Zhou Saijun reports that the national lawyer training has been scheduled on October 17 and 18, in Xian. These dates conflict with the ACOEL annual meeting in New York, but we have no ability to change the date. On the other hand, we have spoken with officers of the ACOEL and they agree that the opportunity is for just one Fellow, so overall attendance at the annual meeting will not be materially affected.  The involved Fellow would accept this opportunity with the College’s full endorsement.

ACLA Director Saijun will forward the detailed agenda for the ACLA conference when the eventually complete it. But, as usual, they hope that the

“…. ACOEL speaker could introduce general US attorney system, environmental law and regulations, as well as how lawyer can play important role in the field of environment, energy and resource law. The topics for this annual training focus on lawyer’s role on oversea investment (relevant to Chinese international development strategy called one road one belt ), on enforcement of environmental law and how lawyer can serve PPP, etc.”.

As usual, we will ask ACLA/NRDC to confirm that they will reimburse the speaker for round trip coach airfare and other reasonable travel expenses. We imagine that the speaker may wish to extend his/her trip a day or more to see Xian’s famous terracotta warriors.

2.        To Be Considered for the Opportunity

If you wish to be considered for this opportunity, please promptly send Jim Bruen (jbruen@fbm.com) a copy of your current curriculum vita. Jim will also answer any questions. He will send all vitae received on or before 5:00 pm PST August 12  to ACLA/NRDC so that they may promptly select the Fellow who they feel best meets their needs as speaker. The selected Fellow will then contact Wu Qi and Grace Gao of NRDC/Beijing to coordinate travel and other arrangements.

Don’t miss this fascinating opportunity. 

Report from the ACOEL International Pro Bono Program

Posted on July 1, 2015 by James Bruen

            There are exciting developments in the College’s pro bono projects for Cuba, China and East Africa. This is our updated report.

            1.         Cuba

            With permission of the Executive Committee, the College has applied for a license to work in Cuba from the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). OFAC has replied by assigning the College a case number (an important development since we now have access to a Treasury Department case officer to help us) and noting that the College’s potential activities might (or might not) qualify for one of the 12 exceptions to the requirement for an OFAC license. We can either take our chances by proceeding with work and keeping careful records of our activities while awaiting a potential audit or apply for a specific opinion or license for a specifically described project. The pro bono program will work further with the Executive Committee to determine the nature and timing of our potential work in Cuba, but we regard this as a very promising path forward for the program.

            2.         China

            Notwithstanding the May 26 press coverage of the proposed new Chinese legislation declaring that Western non-profits are no longer welcome in China (describing them as “potential enemies of the state”[1]), our program continues to go forward with opportunities to work there. Zhou Saijun, the Director of Environment and Energy Committee under All China Lawyers Association has confirmed that ACLA will continue to cooperate with ACOEL and NRDC for its annual lawyer training. This event will take place in Xian in September 2015. There will be an opportunity for a College Fellow to speak at the training session. We will know shortly the proposed date and topic for the speech. As usual, we will ask those interested to submit their curricula vitae to me for transmission to the ACLA. They will select the Fellow they feel is most suited to their needs.

            Xian, as you may well know, is the site of the famous, and once-buried, terracotta warriors and their terracotta horses. It should be on everyone’s bucket list.

            3.         East Africa

            Coordinating the legal and political clients for work in East Africa has been challenging. But within the month, I hope to circulate a survey to solicit expressions of interest for work on  East African environmental issues. I will do what I can to get our African contacts to pick up the pace.

            In the interim, please call me at 415.954.4430 if you desire further information.

 


[1] See May 26, 2015 Wall Street Journal article by Andrew Browne which states in part, ”There have always been challenges in dispensing humanitarian services across such a vast country—everything from HIV/AIDS awareness campaigns to environmental cleanups and care for orphans. Regulations are so onerous that it is virtually impossible for many civic groups to operate legally. Still, thousands persist, often counting on sympathetic local police and officials to turn a blind eye to infractions. But that kind of indulgence may soon be ending. A Chinese draft law treats the entire sector of foreign nonprofits as potential enemies of the state, placing them under the management of the Ministry of Public Security. ***”

ACOEL’s China Project

Posted on August 1, 2014 by James Bruen

The China Project continues to provide opportunities for Fellows of the College to work on pro bono environmental law projects sponsored by non-governmental organizations and law faculties in China. Attorneys who have participated in the projects have described them as "peak experiences" and "once-in-a-career" opportunities. In the near term, the China Project has advisory and teaching projects underway. Moreover, the Project will likely offer the opportunity for one or more Fellows to train Chinese environmental lawyers in Beijing in September. Further projects are on the drawing board. Where Fellows travel to China, airfare, hotel, meals, transportation and visa expenses customarily have been reimbursed by the Chinese sponsor. Please email jbruen@fbm.com now if you would like further details of the September opportunity.

