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China’s Air Pollution Rules: Compliance and Enforcement Lessons From Global Good Practices PDF Print E-mail
Recent publications
Written by Kenneth Markowitz   
Monday, 14 November 2016 12:27

In recent years, air pollution issues have received unprecedented public attention in China. Partly for this reason, the Chinese government has made significant efforts toward reducing air pollution. However, compliance and enforcement will be key to cleaning up the air in China and around the globe.

This Article, published in the November 2016 edition of The Environmental Law Reporter, discusses seven specific challenges to achieving effective compliance with and enforcement of the air pollution rules in China. In this regard, global good practices can be useful references for the Chinese government and other stakeholders. Yet such discussions and considerations are only truly useful when viewed and considered within the context of China’s unique rulemaking and governance systems, as well as its cultural background.

Download the article here.

Xiaopu Sun is a Law Fellow at the Institute for Governance and Sustainable Development in Washington, D.C. Kenneth J. Markowitz, an attorney, is the President of Earthpace LLC and the Senior Clean Energy and Environmental Consultant with Akin Gump Strauss Hauer and Feld. Durwood Zaelke is the founder and President of the Institute for Governance and Sustainable Development in Washington, D.C., and co-founder and co-director of the Program on Governance for Sustainable Development at the Bren School of Environmental Science & Management, University of California, Santa Barbara. Jin Wang is a Professor at Peking University Law School in Beijing, China.

Ken to Participate in Panel on Post-Paris Opportunities PDF Print E-mail
Recent publications
Written by Administrator   
Monday, 01 February 2016 21:53

On Saturday, February 13, at 12:30 pm, Ken Markowitz, who is an adjunct professor at American University Washington College of Law, will participate as a panelist in a discussion on "Climate Change, Energy & Environment: Strategies and Opportunities in a Post-Paris World." The session will explore emerging domestic and international trends that affect the practice of law in the field of energy and the environment. The discussion will emphasize the impacts of the Paris climate negotiations and President Obama’s domestic climate action plan on the future regulation of energy and the environment.


The panel will be held as part of a series of events around AU WCL's Ribbon Cutting ceremony, whcih will take place on Friday, February 12, 2016 at 2:00 p.m. The event will bring together alumni, city officials, students, and members of the law school and AU communities. American University Washington College of Law Dean Claudio Grossman and AU President Neil Kerwin will be joined by U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, who will give the keynote address.


The ribbon cutting takes place just over one week after the 120th anniversary of the Feb. 1, 1896, founding of the Washington College of Law.

Compliance Strategies to Deliver Climate Benefits PDF Print E-mail
Climate Compliance
Written by Administrator   
Wednesday, 23 October 2013 00:00

cover of special reportEarthpace President Ken Markowitz is the co-editor of a new Special Report: Compliance Strategies to Deliver Climate Benefits, produced by the International Network for Environmental Compliance and Enforcement (INECE).

This Special Report is a collection of articles that demonstrate the importance of compliance and enforcement to the success of global efforts to mitigate climate change. They offer practical strategies for designing robust laws and standards, implementing effective climate regimes, monitoring emissions, detecting and reporting violations, and sanctioning non-compliance and fraud, among other actions to assure compliance with climate laws. The major themes that emerge include the European experience producing compliance in carbon markets as emissions trading expands worldwide, the importance of enforcing existing laws that have climate benefits, and the advantages of interagency cooperation and networking to effectively enforce climate laws and maximize limited resources.

The Special Report comprises a mix of articles, diverse in topical, sectoral and geographical representation. A number of cross-cutting themes emerge, many of which reflect the global trends considered above. Many of the articles adhere to the central theme of compliance and impart useful advice on tools for implementing regulation and monitoring, reporting and verification, as well as appropriate penalties for both negligent and intentional non-compliance with regulatory requirements.

