By Jennifer Danis

On Tuesday, June 30, 2020, the D. C. Circuit Court of Appeals, ruling en banc, held that the Federal Energy Regulatory Commission’s use of “tolling orders” could not block judicial review of its gas infrastructure certifications. The Commission created “tolling orders” to grant itself additional time to answer landowners’ pleas for rehearing.  But these orders also locked the courthouse doors for landowners seeking judicial review of Commission orders. Notably, after tolling time to respond to landowners’ pleas for rehearing, the Commission routinely denied them. The D.C. Circuit Allegheny Defense decision is a first important step towards reigning in the inimical practices the Federal Energy Regulatory Commission deploys when certifying gas infrastructure.

FERC first started using tolling orders as a way to circumvent the Natural Gas Act’s 30-day deadline to act on a party’s request to rehear its decisions. The Commission would “grant” the rehearing request for the limited purpose of avoiding the statutory deadline, but take no further action to actually consider the challenges raised in that request. As the Allegheny Defense court said, a tolling order is “not a grant of rehearing of the challenged order; it is kicking the can down the road.” Courts initially tolerated the Commission’s use of tolling orders in the context of rate cases, where delayed judicial access doesn’t result in land condemnation and environmental destruction.  Over time, the Commission began to use them for pipeline and other natural gas infrastructure certifications, eventually coming to rely on them for 99% of these approvals, as the court noted today.Tolling orders have allowed the Commission to ignore landowners’ rehearing requests for more than ten times the statutorily allowed period, even as the Commission’s certifications remained in place.

During this legal purgatory, landowners’ property has been condemned and their land torn up for pipelines, because gas infrastructure certifications are treated by courts and the Commission as final for condemnation and construction purposes.  But when landowners sought judicial review of whether the Commission’s fossil fuel certifications were rightly issued, both the Commission and the courts (including the D.C. Circuit) told landowners that the orders were not final for purposes of judicial review. So, the certification was final enough to condemn private property and build a pipeline, but not final enough to challenge in court. The D.C. Circuit recognized the absurdity of this situation: “Tolling orders, in other words, render Commission decisions akin to Schrödinger’s cat: both final and not final at the same time.”

That ended yesterday. In a strongly worded opinion, the court held that “the Commission has no authority to erase and replace the statutorily prescribed jurisdictional consequences of its inaction.”And the court made clear it will open its doors to landowners seeking judicial review at the end of the statutory 30-day period,overruling prior law that had condoned the Commission’s use of tolling orders.  Importantly, the court found that it owed no Chevron deference to the Commission’s interpretation of the Gas Act’s judicial review provision.

Landowners have farther to go to remedy injustice from pipeline certifications and resulting condemnation processes.  Judge Griffith, joined by Judges Katsas and Rao, wrote separately to give additional guidance on “possibilities for curtailing the remaining factors” driving “unfairness” to landowners.  Their concurrence points to the limitations of the court’s ruling, because it does not preclude district courts, where pipeline condemnation actions take place, from allowing them to proceed pending grants of rehearing. But together with the majority opinion, the concurrence lays out a roadmap to district courts effectuating such condemnations for restoring the balance of justice.

The D.C. Circuit’s opinion also bodes well for percolating challenges to another novel Commission practice: amending gas pipeline certifications while those same certifications are being challenged in court.  In Allegheny Defense, the D.C. Circuit made abundantly clear that the Gas Act’s rehearing and review provisions, 15 U.S.C. § 717r(a) and 15 U.S.C. § 717r(b), trigger exclusive jurisdiction when the agency files its record of review of the pipeline application.  The court delineated the bounds of Commission authority, drawing a clear line at the filing of the underlying administrative record with the reviewing court, “which is typically forty days after the petition is served on the Commission.”

