Justin Gundlach
Climate Law Fellow

The Biggert-Waters Flood Insurance Reform Act of 2012 calls for the Federal Emergency Management Agency (FEMA) to incorporate sea level rise into the Flood Insurance Rate Maps (FIRMs) that inform how FEMA and other agencies implement programs related to flood insurance and flood-related disaster mitigation and recovery. The 2013 charter of the Technical Mapping Advisory Council (TMAC) makes TMAC responsible for recommending—based on “the best available climate science”[1]—how to integrate the implications of sea level rise into FIRMs and into guidelines about how to make use of FIRMs. In its October 2015 Future Conditions Risk Assessment and Modeling Report (Interim) Report, TMAC made a number of recommendations to FEMA about how to factor climate change and sea level rise into FIRMs, and how to make the data behind FIRMs available to state and local actors for the purpose of planning for the “short-term” (2 years or less) and “long-term” (more than two years). Three features, discussed below the jump, make those recommendations especially notable.

FEMA is currently reviewing the interim report’s recommendations and is expected to issue its final approval of that report during TMAC’s December 9, 2015 conference call. Another conference call will be held on December 10, during which FEMA’s Flood Mapping Integrated Project Team will brief the TMAC on the status of FEMA’s mapping program. That briefing will kick off another TMAC review and report, this one required by the Homeowner Flood Insurance Affordability Act of 2014 and focused on the mapping that informs FEMA’s National Flood Insurance Program. FEMA is accepting written public comments until December 4 on various issues related to TMAC’s reports and will also accept brief verbal comments at the beginning of the December 9 and 10 conference calls.

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Jessica Wentz
Associate Director and Fellow

Earlier this month, I visited Savannah, Georgia to talk with concerned citizens about the environmental review process for oil and gas infrastructure in their state. My presentation focused on how the public can use the National Environmental Policy Act (NEPA) to ensure that agencies evaluate the full scope of environmental impacts associated with major projects, such as Liquefied Natural Gas (LNG) terminals, pipelines, and offshore drilling. The event was hosted by the Center for a Sustainable Coast, an environmental NGO in Georgia.

One of the key points of discussion was that NEPA requires agencies to evaluate the “indirect impacts” of projects, including any indirect greenhouse gas (GHG) emissions associated with the expansion of oil and gas infrastructure. The U.S. Council on Environmental Quality (CEQ) recently issued draft guidance clarifying that the indirect impact analysis should encompass:

“[E]missions from activities that have a reasonably close causal relationship to the Federal action, such as those that may occur as a predicate for the agency action (often referred to as upstream emissions) and as a consequence of agency action (often referred to as downstream emissions).”

But despite this guidance, the Federal Energy Regulatory Commission (FERC) and the Bureau of Ocean and Energy Management (BOEM) routinely overlook downstream and upstream emissions in their NEPA analysis for proposed pipelines, LNG export terminals, and offshore drilling plans.

There are two ways that citizens can get involved in the NEPA process to advocate for disclosure of upstream and downstream emissions. First, citizens can submit comments to the lead agency highlighting certain environmental issues that should be considered in the environmental review process. For example, the Sabin Center recently used the NEPA process to submit comments on a proposed LNG export terminal in Alaska, urging FERC to consider both indirect emissions and the impacts of climate change on the project. The Savannah residents were excited to learn about how they, too, could use the NEPA process to comment on proposed projects, such as the Sabal Trail Pipeline, the Elba Island LNG Export Terminal, and the 2017-2022 Outer Continental Shelf Oil and Gas Leasing Program.

Second, citizens can file a lawsuit when an agency fails to comply with NEPA—for example, by refusing to prepare a full Environmental Impact Statement (EIS) for a project that will have significant impacts, or by publishing a final EIS that does not adequately analyze the environmental consequences of the project. The courts play an important role in enforcing NEPA, and there is now a growing body of case law requiring agencies to consider upstream and downstream GHG emissions from fossil fuel projects (summaries are available on our U.S. Climate Change Litigation Chart).

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Nascent Convergence in Corporate Climate Disclosure Requirements?

Posted on November 24th, 2015 by Justin Gundlach

Justin Gundlach
Climate Law Fellow

In advance of the recent G-20 meeting in Ankara, Turkey, the G-20’s Finance Ministers and Central Bank Governors asked the international Financial Stability Board to hold a meeting “on the financial stability implications of climate change related issues.” Following that September meeting, the FSB published a proposal in November for “an industry-led disclosure task force . . . to develop voluntary, consistent climate related disclosures of the sort that would be useful to lenders, insurers, investors and other stakeholders in understanding material risks.” Details of the proposal are discussed below the jump.

