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Issue

Volume 39, Issue 12 — December 2009

Articles

International Investment Agreements and Climate Change: The Potential for Investor-State Conflicts and Possible Strategies for Minimizing It

by Lise Johnson

Editors' Summary

Much concern has been raised regarding the possibility that measures governments take to mitigate and adapt to the impacts of climate change will conflict with their obligations under the law of the World Trade Organization. What has not yet received adequate attention, but poses a potentially greater threat of government liability under international law, is the possibility that the climate change-related measures States implement will be inconsistent with their obligations under the roughly 5, international investment agreements (IIAs) to which they are currently party. Although States do likely face exposure to IIA-based claims for their actions on climate change, there are strategies governments can and should pursue to minimize their potential liability.

Empowering Local Autonomy and Encouraging Experimentation in Climate Change Governance: The Case for a Layered Regime

by Michael Burger

Editors' Summary

In the decades-long absence of federal action, local governments--along with the states--have positioned themselves at the forefront of climate change and sustainability planning. These efforts, however, confront preemption problems imposed by federal "ceilings," or uniform national standards, under both existing environmental law and pending climate change legislation. In order to preserve the local autonomy values that underlie local action, and to capture the benefits of regulatory experimentation that result from it, federal climate change law should grant an agency, such as the U.S. Environmental Protection Agency, the discretion to approve local climate action plans that include measures that surpass federal ceilings.

The Endangered Species Act and Climate Change

by Lawrence Liebesman, Elizabeth Lake, and Peter Landreth

Editors' Summary

Climate change is already affecting ecosystems around the globe. In the United States, we are seeing forced species relocations due to temperature changes, reductions in habitat due to rising sea levels, and increasing adverse impacts of invasive species. These problems present challenges to implementation of the Endangered Species Act, particularly with regard to listing decisions and critical habitat designations. To address these issues, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service will need to take climate change and the "best available science" standard into account when examining effects on species.

Comment(s)

Incremental Changes in Soon-to-Be-Released Disclosures Unlikely to Satisfy Advocates

by Tom Mounteer

In the coming months, U.S. companies that sell their shares on public stock exchanges will be filing annual reports with the Securities and Exchange Commission (SEC). In part, those SEC filings aim to allow investors to see the company's prospects from management's perspective. In their filings, management describes developments it sees on the horizon that have the potential to affect their companies' operations--and profits.

Many will be intently reading the filings to see what insights they shed on managements' perception of how climate change will affect their businesses. The smart money is on marginally greater disclosure than in preceding years. This will continue a trend we have seen in each of the past few years' disclosures.

What more might we reasonably expect to read in those disclosures? And will those disclosures satisfy those that have asked the SEC to provide guidance on what those disclosures should reveal?

FIFRA Scientific Advisory Panel Considers Nanosilver

by Lynn L. Bergeson

On November 3-5, 2009, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) met "to consider and review a set of scientific issues related to the assessment of hazard and exposure associated with nanosilver and other nanometal pesticide products." The decision to convene an SAP was nominally motivated by the U.S. Environmental Protection Agency's (EPA's) need to consider four applications pending at the Office of Pesticide Programs (OPP) seeking registration of products containing nanosilver-based active ingredients.

The nanosilver products, which would take the form of textile additives, polymers, coatings, and/or plastics, would be used to protect a treated product from microorganisms or to impart antimicrobial activity to a treated material. Accordingly, they would be used in the same manner as some of the currently registered silver products, including those used as materials preservatives and antimicrobial pesticides. Notably, many of the 110 currently registered silver-based products actually contain nanosilver.

Unmentioned in either the September 16, 2009, Federal Register notice announcing the public meeting or the SAP Background Document EPA prepared in connection with the meeting is a May 2008 petition submitted by the International Center for Technology Assessment (ICTA) and others requesting, among other actions, that EPA classify nanosilver as a pesticide, require the registration under FIFRA of nanosilver products, and determine that nanosilver is a new pesticide that requires a new FIFRA pesticide registration (available at http://www.icta.org/nanoaction/doc/CTA_nano-silver%20petition_final_5_1_...).