Climate Litigation Charts: February 2016 Update

Posted on February 4th, 2016 by Jessica Wentz

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

Here are the additions to the litigation charts (Update #83).


D.C. Circuit Denied Stay in Clean Power Plan Challenge and Set Briefing Schedule; Petitioners Asked Supreme Court for Immediate Stay

On January 21, 2016, the D.C. Circuit Court of Appeals denied motions asking for a stay of EPA’s Clean Power Plan. The order stated that the petitioners had not “satisfied the stringent requirements for a stay pending court review.” The court also ordered that consideration of the appeals be expedited. Oral argument was scheduled for June 2, 2016, and the court asked the parties to reserve June 3 in the event that argument did not conclude on the 2nd. The order indicated that the members of the panel that will review the challenge are Judges Judith W. Rogers (appointed by President Bill Clinton), Karen LeCraft Henderson (appointed by President George H.W. Bush) and Sri Srinivasan (appointed by President Barack Obama). On January 28, the court set the briefing schedule, after receiving proposals from the parties. The schedule required submission of petitioners’ briefs by February 19, EPA’s brief byMarch 28, and final briefs by April 22. After the D.C. Circuit denied the stay, a group of 29 states and state agencies led by West Virginia and Texas filed an application for an immediate stay with the Supreme Court. That application was joined by applications from business associations, from the coal industry, from utility and allied parties, and from North Dakota. The applications are directed to Chief Justice John Roberts, who is the circuit justice for the D.C. Circuit. Roberts requested EPA’s response by February 4. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. order denying stay Jan. 21, 2016): added to the “Challenges to Clean Power Plan” slide. [Editor’s Note: The numerous petitions, motions, and other documents filed with respect to the Clean Power Plan are available on pages 15–16 of the chart.]
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Dr. Damilola Olawuyi Joins Sabin Center as Visiting Scholar

Posted on January 28th, 2016 by Jessica Wentz

OlawuyiWe are pleased to announce that Dr. Damilola Olawuyi is joining the Sabin Center as a David Sive Visiting Scholar. Dr. Olawuyi currently serves as the Director of the Institute for Oil, Gas, Energy, Environment and Sustainable Development at Afe Babalola University, Ado Ekiti, Nigeria. He also provides legal advice and services as an energy lawyer with the leading global law firm Norton Rose Fulbright LLP, Canada.

A prolific and highly regarded scholar, Dr. Olawuyi has published extensively on climate justice, sustainable resource governance, and the intersections of human rights and the environment. His most recent work is the forthcoming publication, The Human Rights Based Approach to Carbon Finance (Cambridge University Press, March 2016).

While at the Sabin Center, Dr. Olawuyi will work on developing the guiding principles of a corporate risk management framework through which business enterprises can identify, assess and mitigate human rights risks in climate investments and projects. Coming at a time of real need, when the 2015 Paris Climate Agreement has recognized that parties must respect, promote, and consider human rights when taking action to address climate change, Dr. Olawuyi’s research will examine practical steps through which corporations can move from “corporate consciences” on climate change to “corporate compliance” in their approach to climate investments and projects. This research will complement the Center’s other work in this field, such as our report on Climate Change and Human Rights that was published by the United Nations Environmental Programme (UNEP) in December.

Dr. Olawuyi will be the Sabin Center’s third David Sive visiting scholar. Our previous scholars included Professor David Markell of Florida State University School of Law and Professor Daniel Selmi of Loyola Law School in Los Angeles.

As a reminder: The Visiting Scholar position accepts applications on a rolling basis from legal scholars, practitioners and government officials in environmental, energy and natural resources law who are interested in joining us for a sabbatical semester, summer or other short-term visit. Further details are available here.

HUD Can Better Integrate Climate Resilience into Disaster Recovery

Posted on January 25th, 2016 by Justin Gundlach

Justin Gundlach, Climate Law Fellow, and
Channing Jones, Columbia Law School class of 2017LI flood

Justin Gundlach and Channing Jones’s article, HUD Doesn’t Need New Legislative Authority to Better Integrate Climate Change Resilience into Its Disaster Recovery Program, forthcoming in the April issue of Environmental Law Reporter, states its basic argument in its title. The article identifies and analyzes the statutes that have guided the Department of Housing and Urban Development (HUD)’s approach to disaster recovery to date, as well as forms of “soft guidance” issued by HUD for use by various stakeholders, including both HUD community development block grant disaster recovery program (CDBG-DR) program officers and the state and local officials that interact with them. Comparing these materials reveals a tension between the requirement that all projects funded by CDBG-DR “tie back” to the most recent disaster, and the logic of resilience, which holds that one should always build or rebuild with an eye to the next disaster. The article notes some signs that HUD is working to reconcile this tension—in particular, the Rebuild By Design and the National Disaster Resilience Competition both promote resilience to future disasters, and HUD’s newly formed Climate Council is well positioned to make climate resilience a routine priority for HUD. The article also suggests ways for HUD to carry this potential reconciliation forward into future disaster recovery contexts and also into other HUD programs that relate in less obvious ways to disaster recovery and resilience to climate change.

