Romany Webb Joins the Sabin Center as New Climate Law Fellow


Posted on September 23rd, 2016 by Jessica Wentz

r-webb-photoLast week, Romany Webb joined the Sabin Center as our 2016-2018 Climate Law Fellow. Romany’s work with the Sabin Center will focus on climate change mitigation and explore the use of existing laws to control greenhouse gas emissions.

Romany joins us from the University of Texas at Austin School of Law, where she was a clinical instructor and research fellow. During her fellowship, Romany researched legal tools for minimizing the climate and other environmental impacts of energy development, particularly natural gas extraction. Prior to the fellowship, Romany worked at the University of California, Berkeley Energy and Climate Institute. Her role included advising members of Congress and the Administration on the scope of executive authority to address climate change.

Romany holds an LL.M., with a Certificate of Specialization in Environmental Law, from the University of California, Berkeley and an LL.B. from the University of New South Wales, Australia. Romany is admitted as a solicitor of the Supreme Court of New South Wales and, prior to moving to the U.S., spent several years working in private practice in the energy and water sectors. She was also a lecturer at the Australian National University and has written extensively on environmental law in Australia.

You can reach Romany at rwebb@law.columbia.edu.

Last week saw the opening of the 71st session of the United Nations (UN) General Assembly. In his inaugural address, incoming General Assembly President Peter Thompson declared that the session would focus on advancing the seventeen Sustainable Development Goals (SDGs), adopted in September 2015. The SDGs form part of the UN’s 2030 Agenda for Sustainable Development, which aims to eradicate poverty and ensure prosperity for all, such that everyone “can fulfill their potential in dignity and equality and in a healthy environment.” Achieving this laudable aim will require action to promote economic growth, while ensuring social inclusion and environmental protection.

But balancing these economic, social, and environmental ideals is easier said than done, particularly in the era of climate change. In this new era, questions abound regarding what constitutes “sustainable” development and how to achieve it. Central to these questions is the role of fossil fuels, which have long been seen as the backbone of economic growth, but now threaten to interfere with international climate goals.

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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 since update #88:

FEATURED CASE (September)

Seventh Circuit Upheld Department of Energy’s Reliance on Social Cost of Carbon for Efficiency Standards

The Seventh Circuit Court of Appeals upheld the United States Department of Energy’s (DOE’s) energy efficiency standards for commercial refrigeration equipment, including DOE’s analysis of the standards’ environmental benefits based on the Social Cost of Carbon (SCC). The court concluded that DOE had “acted in a manner worthy of our deference.” The court found that the analytical model upon which the standards were based and DOE’s cost-benefit analysis were supported by substantial evidence and not arbitrary and capricious. The court also said that DOE’s cost-benefit analysis was within its statutory authority. With respect to environmental benefits and the SCC, the court rejected the petitioners’ argument that the Energy Policy and Conservation Act did not permit consideration of environmental factors and also the petitioners’ contention that DOE’s calculation of the SCC was “irredeemably flawed.” The court also rejected arguments that DOE had improperly considered long-term environmental benefits such as carbon reductions but not long-term costs such as worker displacement and that DOE arbitrarily considered global benefits but only national costs. Zero Zone, Inc. v. United States Department of Energy, Nos. 14-2147 et al. (7th Cir. Aug. 8, 2016): added to the “Challenges to Other Federal Action” slide
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In a new working paper, Executive Director Michael Burger presents a “Mitigation-Based Rationale for Incorporating a Climate Change Impacts Fee into the Federal Coal Leasing Program.” The paper makes several key points about the rationale for introducing such a fee, most notably, that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this mitigation option, such as what metrics should be used to establish an appropriate fee and how a fee might work with carbon sequestration efforts and other emissions offsets.

The paper is intended to inform the scope of the mitigation measures that Interior and BLM will consider in their programmatic environmental review of the federal coal leasing program, and has been submitted directly to these federal agencies.  While others have explored the question of whether the coal leasing program should put an effective price on carbon, primarily through an increased royalty rate, this is the first in-depth exploration of a mitigation-based approach that operates through the agencies’ authority and obligations under NEPA, FLPMA and the Mineral Leasing Act. It complements several other Sabin Center initiatives and projects aimed at informing the programmatic coal review, including our recent conference, “US Coal in the 21st Century: Markets, Bankruptcy, Finance and Law”, a comment letter on the scope of issues that should be covered in the review, and our work on accounting for upstream and downstream emissions in NEPA reviews.