So far, the Commission has ignored this statutory limitation, acting to modify its orders while they are being litigated in court, after the administrative record has been filed.  New Jersey Conservation Foundation and The Watershed Institute, among others, have flagged that practice as deeply flawed in pending pipeline projects.  For example, earlier this year, the Commission opened a docket to consider an “amendment” to its 2018 PennEast Pipeline Certificate Order, PennEast Pipeline Co., LLC, 162 FERC ¶ 61,053 (2018).[1]But this order is being litigated in the D.C. Circuit Court of Appeals, and the Commission filed the administrative record with the court on October 24, 2018. SeeUSCA Document #1756805, filed in D.C. Circuit Case #18-1128.  This practice doesn’t comport with the reasoning in the court’s Allegheny Defense ruling.   The decision took an important step towards ensuring the Commission hews closer to the Gas Act’s requirements.

[1]The author represents New Jersey Conservation Foundation and The Watershed Institute in challenges to the PennEast Pipeline projects.

Sabin Center Releases its Winter/Spring 2020 Semi-Annual Report

Posted on June 23rd, 2020 by tiffanychalle


The Sabin Center for Climate Change Law posted its Winter/Spring 2020 Semi-Annual Report, which includes a summary of the Center’s key activities between December 2019 and May 2020.

It is available for download here.

Below are some key highlights from the report:

  • In light of the novel coronavirus pandemic, the Sabin Center has partly shifted its focus to how COVID-19 is affecting climate change and policies to deal with it.
  • The Sabin Center launched a new Model Laws for Deep Decarbonization in the United States website, providing legal tools needed to transition away from fossil fuels.
  • The Renewable Energy Legal Defense Initiative continues to represent community groups and local residents who support renewable energy development in their communities including New York’s first offshore wind farm, a New York-based solar facility and an onshore wind farm in Ohio.
  • The Cities Climate Law Initiative’s senior fellow Amy Turner worked with city officials across the U.S., as well as with staff of the Rocky Mountain Institute and the World Resources Institute, on various issues including virtual power purchase agreements and local natural gas bans.
  • The Center submitted comments and briefs to numerous agencies, including the EPA and DOE.
  • On April 21, the D.C. Circuit of Appeals decided that the EPA acted illegally when it banned scientists with agency grants from serving on its scientific advisory boards. The Environmental Law Clinic and the Sabin Center executive director Michael Burger represented two scientists and partnered with attorneys at Earthjustice to bring the case.
  • The Center sponsored/co-sponsored and participated in numerous events including several “Earth Day 50” virtual events.
  • Faculty director Michael Gerrard and the Sabin Center were honored with awards from the New York State Bar Association Environment and Energy.
  • Executive director Michael Burger received an Amicus Service Award from the International Municipal Lawyers Association.
  • The Center published books and papers on a variety of topics. These include:



To learn more about our work, our Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were interviewed, quoted or mentioned, read the report here.

By Susan Biniaz*

International environmental law covers a wide range of subjects, is extremely detailed, and evolves very rapidly.  No wonder it is challenging for practitioners to keep up with developments.  An expert in marine pollution regimes may be unaware of the latest initiatives on forest conservation.  Given how hyper-specialized the climate world has become, an expert on mitigation may be only mildly aware of recent advances in adaptation.  And neither may be in a position to keep up with innovations in international law more broadly.

Deep knowledge has its advantages, but also some drawbacks.  When we are faced with the need to address a new or emerging issue, our set of tools may be limited by our narrow specialties; we reach for solutions that are familiar but not necessarily the most effective. Moreover, when we do come up with an interesting solution to address a specific problem, it tends to remain hidden from those dealing with other problems – even if it might be useful to them.

Thinking about this situation, I have been wondering why we don’t flip things around. Rather than start with a particular environmental challenge (say, what kind of international instrument should be developed to tackle marine plastics), we could start with solutions that have been used to address other international problems and ask whether there are environmental problems such solutions might be effective in addressing.

“Idea arbitrage” is not an original thought.  Rather, I came across it several years ago in Why Not?, a provocative book by Yale professors Barry Nalebuff and Ian Ayres. There the topic was economics, and the authors were encouraging entrepreneurs to work backwards, i.e., to look at an existing solution to one problem and see if it might apply to a different problem.  (I think about the concept every time I go through a tollbooth, one of the book’s examples of a solution — self-regulation — that might apply elsewhere.)

Application of “idea arbitrage” to international environmental problems could be a useful project, one that practitioners and other experts might combine forces on, perhaps in conjunction with the upcoming 50thanniversary of the original Stockholm Conference.