Channing Jones
Columbia Law School Class of ’17

Climate change poses substantial risks to water quality, with many impacts varying geographically. For example, in regions experiencing increased frequency and severity of extreme weather events, climate-related water quality threats may include increased runoff pollution and discharges from combined sewer overflows. In coastal areas, saltwater intrusion from sea level rise has already begun compromising low-lying freshwater resources and ecosystems. Meanwhile, in regions exposed to reduced precipitation or snowmelt, water shortages may lead to heightened pollutant concentrations in remaining flows. These impacts and others pose risks to human health, ecosystems, and other human activity.

Threats posed by climate change call for an adaptive approach to surface water quality regulation: tightening pollution limits in the face of increased risks, accounting for region-specific impacts, and building flexibility into the regulatory process. In the United States, much of this can be accomplished within the structure of the Clean Water Act and its permitting programs for point source discharges and wetlands fill activity. At the same time, the Act’s grant and financing programs can be used to address nonpoint pollution sources and to fund affirmative projects to protect water quality through adaptive measures.

This new chapter sets forth specific ways in which the Clean Water Act may be used as a climate change adaptation tool, primarily through the Act’s implementation by the Environmental Protection Agency, the Army Corps of Engineers, and state governments. The chapter concludes with a discussion of opportunities for advocate to push for adaptation measures.

Other chapters in the Legal Tools for Climate Adaptation Advocacy handbook include:


D.C. Circuit Denies Motion to Stay the Clean Power Plan

Posted on January 21st, 2016 by Jessica Wentz

This afternoon a panel of the D.C. Circuit Court of Appeals denied the motions filed by states and industry groups to stay the Obama administration’s Clean Power Plan. In a short, per curiam order, the panel stated that petitioners had failed to meet the “stringent requirements for a stay pending court review.” Accordingly, the Clean Power Plan remains in effect, and the early-stage efforts to develop state compliance plans will continue.

The panel also ordered an expedited briefing schedule with an end-date in late April. The court will hear oral argument on the merits of petitioners’ challenges on June 2.

Notably, the three-judge panel includes Judith W. Rogers (appointed by President Bill Clinton), Karen LeCraft Henderson (appointed by President George H. W. Bush) and Sri Srinivasan (appointed by President Barack Obama).

Sunset Roadless Area - Ted ZukoskiLast week marked an important shift in executive policy on fossil fuel leasing: the Interior Department announced a moratorium on new leases for coal mined from federal lands, pending a comprehensive reexamination of the decades-old coal leasing program. Interior will prepare a Programmatic Environmental Impact Statement (PEIS) to examine how the coal leasing program can be “modernized” to reflect current environmental, economic, and social considerations. The PEIS will include consideration of greenhouse gas (GHG) emissions from both the production and consumption of federally mined coal.

Interior’s announcement came on the same day that the Sabin Center submitted a comment letter on the Supplemental Draft EIS (SDEIS) for the United States Forest Service (USFS)’s proposal to exempt approximately 20,000 acres of national forest from the Colorado Roadless Rule for the purpose of coal mining and development. The SDEIS is unique in that it is the first EIS for fossil fuel extraction that contains a detailed assessment of downstream greenhouse gas (GHG) emissions and the corresponding cost of those emissions. It will likely serve as a precedent for other EISs—including the PEIS for the federal coal leasing program—and thus it is critically important for USFS to conduct an accurate assessment of GHG emissions and economic impacts.

Unfortunately, USFS appears to have underestimated the costs of GHG emissions and overestimated the benefits of increased coal production in the SDEIS. This is because:

  • USFS does not account for the cost of methane emissions, despite the fact that a Social Cost of Methane tool exists and is currently used by EPA to evaluate those costs.
  • USFS uses a “lower bound” estimate of the Social Cost of Carbon (SCC) that is inconsistent with the methodology recommended by the Interagency Working Group on the SCC and the practice of other federal agencies.
  • USFS’s calculation of nationwide economic benefits is premised on the assumption that an increase in domestic coal production will result in a shift towards greater domestic coal use, which will reduce electricity prices. But USFS does not discuss the fact that existing federal regulations—most notably, the Clean Power Plan—will require a serious reduction in the proportion of coal-fired generation in the nationwide electricity mix.

USFS also fails to discuss the inconsistency between the proposed exemption and federal policies and commitments aimed at reducing GHG emissions, such as our Intended Nationally Determined Contribution (INDC) for the Paris Agreement.

In our comment letter, we urge USFS to revise its analysis to account for these deficiencies, and to reject the proposed exception to the Colorado Roadless Rule.