This development is just the latest in a series. As the investment firm BlackRock put it in an October 2015 report, “You may or may not believe man-made climate change is real or dismiss the science behind it. No matter. Climate change risk has arrived as an investment issue.” Better understanding of climate change—its causes, effects, trajectory, and financial implications—has prompted responses on the part of corporations, NGOs, and regulators. Some corporations have begun imputing internal carbon prices; the Carbon Disclosure Project and Climate Disclosure Standards Board have motivated a growing list of corporations and governments to undertake climate change-related disclosures; and, most notably, regulators now encourage—with varying degrees of stringency and clarity—disclosure of climate change-related risks to investors and the public.

As reporting requirements take shape, so too do the legal implications of failing to meet those requirements. Also discussed below the jump are investigations by the New York Attorney General since 2007 into the adequacy of climate change-related corporate disclosures. Much as the FSB’s proposed task force could unify and give shape to currently inchoate climate change-related disclosure requirements, the New York AG’s investigation into ExxonMobil could highlight the consequences of efforts to dodge or game disclosure requirements in the U.S. and abroad.
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our childrens trustOn November 19, the Washington State Superior Court issued a decision in which it affirmed that climate change affects public trust resources in the state, but ultimately held that the state was fulfilling its public trust obligations by engaging in rulemaking to establish more comprehensive greenhouse gas (GHG) standards. The decision was a partial victory for Our Children’s Trust, an organization that has been pursuing a nationwide litigation campaign to protect the earth for current and future generations.

Notably, the court did not expand the definition of “public trust resources” protected under the Washington State Constitution to encompass the atmosphere.[1] Rather, the court explained that climate change poses a threat to the state’s navigable waters, a traditional public trust resource, and the state has an obligation to protect those waters from harm.

The court also discussed the state’s Clean Air Act, which requires the state to “[a]dopt rules establishing air quality standards” for GHG emissions in a manner that “[p]reserves, protect[s] and enhance[s] the air quality for the current and future generations.”[2] The court noted that Washington’s current GHG emissions standards do not fulfill this mandate to preserve, protect, and enhance air quality for current and future generations. This is because the current regulations only address a small proportion of the state’s GHG emissions, and totally fail to address transportation-related emissions (which constituted 44% of the state’s total emissions in 2010).

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Representative Lamar Smith (R-TX) is continuing his campaign for internal National Oceanic and Atmospheric Administration (NOAA) documents, including new claims from an unnamed whistleblower that NOAA scientists “potentially violat[ed] NOAA’s scientific integrity policies.” Rep. Smith has also now threatened to use an unspecified “compulsory process” to obtain the desired documents (as explained below, this very likely means contempt of Congress proceedings). Last month, Rep. Smith subpoenaed the agency for internal communications regarding a study led by NOAA scientist Dr. Thomas Karl; published in Science in June 2015, the study found that recent ocean surface temperature increases were greater than earlier studies had indicated.[1] The research has been corroborated by other independent studies[2] and contradicts the notion – espoused by Rep. Smith among others – that global warming has “paused.”[3]

The October 13, 2015 subpoena followed months of questioning by Rep. Smith, who has oversight powers via his position as Chair of the House Science, Space, and Technology Committee. (As of this year, the House Science Committee allows its Chair to issue subpoenas unilaterally.[4]) NOAA provided much of what Rep. Smith wanted, including pointing him to the relevant data and research methods – which had already been publicly available – as well as providing multiple in-person briefings to explain the science.[5] Rep. Smith has also sought internal NOAA communications, claiming it is “suspicious” that NOAA “alters data to get the politically correct results they want and then refuses to reveal how those decisions were made.  NOAA needs to come clean about why they altered the data to get the results they needed to advance this administration’s extreme climate change agenda.”[6]

But despite Rep. Smith’s requests, NOAA has refused to produce any internal communications regarding the study. In a statement, the agency explained that “the confidentiality of these communications among scientists is essential to frank discourse” and it is “a long-standing practice in the scientific community to protect the confidentiality of deliberative scientific discourse.”[7] The American Meteorological Society sent a letter to Rep. Smith endorsing NOAA’s stance, writing that the “advancement of science depends on investigators having the freedom to carry out research objectively and without the fear of threats or intimidation whether or not their results are expedient or popular” (emphasis original).[8]

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Now Hiring – 2016 Summer Internships

Posted on November 17th, 2015 by Jessica Wentz

        Last year’s interns on a field trip to view adaptation measures underway in Staten Island.   