The full paper is available here, and an executive summary is available here.

Payal Nanavati
Columbia Law School Class of ‘17

Climate change has already begun to force elements of the electric grid to operate in conditions materially different from those for which they were designed. Persistent high temperatures, heavy or reduced precipitation, extreme weather events, and sea-level rise can all affect grid operations. The state and federal regulators tasked by state law with ensuring that consumers have access to “safe and reliable electricity at just and reasonable rates” should address these vulnerabilities by prioritizing the grid’s adaptation—a task that requires anticipating environmental changes and identifying technologies capable of making the grid less vulnerable and more resilient amid those changes.

This new chapter is written for advocates seeking to persuade utility commissions that a more thorough integration of adaptation considerations into the design and operation of the electric grid will increasingly be indispensable to the provision of cost-effective electricity services.

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Progress Towards an HFC Amendment to the Montreal Protocol


Posted on August 15th, 2016 by Jessica Wentz
 2 comments  

by Michael Choi, Summer Intern

Last month, the United States delegation led international efforts to initiate a Hydrofluorocarbon (HFC) amendment to the Montreal Protocol at meetings which took place from July 15th-23rd. The Montreal Protocol, which was adopted on September 16, 1987, is an international agreement to phase out the production and consumption of ozone depleting substances in order to reduce their abundance in the atmosphere and protect the stratospheric ozone. As noted by U.S EPA Administrator Gina McCarthy, the Montreal Protocol is regarded “as the most successful environmental treaty” since it has led to the 97% reduction in the production and import of ozone depleting substances throughout the world.

HFCs are fluorinated greenhouse gases that are used commonly in refrigeration, air conditioning, aerosols, fire protection systems and solvents.  They have become increasingly prevalent because they serve as a substitute for the ozone-depleting substances that are being phased out under the Montreal Protocol, such as chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs). Although HFCs have not been proven to directly harm the ozone layer, they are extremely potent greenhouse gases.

The Montreal Protocol can be amended to ban substitutes for ozone depleting substances that harm the environment, even if the substances may not negatively impact the ozone layer.  On November 6, 2015, the 197 parties that signed the Montreal Protocol pledged to monitor and limit the usage of HFCs and to pass an amendment by the end of 2016 regarding the phase out of HFCs. The parties did not reach a final agreement on the text of the amendment at last month’s meetings, but they hope to do so by October. According to EIA international, over 100 parties, including the US and EU, have now expressed support for an ambitious agreement with a HFC consumption freeze beginning in 2021.

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by Justin Gundlach
Climate Law Fellow

New York City’s Economic Development Corporation (EDC) is planning to implement a Citywide Ferry Service by adding five new routes to those already run by the East River Ferry. EDC anticipates several benefits from the Citywide Ferry Service: it will link neighborhoods that currently have few transit options, ease transit congestion elsewhere, and provide an affordable way for commuters and tourists to access waterfront parks and developments. As required by the City Environmental Quality Review (CEQR) process, EDC drafted an Environmental Impact Statement (EIS) to identify both the effects of the ferries on the environment and the effects of the changing climate on the ferries and their landings. That EIS, for reasons described below, is a solid example of the sort of analysis that the White House Council on Environmental Quality (CEQ) envisioned when it issued its Final Guidance to Federal Agencies on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.

To access the EIS, go to this website and enter 15DME009Y (the Citywide Ferry Service’s serial number) into the “CEQR Number” field.

