Teresa Parejo-Navajas, Associate Professor of Law (Carlos III de Madrid University)

To download the full paper, click here.

Improving energy efficiency in existing buildings represents a great opportunity for reducing greenhouse gas emissions. Numerous measures to increase efficiency and decrease emissions have been put in place in cities all around Europe and in the US. But there are some that stand out from the rest, like New York City (NYC), which is a remarkable example of commitment to the fight against climate change. This is due to the city’s special characteristics, with a great urban density and a large percentage of greenhouse gas emissions coming from its aged building stock, which has urged its authorities to take important measures in order to eliminate (or at least diminish) its adverse effects. However, there is always room for improvement. Thus, a comparative study between some of the most successful measures developed in selected European cities and NYC, will be aimed at giving some useful elements to legal professionals in order to improve the existing energy efficiency measures for greening the existing building stock in any city around the world.

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In the newest variation of legal attacks on climate science, tandem lawsuits were filed against climate science blogger and computer scientist John Mashey,[1] in retaliation for his work to uncover academic misconduct by several researchers who disputed widely-accepted findings on global warming.  (There is a 97% scientific consensus that man-made climate change is happening.[2])  Two of these researchers, Edward Wegman and Yasmin Said, served Mashey with complaints this spring, claiming that Mashey’s work connecting them with plagiarism, falsifications, errors, and funding misuse[3] constituted “tortious interference with contract” and “conspiracy” — and claiming that because of this, he owed them millions of dollars in damages.

Wegman and Said were among the authors of the 2006 “Wegman Report,” which has since been discredited by Mashey[4] and[5] many[6] others,[7] and which was originally commissioned by Rep. Joe Barton (R-TX) as part of a Congressional investigation of climate scientists.[8]  Subsequent work by Wegman and Said, based on the Wegman Report, was later retracted for plagiarism[9] and the investigations themselves were criticized as “political intimidation.”[10]

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Legal Tools for Climate Adaptation Advocacy: Securities Law


Posted on May 21st, 2015 by Jennifer Klein

gavelCorporations today face increasing risks from climate change. These risks threaten not only the operations and infrastructure of the corporations, but ultimately their long-term financial soundness as well. For example, as has been noted with respect to the oil and gas industries, refineries often do not have high profit margins because most of the profits come from extraction. Therefore, refineries, which frequently are near the coasts and vulnerable to increasing sea levels and storms surges, could suffer material financial losses if their operations were disrupted. To prevent this physical infrastructure or operational damage, as well as the attendant financial losses, corporations need to adapt and implement measures to address these risks.

Nina Hart has written a paper focusing on how governments and investors can use financial disclosure as a tool to incentivize or pressure publicly traded companies to undertake climate change adaptation measures. The chapter explains why financial disclosure is a powerful tool, describes the relevant regulatory schemes, and outlines both regulatory or enforcement and market-based strategies for improving corporate responses to climate change.

Nina Hart is a recent graduate of Columbia Law School.

A FIP Primer for the Clean Power Plan


Posted on May 12th, 2015 by Jessica Wentz

smoke-stacksMuch has been made of late about EPA’s authority to develop federal implementation plans (FIPs) to achieve the state-based GHG emissions reduction targets the agency is preparing establish under Clean Power Plan. Led by Senator Mitch McConnell, objectors have loudly urged states not to submit plans at all. Instead, they have argued, states need not be concerned about EPA imposing FIPs on their states. In turn, EPA has announced that it will release a draft federal implementation plan this summer. (An earlier response from the Sabin Center to Sen. McConnell’s arguments is available here.)

Since 1970, Section 110 the Clean Air Act has required EPA to implement a FIP if a state implementation plan (SIP) fails to include measures that will assure attainment of the national ambient air quality standards. The FIP/SIP dynamic under Section 110 is well-established. The analogous provisions of Section 111 of the Act, by contrast, which give the Administrator “the same authority” as she would have under Section 110 to prescribe a plan where a state “fails to submit a satisfactory plan” to meet standards set under Section 111, are new regulatory terrain.