The China Project has already had a substantial impact on Chinese environmental lawyers and Chinese environmental law. Some activities have involved, or will involve, travel to Beijing, Shanghai or other destinations in China. Others can be completed from a Fellow’s home or office in the United States. During the first half of this year, as participants in the China Project:

ACOEL Fellows have consulted in person with representatives of the National People’s Congress, China’s Ministry of Environmental Protection, and the NRDC Beijing office about improving the enforcement of the country’s basic environmental laws. China’s participants in these consultations reported that they were “very productive” and that they came at a “critical moment” in the development of the National People Congress’s deliberations. The consultations were considered as among the important factors which led to amendments of the laws to enhance Chinese enforcement provisions. The amendments were later reported in the United States on National Public Radio. 

ACOEL Fellows are now preparing a comprehensive memorandum for training Chinese lawyers and scholars about the United States’ environmental impact assessment system.  

ACOEL Fellows are scheduled to train Chinese lawyers on various aspects of a broad range of United States’ environmental laws.

All of the consultations, training and analyses undertaken by Fellows during the China Project will be delivered in, or translated from, English. There is no foreign language requirement and no additional training required. The only special requirement arises where the Fellow will be traveling to China. He or she will need a Chinese visa – which should be easily obtained (even on very short notice in an emergency) by any Fellow in the College. If you need assistance on how to obtain a visa to visit China, contact me.

The China Project is a function of the College’s Policy Committee. For the future, the Committee is working on developing additional pro bono opportunities for sponsors in Central and South America, Africa, and India. Progress reports will be offered in future blogs and in reports at the Policy Committee meetings and presentations during the College’s annual conference (this year in Austin, Texas). For further information at any time – email jbruen@fbm.com or call Jim Bruen at 415.954.4430. 

Pioneering Environmental Law: Remembering David Sive (1922-2014)

Posted on May 2, 2014 by Nicholas Robinson

Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments.  He fashioned legal arguments and remedies where others saw none.  His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.

David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains.  He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England.  He had a mature concept of the ethics of nature long before he began to practice environmental law.

His early cases were defensive.  He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River.  Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law.  The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act.  The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced.  When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).

When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled.  This was no “NIMBY” response.  Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting.  This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century.  The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army.  The Army’s West Point Military Academy overlooks the River and Storm King.  

David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard.  David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida.  He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him. 

David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970).  Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge.  Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants.  He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires.  David Sive saved the beaches, parks and marinas of the Hudson shore.

Public interest litigation to safeguard the environment was born in these cases.  Public outrage about pollution and degradation of nature was widespread.  In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia.  David Sive was prominent among participants.  His essential argument was that “environmental law” needed to exist. 

On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ).  The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY).  This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee.  That year launched the “golden age” of NEPA litigation.  Courts everywhere began to hear citizen suits to protect the environment.

David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression.  In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law.  From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes. 

David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice.  He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts.  To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI).  With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school.  He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.

This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report.  The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed.  New legal theories and remedial initiatives will be needed that do not exist today.  The wisdom of ecologist Aldo Leopold can inform the next generation.  Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India.  The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.

The Challenges and Rewards of Environmental Pro Bono Work

Posted on December 10, 2009 by Christopher Davis

I suspect most of us did not go into environmental law to see how much money we could make as lawyers, but because we care about preserving and protecting the planet. While many of us, particularly in the private sector, have made a good living practicing environmental law, I believe it is our interest in and dedication to the subject matter and the outcomes that have attracted and kept most of us in this field. Most of us are “green” at heart and want to do well while doing good for the environment. Environmental pro bono work provides an opportunity to “give back” to the planet in ways private practice may not.