The articles in the Special Report reflect some of the trends in global climate change governance, compliance, and enforcement, including the experiences of competent authorities to produce compliance under the European Union Emissions Trading Scheme, enforcement of climate change related laws, and interagency cooperation to combat climate change comprehensively and maximize resources. On markets, the European experience provides valuable lessons on enforcement and ensuring the integrity delivery of climate benefits for other countries like Australia and South Korea that have plans to launch emissions trading systems. With respect to climate related laws, national air pollution, clean energy, and other laws providing climate change benefits will only work if there is effective implementation and enforcement to maximize compliance. Enforcement of conventional environmental laws, including using networks, can also serve as examples for the climate change enforcement community.

Visit the Special Report online toolkit to access the articles or download the report as a PDF.


OAS Colloquium Explores Effective Enforcement PDF Print E-mail
Carbon Litigation
Written by Administrator   
Thursday, 01 November 2012 21:58

The Organization of American States (OAS) held a Colloquium on Prospects for Environmental Adjudication and Effective Enforcement on Wednesday in Washington, D.C.


Panelists discussed the role of international financial institutions in reducing environmental law risks, the role of the private sector as an implementation partner, good capacity building practices, the role of NGOs and citizens in environmental governance, and how all of these pieces can contribute to achieving sustainable development objectives at the national level.


For more information, see the web page of the International Network for Environmental Compliance and Enforcement (INECE) at http://inece.org/2012/10/31/oas_colloquium/.



Predictability in the Administration of the EU ETS as a Foundation for Market Confidence PDF Print E-mail
EU Emissions Trading Scheme
Written by Gunnar Baldwin   
Thursday, 01 March 2012 11:33

A protracted recession and fragmented carbon market policies in the European Union and its member states threaten to undermine the perception of the EU Emissions trading Scheme (EU ETS) as a blueprint for the future of emission trading schemes in the rest of the world. A key challenge for the ETS has been an oversupply of emission allowances resulting from optimistic assumptions concerning the economy. An oversupply of allowances creates market uncertainty and undermines incentives for investment in renewable energy and energy efficiency.

It would be wrong to conclude that the EU ETS is failing, the International Emissions Trading Association (IETA) says in a new position statement, and the proper response to economic volatility should not be a series of ad hoc market interventions. In order to provide an investment climate that provides sufficient confidence to support robust investment in green technology and renewable energy (the very investment needed to establish a trajectory for long-term economic growth), the European policy makers must show that they have a responsive but unwavering game plan.

At the heart of concerns over an inconsistent regulatory approach is a recent vote by an EU parliamentary committee for measures that would establish a set-aside for carbon allowances (removing a number of allowances from the ETS), reducing the oversupply of carbon allowances that has resulted from a weak EU economy.

Outcome of the Durban (COP 17 and CMP 7) Agreements: Implications for the Private Sector PDF Print E-mail
Climate Compliance
Written by Gunnar Baldwin   
Saturday, 14 January 2012 08:32

The 2011 United Nations Climate Change Conference in Durban, South Africa,[1] resulted in a set of interrelated agreements for furthering international action on climate change. These included the establishment of a new process for working toward a binding, comprehensive agreement on mitigation (the Durban Platform), a second commitment period for the Kyoto Protocol, and a variety of instruments for implementing components of the 2010 Cancun Agreements.[2] Although directly applicable only to national governments that are Parties to the Convention, collectively these agreements define an implicit realm of areas in which reporting requirements and emission reduction obligations are likely to be apportioned to the private sector at some point in the future.

1. The Durban Platform

UNFCCC Parties agreed to establish a new “process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention and applicable to all Parties.” In addition, the Parties agreed to create a new negotiating body, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG-DP), to carry out the task of defining the structure and details of a comprehensive climate action mechanism.[3] In essence, the agreement calls for countries to participate in a three-year process, beginning in the first half of 2012 “as a matter of urgency” that is designed to result in an outcome that is rule-based or has legal effect. The words “binding” or “commitment,” however, are not found in the agreement and the Platform does not address the legal form of commitments that could emerge from an outcome with legal force.

Details of the mechanism must be completed by 2015, with implementation of the new mechanism to begin in 2020. Once in effect, the new protocol, instrument, or outcome will replace existing UNFCCC mechanisms, including the Kyoto Protocol. The Durban Platform also requires the AWG-DP to take up a discussion of the long-term implementation of matters which are currently subject to negotiation by other UNFCCC bodies,[4] including mitigation, adaptation, finance, transparency, technology transfer, and capacity-building.