During my time as a State Department lawyer, I had the opportunity to assist policymakers in developing approaches to a wide range of international issues. To get the ball rolling, this paper draws on two such approaches, one an international agreement from the environmental area (the Paris Agreement on climate change), the other an international arrangement from a completely different field (the Contact Group on Somali Piracy).  The hope is that they might offer transferable problem-solving techniques for those grappling with various environmental challenges.

Read the full working paper here.

*Susan Biniaz is a former Deputy Legal Adviser at the U.S. Department of State. She was the lead climate lawyer, and a negotiator, from 1989 until early 2017.  Since leaving the Government, she has been teaching at Yale Law School and the Yale Jackson Institute for Global Affairs. She has also been a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.

June 2020 Updates to the Climate Case Charts

Posted on June 8th, 2020 by tiffanychalle

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



Ninth Circuit Ruled for California Cities and Counties on Questions of Whether Climate Lawsuits Against Energy Companies Belonged in State or Federal Court

In two opinions, the Ninth Circuit Court of Appeals ruled against energy companies that had removed to federal court cases brought by California local governments seeking compensation for climate change impacts. In an appeal by Oakland and San Francisco of a district court’s denial of remand in, and dismissal of, their suits, the Ninth Circuit reversed the federal district court’s determination that federal-question jurisdiction provided a basis for removal. The Ninth Circuit remanded for the district court to determine whether there was an alternative basis for jurisdiction. In the energy companies’ appeal of a district court’s remand order in cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit concluded first that its jurisdiction to review was limited to whether the cases were properly removed under the federal-officer removal statute and then that the companies had not proved that federal-officer removal could be invoked.

In the Oakland and San Francisco decision, the Ninth Circuit held that the cities’ state-law claim for public nuisance did not arise under federal law because no exception to the “well-pleaded complaint rule” applied. First, the Ninth Circuit found that the cities’ nuisance claim did not raise “a substantial federal question.” The court noted that the companies had contended that the nuisance claim implicated “federal interests” such as energy policy, national security, and foreign policy, but the court said this was not sufficient to establish federal-question jurisdiction even though the question of whether the companies should be held liable and be compelled to abate harms was “no doubt an important policy question.” Second, the Ninth Circuit rejected the companies’ argument that the Clean Air Act completely preempted the cities’ public nuisance claim. The Ninth Circuit also rejected the companies’ argument that the cities waived their arguments in favor of remand by amending their complaint to add a federal common law claim; the Ninth Circuit said the cities’ reservation of rights was sufficient. The Ninth Circuit also rejected the companies’ contention that improper removal could be excused based on “considerations of finality, efficiency, and economy.” The Ninth Circuit concluded that dismissal for failure to state a claim at the pleading stage did not warrant departure from the general rule that a case must be fit for federal adjudication at the time of removal. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir. May 26, 2020).

In the decision in the cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit rejected the energy companies’ arguments in favor of plenary review of the remand order. First, the Ninth Circuit was not persuaded by the companies’ contention that the district court had remanded based on a merits determination, not based on subject matter jurisdiction. Second, the Ninth Circuit found that under its existing precedent, it had jurisdiction to review the issue of federal-officer removal but not the portions of the remand order that considered seven other bases for removal. The Ninth Circuit concluded that Congress’s enactment of the Removal Clarification Act of 2011 did not abrogate this precedent. The Ninth Circuit also rejected the companies’ argument that it was not bound by its own precedent because the decision was not well reasoned; the court said it remained bound by the precedent “until abrogated by an intervening higher authority.” The Ninth Circuit then conducted a de novo review of the issue of subject matter jurisdiction under the federal-officer removal statute. The appellate court found that the energy companies had not proven by a preponderance of the evidence that they were “acting under” a federal officer in any of the three agreements with the government on which the companies relied for federal-officer removal jurisdiction. The Ninth Circuit therefore affirmed the district court’s determination that there was no federal-officer removal jurisdiction and dismissed the remainder of the appeal for lack of jurisdiction. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. May 26, 2020).

