I typically generate documents using voice recognition software, which means that I need to dictate directly into a computer. Since this would be a distraction in the CHRD office, where we are all working closely together, I try to generate documents at home, before going to the office. Monday morning, I provided feedback to CHRD with respect to its case selection criteria: how it determines which cases to select.
When I came to the office, Chimge gave me a description of the cases that the students are considering (I appreciate the comment on the blog that this is a subject of interest, but I did not have any information to provide until Monday).
Two of the cases involved potential challenges to the grant of exploration permits for mining, one involved an approval of an ill considered hydroelectric facility, and one involved issues pertaining to the grant of a license to mine coal in western Mongolia.
Monday morning, we met with the student group that was considering one of the mining exploration permits. The students had done an excellent job in preparing the case; both in considering the relevant facts and the applicable law. The mining is to be performed in a sacred area, and we discussed whether a challenge to the mining application could be based on the fact that the government had failed to consider the impacts on the area which arguably represents an interference with the practice of religion, in violation of the Mongolian Constitution.
I spent most of Monday researching the hydropower case and the coal mining case. It was relatively easy for me, conversant with Internet searches and able to find complex documents in English and understand them quickly, to uncover significant information which would not have been readily available to Mongolian law students. I was outraged by what I found.
The Mongolian government, with help from Abu Dhabi and Saudi Arabia, constructed an 11 MW plant in a rural area of Mongolia. This is a very tiny plant, which would not have supplied a significant amount of electric energy, even without the drought of the last few years . A hydroelectric facility at the site had been considered in the 1970s, but had been deemed to be economically unfeasible. However, because Mongolia can get the economic benefits of carbon reduction credits under the Kyoto accords, the plant is now economically feasible. The plant, which was constructed in 2008, has had a devastating impact upon the local community, particularly herders whose animals can no longer get water.
I was able to find the report that was presented to obtain recognition of the credits, as well as other documents, that reference the environmental impact assessment that was prepared for the Mongolian government. The students have not been able to obtain the government, because obtaining documents from the government is not always easy, despite the fact that access to government information is a Constitutional right under Mongolian law. It was clear to me that the environmental impact assessment misrepresented the applicable situation and that the plant failed to utilize the best available technology.
The students had not been able to obtain information regarding the entity that was doing the coal mining. I quickly determined that the entity was a Hong Kong company, and obtained relevant information regarding its corporate structure, and its report to the shareholders regarding the Mongolian coal mine. The critical issue in this case is the fact that Mongolian law requires mining companies that are generating revenue greater than 5% of the gross domestic product of Mongolia to negotiate an interest in their operations with the government, and this was not done. There are also issues pertaining to the failure of this mining operation to perform an environmental impact assessment, and questions about improper relationships between the company and individual members of the Mongolian government.
On Tuesday, Chimge and I met with the students to discuss these two cases. I explained the basics of hydroelectric facilities, including a brief description of the physics relative to the plant, and, of course, gave the students all of the documents that I had found. I asked the student who is responsible for presenting the case to research the question of whether there are any remedies under the Kyoto accords for projects which were only been permitted because of carbon reduction credits, and whether there are any remedies for false information provided to obtain a certification.
The student who is responsible for the coal mining case had been in the office on Monday, and had already seen some of the documents that I have found. He is going to continue to look for the environmental impact assessment, and will also do some research as to what is meant under Mongolian law by "gross domestic product.”
Tuesday afternoon, I went back to my apartment to finally get a reliable Internet connection installed. Chimge had sent me a description of problems that CHRD had encountered with various cases, particularly regarding the law pertaining to standing, and I worked on drafting my comments and reaction to this information.
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