Implications for the private sector

The Durban Platform launches a long-term process, with mid to long-term implications. Political willingness on the part of countries to commit to a meaningful, comprehensive agreement will hinge, in part, on participants furnishing data that is accurate, transparent, complete, and comparable. National governments cannot accomplish this alone. Requirements for private sector emitters in all sectors to provide increasingly accurate and standardized data on their emissions is an inherent part of process.

The Importance of the Judiciary in Environmental Compliance and Enforcement PDF Print E-mail
Recent publications
Written by Gunnar Baldwin   
Thursday, 10 May 2012 15:59

Earthpace president Ken Markowitz co-authored an article that appears in the latest edition of the Pace Environmental Law Review. The article focuses on environmental courts and tribunals, and specifically on how these institutions improve access to justice and environmental protection.

The Importance of the Judiciary in Environmental Compliance and Enforcement, co-authored by INECE co-founder Jo Gerardu, explores the central role that the judiciary plays in enforcing environmental law and in promoting sustainable development; reviews the international mandates for enforcement and compliance cooperation, describes ways in which the judiciary participates in realizing a sustainable future, focuses on environmental tribunals, and evaluates channels for the judiciary to cooperate at a global level through trans-governmental networks.

Other articles in the Journal include Ensuring Access to Justice Through Environmental Courts by Nicholas A. Robinson, Environmental Courts and Tribunals: The Case of Kenya by INECE Executive Planning Committee member Donald W. Kaniaru, and Brazil’s Green Court: Environmental Law in the Superior Tribunal de Justiça (High Court of Brazil) by Nicholas S. Bryner. Additionally, the Journal includes the transcript of a speech given by INECE Executive Planning Committee Co-chair Justice Antonio Herman Benjamin, We, the Judges, and the Environment, delivered at the International Symposium on Environmental Courts and Tribunals, hosted by Pace Law School and the International Judicial Institute for Environmental Adjudication (IJIEA), on April 1, 2011, in White Plains, New York.


Regulating Carbon Intensity and Anti-Protectionism: Finding the Right Balance PDF Print E-mail
Carbon Litigation
Written by Gunnar Baldwin   
Monday, 23 January 2012 06:21

A recent federal court decision ruling that California's Low Carbon Fuel Standard (LCFS) violates the dormant Commerce Clause of the U.S. Constitution highlights an issue that has much broader implications than the setback it creates for that state's plan for shrinking its net carbon emissions in the transportation sector. In finding that California's preferential treatment for fuels with low full life-cycle "carbon intensity" (all carbon emitted from extraction and refinement to point of sale) discriminates against out-of-state fuel suppliers, the court's decision in Rocky Mountain Farmers Union v. Goldstene has underscored the need for balancing legitimate anti-protectionist concerns with the ability of governments to reduce the carbon footprints of states, regions, or countries.

Compliance is Essential for Environmental Impact Assessment Success PDF Print E-mail
Climate Compliance
Written by Administrator   
Tuesday, 16 November 2010 16:18

INECE Managing Director Ken Markowitz delivered remarks today at the World Bank during the Special Symposium on Climate Change and Impact Assessment. The Symposium, hosted by International Association for Impact Assessment, engaged experts on discussions of the effects of climate change on the impact of projects and the ways that impact assessment can be used for understanding risk and responding to climate change.


Speaking on a panel on “National Governments: Climate Change and EIA – Beyond North America,” Mr. Markowitz explored the risks of failing to adequately assure compliance with EIA requirements. A number of countries have developed guidance for incorporating climate change considerations in environmental assessment at the project level. Mr. Markowitz cautioned that “without compliance with EIA requirements and enforcement of EIA terms, the impact and value of these  costly assessments will be greatly minimized.” He recognized that this is as applicable to climate change, in terms of both project and programmatic considerations, as well as the development of worst case scenarios, as it is to traditional EIA topics like land-use planning and transportation.


Background information on climate change and impact assessment are available at on the IAIA web site.


This article is cross-posted at http://www.inece.org/.

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