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Jennifer Danis Joins the Sabin Center as New Senior Fellow

Posted on June 5th, 2020 by tiffanychalle


This week, Jennifer Danis joins the Sabin Center as senior fellow, bringing her significant experience in environmental and energy law to the team. She will be exploring regional opportunities to contribute to the forward momentum that aggressive climate laws and goals have created, including reducing reliance on fossil fuel use. As states have begun to enshrine robust clean energy goals within newly enacted or amended state laws, the thornier questions of how to achieve those emissions reductions targets remain unanswered. Ms. Danis will be focusing on creating sustainable legal frameworks to support those state goals. She continues to be Of Counsel to Morningside Heights Legal Services.

Previously, Ms. Danis worked as a staff attorney and clinical instructor at Columbia Law School’s Environmental Law Clinic. In that capacity, she advocated on behalf of the Clinic’s clients for sustainable energy choices in the region, developing and implementing novel legal theories to prevent the proliferation of gas pipeline infrastructure. She also has significant experience working with a broad range of national energy advocates and experts to help document skewed natural gas market economics, the economics of deep decarbonization, and ecological, health and safety impacts from fossil fuel infrastructure. Ms. Danis has testified on these issues before congressional committees, and helped nonprofit clients advance legislation to directly address these conflicts. She also served as the Senior Staff Attorney for Eastern Environmental Law Center’s Energy Infrastructure program. Prior to her energy work at EELC, she was of counsel to Bradley M. Campbell, LLC, where she used legal and scientific tools to address toxic contaminants under the Resource Conservation and Recovery Act. Working as an attorney at the Natural Resources Defense Council, Ms. Danis researched complex litigation strategies to address legacy pollution of regional waterways. She successfully advocated for the preservation of 600 wetlands acres in the Hackensack Meadowlands. Her interest in environmental law started while clerking in the United States Department of Justice, Environment & Natural Resources Division, in the Indian Resources Section, working on conflicts related to water compacts, as well as issues related to the Cherokee constitutional crisis. She also serves on the Conservation and Research Committee of the New Jersey Audubon Society. Ms. Danis began her law career as a litigator at Kirkland & Ellis in New York, where she worked on various commercial litigation matters, including intellectual property, securities fraud and contractual disputes. She is an alumna of University of Pennsylvania and Boston University.

By Romany Webb and Hillary Aidun

On Monday, June 1, the Sabin Center submitted comments opposing a Department of Energy (DOE) proposal to categorically exclude natural gas export approvals from environmental review under the National Environmental Policy Act (NEPA). NEPA’s implementing regulations allow federal agencies to categorically exclude actions if, and only if, they “do not individually or cumulatively have a significant effect on the human environment.” As we explain in our comments, DOE has not undertaken sufficient analysis to determine whether natural gas export approvals meet that requirement. In its proposal, DOE claims that the “transportation of [exported] natural gas by marine vessel normally does not [have] significant environmental impacts,” but ignores other ways in which natural gas exports may impact the environment. Most notably, DOE ignores impacts associated with induced natural gas production and use, both of which result in significant greenhouse gas emissions that must be considered under NEPA.

DOE claims that it is not required to consider the greenhouse gas emissions associated with upstream natural gas production and downstream use because it has “no authority to prevent” those emissions. However, as we explain in our comments, that is not the correct test. The courts have made clear that an agency’s obligation to consider reasonably foreseeable downstream emissions turns on whether it has legal authority to act on information about those emissions. DOE has such authority when approving natural gas exports. Indeed, as DOE has itself recognized, its approval decision must be based on a consideration of upstream and downstream environmental impacts (among other things). DOE has, therefore, previously analyzed upstream and downstream impacts as part of its environmental review of natural gas export approvals. DOE now claims that such analysis is not required, but nevertheless points to estimates of lifecycle greenhouse gas emissions associated with natural gas exports, which it says show that the use of exported natural gas in Europe and Asia will not increase emissions. As we explain, however, the estimates are fatally flawed because they significantly underestimate methane emissions during natural gas production and improperly fail to account for the rise of renewable energy in overseas markets.