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White House Announces Clean Energy Access Initiative


Posted on August 5th, 2016 by Jessica Wentz

by Michael Choi, Summer Intern

On July 19th, the Obama Administration announced the commencement of the Clean Energy Savings for All Initiative to “increase access to solar energy and promote energy efficiency across the United States.” The initiative, which creates a partnership between the Departments of Energy (DOE), Housing and Urban Development (HUD), Agriculture (USDA), Health and Human Services (HHS), Veteran’s Affairs (VA), and the Environmental Protection Agency (EPA), aims to bring 1 gigawatt (GW) of solar to low- and moderate- income families by 2020. There are several notable components of the initiative that are intended to promote access to clean energy and energy efficiency while offsetting the costs of the sustainable energy transition:

  • The Community Solar Challenge, which will award teams of communities up to $100,000 in cash and technical assistance to develop innovative models to increase solar deployment and reduce community energy bills, with a focus on low income areas.
  • The Solar Training Network, which will help Americans find clean energy jobs by connecting solar workforce trainers, solar employers and individuals interested in working in the solar industry.
  • The Low Income Home Energy Assistance Program (LIHEAP), which provides grants to low-income residents for weatherization and energy efficiency programs.

The fact sheet for the program is available here.

by Michael Burger & Jessica Wentz

On Tuesday August 2 the Council on Environmental Quality (CEQ) released its much-anticipated Final Guidance to Federal Agencies on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews. The final guidance is largely the same as the revised draft guidance issued in 2014: It directs federal agencies to account for the effects of a proposal on climate change, using greenhouse gas (GHG) emissions as a proxy for those effects, as well as the effects of climate change on the proposed action and its environmental impacts.  There are, however, two notable changes: First, the final guidance no longer specifies a threshold for quantifying GHG emissions. Instead, it directs agencies to quantify emissions whenever the tools and data are available to do so. Second, the language calling for consideration of “upstream” and “downstream” emissions has been removed, and replaced with reference to the more technically precise term, “indirect effects.” Importantly, the guidance states that the reasonably foreseeable indirect effects that should be accounted for in NEPA documents would include what are, in essence, downstream emissions – for example, emissions from the end-use of coal that is mined as a result of a federal action. More on this below.

One important aspect of this final guidance is that it will provide certainty to federal agencies about how to address considerations related to climate change in their NEPA reviews. This will likely prompt many agencies to adopt more detailed, agency-specific guidance that is tailored to the types of actions that they frequently review. For example, several agencies have been waiting for the final CEQ guidance in order to adopt internal guidance on accounting for the effects of climate change on land and resource management actions.

The final CEQ guidance comes after a lengthy process of public engagement and interagency consultation. In 2008 several environmental groups formally petitioned CEQ to issue such guidance. (One of them, the Natural Resources Defense Council, was represented by Michael Gerrard, the Sabin Center’s Faculty Director.) CEQ issued two iterations of the guidance – an initial draft in 2010 and a revised draft in 2014 – and the guidance has evolved considerably with each new version. For example, the initial draft did not address whether agencies should account for the effects of federal land and resource management decisions on carbon sequestration, whereas the 2014 draft and the final version direct agencies to consider such effects and cite tools that can be used to perform this analysis.

The 2014 draft and final version also contain significantly more information about how to account for the effects of climate change on a proposed action and its environmental impacts, as compared with the 2010 draft. The final guidance states that “a NEPA review should consider an action in the context of the future state of the environment,” taking into account the effects of climate change, in order to accurately characterize the environmental consequences of the action. It also recognizes that climate change adaptation and resilience are important considerations for many federal actions. The guidance is therefore consistent with our previous analysis of this topic and model protocols we have developed for addressing the effects of climate change on projects undergoing environmental review.

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A July 2016 federal court decision has upheld Wyoming laws that impose criminal and civil penalties for collection of “resource data”[1] when the collection involves trespassing on private lands, even when the trespass is unintentional, and even when the trespass is incidental to the collection.

The Wyoming legislature enacted these laws in 2015, outlawing the collection of “resource data” on any “open land” when the data was submitted or intended to be submitted to the government.  The statutes defined “open land” as “land outside the exterior boundaries of any incorporated city, town, subdivision . . . or development.”  There was confusion as to whether this meant private land only, or whether state or even federal land also qualified.

In 2015, the Western Watersheds Project, a conservation non-profit that monitors water quality in Wyoming and other states, filed a suit challenging the new laws, accompanied by other groups including the National Press Photographers Association and the Natural Resources Defense Council.  The Plaintiffs claimed that these data trespass laws amounted to unconstitutional censorship, violating the First Amendment’s Free Speech clause and the Fourteenth Amendment’s Equal Protection clause, and they argued that Wyoming’s data trespass laws were preempted by various federal environmental statutes. Read more »

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