The Sabin Center is now accepting applications for internships for summer 2016. Please feel free to circulate the following information to anyone who might be interested in these positions:

Undergraduate and Master’s Students

The Sabin Center for Climate Change Law at Columbia Law School is currently seeking a few exceptional undergraduate and/or master’s students to serve as interns for summer 2016. Undergraduate & master’s-level interns work with the Center’s faculty director, Professor Michael Gerrard, Executive Director Michael Burger, and current fellows on a wide range of cutting-edge climate change, energy, and environmental policy issues. The Center does both domestic and international work on mitigation and adaptation. Students will be assigned to projects that are policy oriented, or may work jointly with law student interns on those projects with a legal component, and should receive broad exposure to the field of climate change law.  Students with some background in environmental policy, energy policy and/or sustainable development are particularly encouraged to apply.

Internships are full time for 8-10 weeks.  Unfortunately, the Center is not able to provide funding for summer internships, but Columbia students may apply for funding through the Earth Institute’s summer grants program and we are happy to support applications for outside funding.

To apply, please send a copy of your resume to Jessica Wentz, jaw2186@columbia.edu. For more about the Center, please visit our website.

Law Students

The Sabin Center for Climate Change Law is hiring for its 2016 summer internship program. Legal interns work with Center’s Faculty Director Michael Gerrard, Executive Director Michael Burger, and current fellows on a wide range of cutting-edge climate change, energy, and environmental law topics. The Center does both domestic and international work on mitigation and adaptation.  Past summer legal interns have drafted a white paper to assist regulators in the design of carbon cap-and-trade programs, contributed sections of white papers on state energy efficiency laws and state disaster preparedness plans, advocated to improve the New York electricity grid’s ability to withstand future storms like Hurricane Sandy, and researched legal issues related to sea level rise in the Marshall Islands.

Internships are full time for 8-10 weeks.  Although the Center cannot provide direct funding for summer legal internships, interns are able to qualify for CLS non-profit summer funding. Non-CLS students may also apply for the summer internship program.

To apply, please send a copy of your resume and an unofficial transcript to Executive Director Michael Burger, michael.burger@law.columbia.edu. For more about the Center, please visit our website.


Sabin Center files comments on Alaska LNG Project

Posted on November 16th, 2015 by Justin Gundlach

Justin Gundlach
Climate Law Fellow

The Alaska Liquefied Natural Gas (LNG) Project is enormous. It is designed to link natural gas drilling operations on the North Slope of Alaska to liquefaction facilities in Nikiski (south of Anchorage) via an 800-mile pipeline. The Natural Gas Act assigns the Federal Energy Regulatory Commission (FERC) responsibility for licensing new natural gas infrastructure, and requires FERC to conduct an environmental review of such infrastructure consistent with the requirements of the National Environmental Policy Act (NEPA). FERC is therefore responsible for conducting an environmental review of the Alaska LNG Project.

FERC has already taken the first step in the NEPA process by deciding to draft a full environmental impact statement (EIS) for the Project. The next step is to define the scope of what that statement will consider. The SabinTAPS pipeline image Center responded last week to FERC’s request for comments about the scope of the Alaska LNG Project’s EIS. The Sabin Center’s comments emphasize the importance of conducting what is sometimes called a “reverse NEPA” review, meaning a review of the effects that Alaska’s rapidly changing climate is expected to have on the Project as well as the effects the Project is expected to have on the Alaskan environment. That and other key points raised in the comments are discussed below the jump.

But first, take note of the larger context. As the agency responsible for licensing natural gas infrastructure and facilities, FERC sits at the confluence of several significant trends and pressures. These include increasingly rapid and consequential changes to the climate, fevered efforts to build new natural gas infrastructure amid a period of rapidly growing supply and demand, and calls for more coherent application of NEPA by agencies and courts considering the climate-related environmental impacts of and on reviewable activities. This confluence has given rise to a number of contentious environmental reviews of natural gas infrastructure projects. A central point of contention has been whether FERC adequately considers indirect effects both upstream (e.g., of drilling and extraction) and downstream (e.g., of transport and combustion by end-users) of the project it is reviewing.[1] The Alaska LNG Project sits squarely at the confluence of the trends noted above, and, as explained below, its design will make it difficult for FERC to avoid giving full consideration to impacts caused indirectly by well development and gas extraction in the North Slope as well as the shipping and ultimate of combustion of gas after it leaves Nikiski.