As well as failing to consider key environmental impacts, DOE has also impermissibly segmented natural gas exports approvals from other connected actions, such as the approval of export terminals, which falls under the authority of the Federal Energy Regulatory Commission (FERC). As we explain, because the DOE and FERC actions are connected, they must be analyzed together in a single environmental impact statement. DOE’s proposed categorical exclusion for export approvals would prevent this and thus inappropriately limit the scope of review under NEPA.

Read our full letter to DOE here.

By Augusta Wilson*

On Monday, May 18, the Climate Science Legal Defense Fund (CSLDF) and the Sabin Center for Climate Change Law at Columbia Law School submitted a joint letter to the Environmental Protection Agency (EPA) in response to the agency’s Supplemental Notice regarding its proposed “Strengthening Transparency in Regulatory Science” rule.

When the EPA proposed this rule in 2018, we at CSLDF expressed deep concern that the rule would arbitrarily restrict the use of scientific research in agency decision-making in favor of industry interests. The Supplemental Notice still fails to address this point and considerably expands the scope of the proposed rule. As now proposed, the rule would prevent the EPA from considering vital scientific and medical studies on issues central to the agency’s mission, such as climate change, air pollution, and environmental toxins.

The rule would also allow the EPA to disregard critical scientific studies that the agency finds inconvenient to its politicized, anti-regulation agenda. As we write in our letter to the EPA:

“EPA has not provided any convincing justification for the proposed rule, which would result in the Agency ignoring or downgrading significant amounts of sound and relevant science in its decision-making. The language in the [Supplemental Notice] suggests that EPA is being influenced by inappropriate considerations, such as making it easier for special interests to call science into question. Moreover, in the [Supplemental Notice], EPA has not only failed to address the significant concerns expressed by numerous commenters about the negative effects of the proposed rule, but has—again without providing any justification—expanded its scope in a manner that exacerbates these problems. Finally, neither the 2018 Proposed Rule nor the [Supplemental Notice] identifies any valid statutory basis for EPA’s authority to promulgate the Proposed Rule.

We oppose this rule, which undercuts the fundamental purpose of EPA’s mission to protect human health and the environment, and we urge the EPA not to move forward with it.

Read our letter to the EPA here.

* Augusta Wilson is a staff attorney at CSLDF. This post originally appeared on CSLDF’s blog here.

By Michael B. Gerrard

Credit: Transcontinental Gas Pipe Line Co

The New York and New Jersey environmental departments issued decisions on Friday, May 15 denying approvals for a natural gas pipeline.  Though the decisions were based primarily on the adverse impacts that construction of the pipeline would have on water quality and wetlands, they also demonstrated the force of New York’s new Climate Leadership and Community Protection Act(CLCPA), and New York’s resolve to phase out the use of natural gas.

Transco, a subsidiary of the Tulsa-based Williams Companies, proposed to build a pipeline carrying natural gas (mostly from hydraulic fracturing in Pennsylvania) under wetlands and Raritan Bay in New Jersey, then under lower New York Bay, and connecting with an existing pipeline about three miles offshore of Rockaway Peninsula in Queens.  National Grid would use the gas to serve customers in Brooklyn, Queens and Long Island.

In the bays the pipeline would have been built in a trench four feet under the water bottom in sediments that are contaminated with mercury, copper and other pollutants.  The construction would have stirred up the sediments and released the pollutants.

Interstate natural gas pipelines are primarily regulated by the Federal Energy Regulatory Commission (FERC), which approved this pipeline on May 3, 2019.  However, Section 401 of the Clean Water Act provides that before certain work can be done in or under the waters of the United States, the states must certify that the work would not impair the state’s waters.

In its May 15 decision, the New York Department of Environmental Conservation (DEC) denied the needed water quality certification.  DEC had received over 16,000 written public comments on the application. The decision relied primarily on the impacts that the dispersed chemicals would have on a 1,000-foot wide corridor that included a critical resource area for hard clams. DEC found further that because mercury bio-accumulates, the adverse effects could also migrate up the food chain.