Because FIPs are not well-known, Daniel Selmi, a Visiting Scholar at the Center and Professor of Law at Loyola Law School, Los Angeles, has prepared a “primer” that answers basic questions about FIPs. The essay is organized into three parts: (1) the circumstances under which EPA will promulgate a FIP under Section 111; (2) the content and effect of such a FIP; and (3) the enforcement of a FIP. The discussion is written in an accessible, plain language style that will be understandable to both lawyers and non-lawyers.

Government Found Liable for Hurricane Katrina Flooding


Posted on May 11th, 2015 by Jennifer Klein

Jennifer M. Klein, Esq.
Associate Director & Fellow

Flooding from Hurricane Katrina constitutes a taking of property without just compensation by the United States government, according to a recent decision from the United States Court of Federal Claims in Saint Bernard Parish Government, et al., v. The United States. Judge Susan Braden found that the Army Corps of Engineers’ (the Corps) negligent design and failure to maintain the Mississippi River Gulf Outlet (MR-GO), a canal constructed by the Corps in the 1950s, exacerbated flood damage in parts of New Orleans. The increased flooding, although temporary, wrongfully deprived land owners of the use of their property. Judge Braden’s decision relied heavily on a 2012 Supreme Court case, Arkansas Game and Fish Commission v. United States, which held that temporary flooding caused by government action is not categorically exempt from Takings Clause liability.

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MAY 2015 UPDATE TO CLIMATE LITIGATION CHARTS


Posted on May 5th, 2015 by Jennifer Klein

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 latest additions to the Climate Case Chart

Update #74 (May 5, 2015)

FEATURED DECISION

D.C. Circuit Dismissed Challenges to Car and Truck Greenhouse Gas Standards

The D.C. Circuit dismissed challenges to federal greenhouse gas emissions and fuel economy standards for cars and trucks. The regulations were issued by the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA). The car standards were finalized in 2010, and the D.C. Circuit had already upheld them once in 2012. The truck standards were finalized in 2011.  The D.C. Circuit said the petitioners who claimed that EPA had violated the Clean Air Act by failing to provide the car and truck regulations to the Science Advisory Board prior to publication had not established standing. The court said the plaintiffs had not demonstrated causation or redressability for the alleged injury—increased cost to purchase vehicles—because even in the absence of the EPA standards, the “substantially identical” NHTSA regulations would continue to apply. The court also dismissed challenges to the truck standards brought by “a business that promotes the use of vegetable oil in place of traditional diesel fuel”; the company alleged that the standards made its products economically infeasible and claimed that the regulations were arbitrary and capricious because, among other reasons, they ignored lifecycle greenhouse gas emissions. The D.C. Circuit said it did not have original jurisdiction over the company’s claim against NHTSA because under NHTSA regulations, the company’s request for reconsideration of the truck standards had been deemed a petition for rulemaking; jurisdiction for review of denials of petitions for rulemaking is in the district courts. With respect to the claim against EPA, the D.C. Circuit said that the company did not fall within the zone of interests protected by the statute. Delta Construction Co. v. EPA, Nos. 11-1428, 11-1441, 12-1427; California Construction Trucking Association, Inc. v. EPA, No. 13-1076 (D.C. Cir. Apr. 24, 2015): added to the “Challenges to Federal Action” slide.
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TIN coverBy Michael Burger
Executive Directo
r

This past weekend the Italian coast guard reported saving some 3,700 people at sea on a smuggler’s boat. This was but one boatload of the more 30,000 people who have fled Libya this year and attempted to migrate across the Mediterranean to Italy. An estimated 1,750 people have died along the way. The situation is dire; the stories are tragic. But it is tiny compared to what we will see in coming decades, when hundreds of millions of people are expected to lose their homes, their communities, even their national homelands to sea level rise, desertification and other climate change impacts.