Michael Burger
Executive Director

Report from three of the nation’s premier climate law centers concludes that EPA can create economy-wide, market-based program under Clean Air Act section 115 to help achieve Paris Agreement goals efficientlyCAA 115 report

A team of law professors and attorneys at three of the country’s leading centers devoted to climate change and environmental law have published a joint paper concluding that an unused provision of the Clean Air Act authorizes the U.S. Environmental Protection Agency to develop and implement an economy-wide, market-based program to reduce domestic greenhouse gas emissions and achieve the Obama Administration’s Paris Agreement pledge.  The program could be implemented without further Congressional action and would provide regulators and businesses seeking to mitigate climate change with clear benefits – increased flexibility, heightened administrative and economic efficiency, and greater effectiveness.

Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act was published by the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute on Climate Change and the Environment at UCLA School of Law, and the Institute for Policy Integrity at NYU School of Law. The report offers an in-depth analysis of Section 115, titled “International Air Pollution,” which authorizes the EPA to require states to address emissions that contribute to air pollution endangering the public health or welfare in other countries if the other countries provide the U.S. with reciprocal protections. The paper examines the legal basis for invoking the provision, and a number of critical legal issues that would confront implementation of a comprehensive nationwide program. The thorough legal analysis and considered conclusions offer a blueprint for federal action, and have been endorsed by prominent scholars at Yale Law School, New York University School of Law, University of Virginia Law School, University of California-Berkeley School of Law, and Stanford Law School.

Read the report’s executive summary here, and the full report here.

Planning for Enhanced Climate Risks: A Military Perspective

Posted on January 12th, 2016 by Jessica Wentz
 1 comment  

New White Paper – Planning for Enhanced Climate Risks: A Perspective from the Military

By Dean W. Korsak

Severe climate trends present large organizations with increased risks to infrastructure and operations. Such risks are of increasing concern to certain U.S. government and military entities. National defense operations continue throughout all phases of severe climate events and are already exposed to harsh climate environments due to the need for strategic defense infrastructure. In addition to severe events, increased severity in climate conditions such as heat, cold, and moisture present unique global operational risks. Planning for enhanced climate risks along with other threats is a new reality for the foreseeable future.

In response to increased climate risks, federal entities are beginning to incorporate these concerns into established risk assessments. The legal requirements to plan for and mitigate exposure to risks are already established. Concerns arise in the process of identifying local vulnerabilities from global climate trends. U.S. military planning in particular has demonstrated it is possible to identify, plan for, and mitigate complex threats like operating through a nuclear attack. Severe climate conditions present a more probable threat than a nuclear attack.

Maintaining a defensive posture against climate risks is only part of the concern. U.S. military assets operate globally to provide the U.S. Government with sovereign options. Climate risks will present crises which lead to humanitarian responses. Combatant commands around the globe are planning for contingencies due to enhanced climate risks. Operational concerns extend beyond maintaining humanitarian response capabilities. For example, expanding operations in the Arctic region is a task that did not previously exist. Understanding climate trends and local vulnerabilities is a new competency military organizations will need to maintain.

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January 2016 Update to the Litigation Charts

Posted on January 11th, 2016 by Jessica Wentz

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

Here are the additions to the litigation charts (Update #82).


Fourth Circuit Issued Rationale for Barring Deposition of EPA Administrator

On December 8, 2015, the Fourth Circuit Court of Appeals issued an order setting forth its rationale for granting the United States Environmental Protection Agency’s  (EPA’s) petition for writ of mandamus precluding the deposition of EPA Administrator Gina McCarthy in a case pending in district court in West Virginia. The case, brought by Murray Energy Corporation and its affiliates, alleges that EPA has failed to comply with Section 321(a) of the Clean Air Act, which provides that EPA shall conduct evaluation of job loss and employment shifts that may result from administration and enforcement of the Clean Air Act. The Fourth Circuit was not convinced by the district court’s finding that alleged conflicts between McCarthy’s testimony before Congress and EPA’s representations to the court constituted “extraordinary circumstances” warranting deposition of a high-ranking official. The Fourth Circuit saw no contradiction in EPA’s position that would support the extraordinary circumstance finding and also was not persuaded that there was no alternative to deposing McCarthy. The Fourth Circuit also disagreed with the district court’s finding that EPA’s “apparent refusal” to comply with Section 321(a) was prima facie evidence of wrongdoing. The Fourth Circuit said that there was no clear misconduct. In re McCarthy, No. 15-2390 (4th Cir. corrected opinion Dec. 9, 2015): added to the “Challenges to Federal Action” slide.

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Sabin Colloquium on Innovative Environmental Law Scholarship
Columbia Law School
New York, New York
May 2​6-27, 2016​

This 4th​ Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 26, and all day on May 27) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year’s competition and participating in the workshop will be:

  • ​Robin Kundis Craig — ​University of Utah College of Law
  • ​John Dernbach — ​Widener University Law School
  • Michael Gerrard — ​Columbia Law School
  • ​Hari Osofsky — University of Minnesota Law School
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