DEC did not stop there, however.  Relying on a procedure that allows consideration of “qualitative assessments” relevant to proposed projects, DEC also looked at the pipeline’s impact on greenhouse gas emissions, which in the decision’s words “cause climate change and thus indirectly impact water and coastal resources.”  DEC found, “GHG emissions associated with the Project include those from the full lifecycle of natural gas that will be transported through the Project. This includes upstream emissions, GHG emissions associated with the construction and operation of the Project, and downstream emissions.”  DEC explicitly stated that its analysis considered leakage of methane at the fracking sites in Pennsylvania, emissions where the gas is burned in power plants and buildings in Brooklyn, Queens and Long Island, and any emissions in between. The look at out-of-state upstream emissions is especially interesting, as these are not usually considered in a state’s GHG emissions inventories, but it appears New York is adopting a different accounting method. The decision states, “because natural gas that is extracted outside of the State would be transmitted through the Project to serve National Grid customers in New York City and Long Island, upstream GHG emissions associated with the Project would be considered part of Statewide GHG emissions” under the CLCPA. (FERC does not consider upstream emissions in its own decisions under the National Environmental Policy Act and the Natural Gas Act.)

DEC then included this very important paragraph in its decision:

[I]n order to achieve the State’s critical and ambitious climate change and clean energy policies, the State needs to continue its ongoing transition away from natural gas and other fossil fuels. While the Department recognizes that many building assets in the State currently rely on natural gas for heating and other energy uses, the continued long-term use of fossil fuels is inconsistent with the State’s laws and objectives and with the actions necessary to prevent the most severe impacts from climate change. Therefore, the State must continue to support the ongoing transition to renewable and other clean sources of energy, as it works to ultimately eliminate all fossil fuel combustion sources that cannot be counterbalanced by guaranteed permanent carbon sequestration. Without appropriate alternatives or GHG mitigation measures, the Project could extend the amount of time that natural gas may be relied upon to produce energy, which could in turn delay, frustrate, or increase the cost of the necessary transition away from natural gas and other fossil fuels.

In short, DEC said, “”[t]he use of natural gas … to produce electricity would be inconsistent with” the requirements of CLCPA, which “will ultimately require a transition away from natural gas and other fossil fuels to produce energy.”

The scope of states’ authority under Section 401, particularly when it is used to block federally-approved projects such as this pipeline, has been the subject of intense controversy and litigation. In August 2019 the Environmental Protection Agency proposed to revise its regulations under Section 401 in a way that would ease the approval of energy projects. These revisions have not gone into final form.

The pipeline at issue here is a key part of a larger controversy.  In May 2019 National Grid imposed a moratorium on new natural gas connections.  Many observers felt that the moratorium was a tactic by National Grid to pressure New York to approve the pipeline. That led to an uproar, Governor Andrew Cuomo threatened to revoke the company’s franchise, and the Public Service Commission launched an enforcement action related to the moratorium. Pursuant to the resulting settlement agreement, National Grid issued a report on May 8, 2020 that identified enhancements to existing infrastructure combined with incremental energy efficiency and demand response measures as a way to meet the projected gap between demand and supply of natural gas even without the pipeline.  DEC declared, “Critically, as compared to the project, National Grid concludes that this alternative is less environmentally impactful, in terms of water quality, GHG emissions and otherwise, and more consistent with the requirements” of CLCPA.

Meanwhile, Transco had applied to the New Jersey Department of Environmental Protection (DEP) for a permit under its Freshwater Wetlands Protection Act for the portions of the pipeline that would be under New Jersey wetlands.  Within hours after New York DEC issued its decision, DEP issued its own decision denying the wetlands permit.  The decision recounted that New Jersey’s wetlands regulations require applicants “to demonstrate that there is a compelling public need for the proposed activity.” DEP found that since New York, which would be the “ultimate beneficiary” of the pipeline, decided it did not need the gas, and without the connection to the Rockaways there would be no place for the gas to go, the “application has been rendered effectively moot” and issuance of the permit “would be futile.”