As with the Libyan migrants, the international community is not prepared to deal with the realities of climate displacement. There appears to be little understanding, far less agreement, as to how to resolve the profound questions climate displacement raises: Where will these people go? Who will take them in, and how many of them? What will they do when they get there? What rights will they retain? What rights will they enjoy? What will their citizenship be? The issue has arisen in UNFCCC negotiations, where it has been grouped with other contentious issues under the umbrella of loss-and-damage. Yet, even as anticipation builds for a grand agreement in Paris, there is little expectation that leaders will hash this out.

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factorysmokeOn numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by Senator McConnell in his letter. The essay points out that the letter erroneously describes both EPA’s proposed regulations and the agency’s legal authority under the Clean Air Act. It examines how the letter does not fully delineate the consequences that will occur if states follow the letter’s advice and refuse to prepare plans that comply with the EPA regulations. Finally, the essay addresses claims in the letter regarding EPA’s ability to take control of state energy policy.

Professor Selmi is the Fritz B. Burns Professor of Real Property Law at Loyola Law School, Los Angeles, and a Visiting Scholar at the Sabin Center for Climate Change Law.

 1 comment  

Jennifer M. Klein, Esq.
Associate Director & Fellow

Coal_mine_WyomingA federal judge in Colorado has vacated a permit to expand a coal mine in New Mexico, finding that the agency approving the permit failed to consider the mercury pollution that would be released into the air when the coal is burned at a nearby power plant. While this case deals with the local environmental impacts of mercury pollution, it bears on federal agencies’ obligation to consider the climate impacts of fossil fuel extraction.

The Navajo Mine, located on a reservation in New Mexico, is the sole supplier of coal to the Four Corners Power Plant. In 2005, the mine operator, the Navajo Transitional Energy Company (NTEC)[1], sought to expand the mine’s operations and submitted an application for a revised permit to the Office of Surface Mining Reclamation and Enforcement (OSM). Pursuant to its obligations under the National Environmental Policy Act (NEPA), OSM completed an Environmental Assessment (EA) for NTEC’s permit revision application. OSM concluded that the proposed mine expansion would not have a significant impact on the environment and granted NTEC’s application.

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APRIL 2015 UPDATE TO CLIMATE LITIGATION CHARTS


Posted on April 8th, 2015 by Jennifer Klein

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 latest additions to the Climate Case Chart

Update #73 (April 8, 2015)

FEATURED DECISION

Massachusetts Court Rebuffed Challenge to Adequacy of State’s Greenhouse Gas Reduction Measures

A Massachusetts Superior Court ruled that the Massachusetts Department of Environmental Protection (MassDEP) had substantially satisfied the requirements of the Global Warming Solutions Act, a 2008 law that required MassDEP to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” MassDEP argued that it had satisfied this mandate by developing three programs: limitations on sulfur hexafluoride leaks, participation in a regional cap-and-trade program for carbon dioxide emissions, and a Low Emission Vehicle program. The court found that each of these programs satisfied the statutory mandate, and said that the plaintiffs’ “various quarrels” with the regulatory actions were “hypertechnical and overly exacting.” One of the plaintiffs, Conservation Law Foundation, announced on March 25, 2015 that it would appeal the decision. Kain v. Massachusetts Department of Environmental Protection, No. SUCV2014-02551 (Mass. Super. Ct. Mar. 23, 2015): added to the “Force Government to Act/Other Statutes” slide.

DECISIONS AND SETTLEMENTS

Federal Court Rejected EPA Defense That Coal Companies Lacked Standing to Bring Jobs Case

The federal district court for the Northern District of West Virginia ruled that coal companies had standing to claim that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. The court said that the alleged injuries from the power industry’s discontinuance of the use of coal were fairly traceable to EPA actions, including EPA’s failure to conduct the employment evaluations. The court further found that such injuries would be redressable because conducting the evaluations could result in reversal of prior EPA actions. The court also found that the coal companies fell within the zone of interests protected by the Clean Air Act provision requiring the evaluations. In addition, the court held that the companies had procedural and informational standing. Murray Energy Corp. v. McCarthy, No. 5:14-CV-39 (N.D. W. Va. Mar. 27, 2015): added to the “Challenges to Federal Action” slide.

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