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On November 4, 2015, Justin Trudeau of the Liberal Party was sworn in as Prime Minister of Canada. Less than 48 hours later, the new administration announced it was ending restrictions on federal scientists’ public communications.[1]

The previous Conservative government, under Prime Minister Stephen Harper, tightly vetted communications from all federal workers, including government scientists. The Economist wrote in 2013 that “[f]rom the government’s point of view this approach has worked splendidly, with politicians and officials delivering a uniform message” but “scientists and the union representing them have complained mightily.”[2] Nature also published an editorial criticizing the Harper government’s stance, noting that “Canadian journalists have documented several instances in which prominent researchers have been prevented from discussing published, peer-reviewed literature. Policy directives and e-mails obtained from the government through freedom of information [requests] reveal a confused and Byzantine approach to the press, prioritizing message control and showing little understanding of the importance of the free flow of scientific knowledge.”[3] Maclean’s wrote that “[w]ith the muzzling of scientists, Harper’s obsession with controlling the message verges on the Orwellian.”[4]

Department of Fisheries and Oceans geneticist Dr. Kristi Miller-Saunders, who had previously been hampered in communicating about her research on wild salmon, said the policy change was “very exciting news . . . . I was terribly embarrassed at having to decline numerous opportunities to speak about my research. What was perhaps even more frustrating was when stories went ahead about research I had published without [the reporter] being able to speak to me personally, and either got some of the important facts wrong or over-interpreted the science, and I was not able to speak out to correct them.”[5] Read more »

Sustainable Development and the Brazilian Judge

Posted on November 10th, 2015 by Jessica Wentz

Gabriel Wedy webGabriel Wedy
Visiting Scholar, Brazilian Judge, and Law Professor at ESMAFE/RS*

The approval of 17 goals and 169 targets for sustainable development by the United Nations Conference on Post-2015 Development Agenda is unquestionably an advance for humanity. Economic development alone is unsatisfactory: it must be paired with human development, respect for the environment and sound governance.

It is paramount to take sustainable development seriously nowadays. The planet suffers from overpopulation and unplanned over-exploitation of scarce and non-renewable resources as anticipated by the ecologist Garrett Hardin in his elegant essay “The Tragedy of the Commons” in 1968. There are now over 7.2 billion people on earth, nine times more people than the 800 million back in the start of the Industrial Revolution in 1750. Every year more than 75 million human beings are born. By 2040, the world population will be between 8 and 9 billion people, fighting for limited natural resources and space.

The annual gross world product (GWP) is currently US$ 90 trillion. The world economy has been growing rapidly from 3% to 4% every year, albeit unequally in what regard the distribution of wealth within countries and among nations.

Within this economic and social context falls the environmental crisis that humanity has been facing, caused by the increasing vulnerability and extinction of biodiversity and the harmful effects of climate change largely due to human action. Between 1750 and 2014, carbon dioxide emissions increased from 280 parts per million to 400 parts per million. Methane increased from 700 parts per billion to around 1,800 parts per billion; and nitrous oxide increased from 280 parts per billion to 327 parts per billion. Global warming causes impacts and harm to human health, infrastructure, drinking water reservoirs, ecosystems and oceans.

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NYAG LogoJessica Wentz
Associate Director and Fellow

On November 8, Peabody Energy Corporation, the world’s largest publicly-traded coal company, reached a settlement with the New York Attorney General’s Office (“NYAG”) in which it agreed to revise its financial disclosures to reflect the potential impact of climate change regulations on its future business and cash flow.

The settlement followed a two-year investigation by the NYAG concerning Peabody’s failure to disclose financial risks associated with climate change policies in filings to the Securities and Exchange Commission (“SEC”). The NYAG found that Peabody had repeatedly denied its ability to reasonably predict the potential impacts of climate change policies and on future operations, financial conditions, and cash flows. At the same time, Peabody had made market projections about the impact of future climate change policies, some of which concluded that regulatory actions could have a severe negative impact on Peabody’s future financial condition. For example, in March 2013, Peabody predicted that the “aggressive” regulation of greenhouse gases (GHGs) from existing coal power plants in the U.S. would reduce the dollar value of sales of Southern Powder River Basin coal by 38% and Illinois Basin coal by 33% by 2025.

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