We will soon see if Transco challenges the New York and New Jersey decisions in court.  Whatever happens, DEC’s decision is a strong declaration that the department is serious about phasing out most or all use of natural gas in the state, blocking the construction of new natural gas infrastructure, and reducing GHG emissions in accord with the mandates of the CLCPA. The decision also highlights the importance of swiftly implementing not only the CLCPA, but also New York’s brand-new law on siting renewable energy facilities, which will be needed in large numbers to substitute for natural gas-fired electric generating plants and to power the electric vehicles that will replace those with gasoline and diesel engines.

May 2020 Updates to the Climate Case Charts

Posted on May 8th, 2020 by tiffanychalle

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



D.C. Circuit Said EPA Decision to Expand Partial Vacatur of HFC Prohibition Required Notice and Comment

In a split decision, the D.C. Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA’s) 2018 rule in which EPA decided to expand the D.C. Circuit’s partial vacatur in Mexichem Fluor, Inc. v. EPA of a 2015 rule barring replacement of ozone-depleting substances with hydrofluorocarbons (HFCs), which are powerful greenhouse gases. In Mexichem, the D.C. Circuit vacated the 2015 rule to the extent that it prohibited continued use of HFCs by companies that previously switched to HFCs from an ozone-depleting substance. EPA’s 2018 rule also suspended the prohibition for companies currently using ozone-depleting substances. In ruling on the challenge to the 2018 rule, the D.C. Circuit concluded that the rule was not merely a rule that interpreted Mexichem’s partial vacatur but a legislative rule that “altered the decision’s legal effect” and required notice-and-comment rulemaking. As a threshold matter, the court found that Natural Resources Defense Council (NRDC) and one of the state petitioners (New York) each had standing based on potential injuries from climate change which were caused in part by HFC emissions and which would be redressed by restrictions on such emissions. In addition, the court found that NRDC satisfied requirements for representational standing. The court also rejected the contention that the 2018 rule was not final action. The court noted that the parties agreed that the 2018 rule was the consummation of EPA’s decision-making process, but that EPA and the intervenors argued that it was Mexichem—not the 2018 rule—that determined any legal rights or obligations or effected legal consequences. The D.C. Circuit disagreed, finding that the 2018 rule changed the rights and obligations of companies that continued to use ozone-depleting substances compared to the status quo created by Mexichem. Similarly, in determining that the 2018 rule was legislative and not interpretive, the majority found that the 2018 rule had “independent effect beyond that compelled by Mexichem” and therefore reflected EPA’s “intent to exercise its delegated legislative power.” The dissenting judge would have found that the 2018 rule was an interpretive rule because it “did no more than articulate the EPA’s view of what was required by Mexichem in the ‘near term’ and pending further rulemaking.” Natural Resources Defense Council v. Wheeler, No. 18-1172 (D.C. Cir. Apr. 7, 2020).

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It’s Time for a Carbon Tax—Now

Posted on April 29th, 2020 by tiffanychalle

Guest blog by Andrew Ratzkin*

The time for a carbon tax is now.  The coronavirus hasn’t just created the opportunity; it’s created the imperative.

The Imperative.  State budgets are in crisis.  Revenues—whether derived from sales taxes, individual and corporate income taxes, capital gains, dividends, tolls, airport fees, mass transit fares, hotel stays, casinos, real estate transactions, you name it—are in free fall.  While expenses—health care, procurement of medical equipment like ventilators, masks and gowns, unemployment insurance, police overtime, national guard deployments, emergency services, and more—are exploding.

Already draconian cuts to essential services like education and Medicaid—in the middle of a healthcare crisis, no less—are planned because, unlike the Federal government, states cannot run deficits.  States need new revenue sources, and fast.  In New York, Governor Cuomo recently projected the impending budget gap to grow to $15 billion after all the coronavirus bills come due, potentially requiring a 50% cut in education and other spending if lost revenue is not replaced.[1]  The prospect of the Federal government filling this void seems doubtful at best.

State-level or regional carbon taxes could be an important part of the answer.  By one calculation, a state tax of, say, $35 per ton of carbon emissions, could raise approximately $4.4 billion per year for New York[2]—not the entire answer, but potentially a big part of the solution.  Until recently, many advocates favored revenue-neutral carbon taxes—meaning that proceeds would be returned to taxpayers by rebate or other offsets; that policy and political calculus has now been superseded by events.

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This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

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