While we can do much good in private practice, the economic realities of private environmental practice impose some significant limitations on what we work on – generally solving the problems that our clients are willing to pay us to address that serve their business interests. To some extent, most of us are constrained to work on yesterday’s environmental problems – those which are regulated and for which clients will pay us to solve. Relatively few of us get a chance to work for paying clients on the great environmental issues of our time that will determine the future of life on earth: climate change, sustainable development and business practices, tropical forest preservation and species conservation, the impact of environmental degradation on the poor.

One way for those of us in private practice who are environmentalists at heart to more affirmatively work on the side of the environment and thereby increase our professional satisfaction and impact is to do environmental pro bono work. Pro bono work is generally defined by ABA Model Rule 6.1 and the Pro Bono Institute as performing legal work outside the ordinary course of commercial practice and without expectation of a fee, for persons of limited means or charitable, religious, civic, community, governmental or educational organizations, where such services are focused primarily to address the needs of persons of limited means, or to secure or protect civil rights, civil liberties or public rights. An additional category of pro bono work involves providing legal services to charitable, religious, civic, community, governmental or educational organizations in matters that further their organizational purposes. Environmental pro bono work typically involves the protection of public rights and the representation of nonprofit organizations in furtherance of their environmental missions. Many law firms have committed to the Pro Bono Institute’s Pro Bono Challenge, committing to dedicate at least 3% of the firm’s billable hours to pro bono work. 

 

Environmental pro bono work is a way for environmental lawyers to use their skills and experience to promote the environmental values that inspired us to practice environmental law. Environmental pro bono practice can include a variety of litigation and transactional work and related legal advice designed to conserve or protect resources, lay the groundwork for new laws or regulations, enforce existing environmental laws, and prevent or mitigate adverse environmental impacts to various environmental resources or disadvantaged communities. The latter, focusing on preventing adverse environmental impacts on low income, minority or other disadvantaged communities is typically described as “environmental justice” work. In Massachusetts, a referral clearinghouse called the Massachusetts Environmental Justice Assistance Network (MEJAN) has been set up by a non-profit organization and the Environmental Law Section of the Boston Bar Association to link environmental lawyers and consultants with community groups seeking legal assistance. 

 

Environmental pro bono work is often harder to come by than traditional pro bono work. One problem, particularly in a large law firm, is conflicts. In addition to the obvious ethical prohibition on handling matters directly adverse to a firm’s clients, proposed environmental pro bono work often raises “issue conflicts” where the proposed representation would involve representing an organization or position that might be considered generally adverse to the interests of the firm’s current or prospective clients (e.g., real estate developers, power companies or manufacturers), have the potential to create an adverse precedent for an important industry, or involve representation of interests and positions that some clients (or partners) do not like. In theory, pro bono clients and representations should be subject to the same ethical and conflicts standards as work for paying clients, but in practice this can be difficult to achieve given the politics and economics involved.

 

Regarding potential issue conflicts, there is a respectable argument that may be persuasive at least to enlightened clients (and partners) that it is helpful to be represented by lawyers who have worked on the other side of an issue, represented or have good relationships with adversaries and have a deeper understanding of the relevant environmental issues and perspectives. A lawyer who has worked on both the “environmental” and “regulated community” sides of an issue should be able to provide better advice and may have more credibility with regulators and citizen group adversaries that will be useful in negotiating a solution. Also, in our work for paying clients, it is not uncommon to take inconsistent positions for different clients in different matters, and to represent both plaintiffs and defendants or buyers and sellers.

 

Some types of environmental pro bono work may be less problematic in terms of client or issue conflicts. These may include conservation work for non-profits like The Nature Conservancy, the Trust for Public Land or local land trusts; matters seeking to enforce environmental laws against those government agencies and their operations, activities and projects, opposing particular development projects that threaten public resources, and certain environmental justice cases. Of course, each case is fact and situation specific and may raise conflicts or concerns.

We are fortunate to have the privilege to practice environmental law. Our work is generally interesting and significant – combining law, policy, science, economics and politics in solving complex and important environmental problems. Moreover, environmental lawyers are generally nice, thoughtful and decent people, and the environmental bar is still relatively small, collegial and public spirited. Each of us has the opportunity to do more good for the planet and achieve greater personal satisfaction than our paying practice allows through environmental pro bono work. Finding viable opportunities to do environmental pro bono work can be challenging, but is worth the effort.