oil rigBy Jessica Wentz and Michael Burger

The Bureau of Ocean Energy Management (BOEM) has proposed a leasing program to continue oil and gas production on the Outer Continental Shelf (OCS) for the next five years. BOEM estimates that the program could result in the production of up to 13,139 million barrels of oil and 39,218 billion cubic feet of natural gas. Unlocking these new carbon reserves could undermine our ability to achieve key climate goals, including the internationally agreed upon target of  limiting global warming to “well-below” 2 °C and preferably 1.5°C. Unfortunately, the draft programmatic environmental impact statement (PEIS) for the lease sale plan fails to address this critical issue.

Earlier this week we submitted a comment letter urging BOEM to consider the following key issues in the final PEIS for the OCS leasing program:

  • Downstream GHG Emissions: The draft PEIS contains no discussion of emissions from the transportation or end-use of oil and gas produced under the proposed program. This is inconsistent with federal guidance and case law requiring agencies to consider such downstream emissions in environmental review documents for projects involving fossil fuel extraction. (See our working paper on this topic). We urge BOEM to include emissions from both transportation and end-use in its GHG inventory and to use this information to decide whether and how to proceed with the leasing program. Accounting for end-use emissions is particularly important given the scale of this action—using data from EPA, we estimate that the oil and gas produced under the program could generate up to 8.3 billion metric tons of CO2 when combusted. This is equivalent to the GHG emissions generated from 1.7 billion passenger vehicles in a year, or the electricity use in 1.2 billion homes in one year.
  • Social Cost of Carbon: BOEM conducted a cost-benefit analysis for the proposed program that is incorporated by reference into the draft PEIS. Without any explanation, BOEM excluded greenhouse gas emissions from its valuation of environmental costs. We urge BOEM to use the social cost of carbon and other available tools to assign a cost value to both direct and indirect greenhouse gas emissions from the proposed program so that these costs are fully accounted for in its decision-making process.
  • Consistency with Federal Policies and Commitments: Our final recommendation is that BOEM consider whether the proposed program, in light of all greenhouse gas emissions, is consistent with federal policies and commitments, including: (i) our Intended Nationally Determined Contribution (INDC) to the UNFCCC, under which we have pledged to reduce economy-wide greenhouse gas emissions by 26-28% below 2005 levels by 2025; (ii) the attainment of the 2 °C / 1.5 °C global warming target (taking into account the fossil fuels that must be left in the ground to meet that target); and (iii) the Clean Power Plan, which will drive a shift towards cleaner fuel sources in the electricity sector.

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by David Markell
David Sive Visiting Scholar, fall 2016

The legal environment for local government indmarkell Florida is beginning to change when it comes to sea-level rise (sometimes referred to as SLR). Innovations in institutional structure and governance strategies are underway in the State as well. This paper, Sea-Level Rise and Changing Times for Florida Local Governments, reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others. It begins with the State’s decision, in 2011 legislation, to give local governments a new, optional tool – referred to as “Adaptation Action Areas” (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The paper then turns to a second piece of Florida legislation, this one enacted in 2015, which also identifies sea-level rise as a concern but this time mandates that local governments begin to address it and other causes of flood-related risks through their comprehensive planning process. Finally, the paper discusses a third initiative, launched in 2009 by four Southeast Florida counties – Miami-Dade, Broward, Palm Beach, and Monroe – to foster local government and regional coordination on sea-level rise and other climate change issues. This review of these three developments provides a relatively in-depth starting point for understanding key features of the emerging legal and institutional landscape in Florida for addressing sea-level rise, especially with respect to comprehensive planning. It thereby contributes to filling an enormous knowledge deficit concerning adaptation initiatives.

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by Michael Gerrard, Faculty Director

Coffin opinionYesterday Magistrate Judge Thomas Coffin of the U.S. District Court of Oregon recommended denial of motions to dismiss a suit brought by a group of young people who alleged that excessive carbon emissions are threatening their future. The plaintiffs also include Dr. James Hansen, who is named as a guardian for plaintiff “future generations.” The case is Kelsey Cascade Rose Juliana v. United States. It is one of the numerous suits organized by Our Children’s Trust.

The Magistrate Judge emphasized that, on a motion to dismiss, he was accepting all the complaint’s allegations as true. In view of that, among the notable aspects of his Findings and Recommendation, linked here:

  • “Given the allegations of direct or threatened harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged harm of a constitutional magnitude,” citing US v. SCRAP.
  • “[P]laintiffs differentiate the impacts [of climate change] by alleging greater harm to youth and future generations… Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society… [T]he intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”
  • With respect to redressability, “Assuming plaintiffs are correct that the United States is responsible for about 25% of the global CO2 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm.” Here the Magistrate Judge cited the Hague trial court decision in Urgenda Foundation v. State of Netherlands.
  • Rejecting the political question defense, “The complaint does raise issues of whether government action/inaction violates the Constitution and these issues are committed to the courts rather than either of the political branches.”
  • A substantive due process claim has been adequately pled. “Plaintiffs allege that the defendants’ action in this case has created a life-threatening situation and that defendants have willfully ignored long-standing and overwhelming evidence of that impending harm to the young and future generations.”
  • “At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon. Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent.”

The document from Magistrate Judge Coffin is in the form of Findings and Recommendation to the district judge. It gives the parties 14 days to file written objections, to be followed by 14 days for responses to the objections. Then the district court will issue its judgment or order, and only then can an appeal be taken to the Ninth Circuit.

If these recommendations are adopted by the district court and upheld on appeal, the case will have opened up a major new front on climate litigation. This is all worth following closely.

Oil DrillThe Sabin Center has recently posted a working paper, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA ReviewThe paper was co-authored by Executive Director Michael Burger and Associate Director and Fellow Jessica Wentz and will be published in the Fall 2016 edition of the Harvard Environmental Law Review.

The paper explores a question that is currently being litigated in various federal circuits and is of critical importance to the future of climate action in the United States: When agencies are conducting environmental reviews for fossil fuel extraction and infrastructure projects, does the National Environmental Policy Act (NEPA) require consideration of greenhouse gas emissions from activities that occur “downstream” from the proposed action, such as the combustion of the fossil fuels, and emissions from activities that occur “upstream” from the proposed action, such as the extraction of the fossil fuels?  This question is an essential one, because it can significantly affect the balance of costs and benefits of a proposed project and an agency’s ability to justify the approval of the project in light of that balance. It can also influence broad, programmatic decisions about public lands management, energy infrastructure and transportation networks.

In the paper, we argue that upstream and downstream emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provide recommendations on how agencies can account for such emissions in a manner that will improve federal decision-making, shield agencies from liability, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.

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Cities Across the U.S. Support Clean Power Plan in Amicus Brief


Posted on April 1st, 2016 by Justin Gundlach

by Michael Burger and Justin GundlachBrief thumbnail

This morning the Sabin Center filed an amicus brief in support of EPA’s Clean Power Plan on behalf of a coalition of local government representatives including the National League of Cities, the U.S. Conference of Mayors, and 54 U.S. cities, counties, and mayors. (Check the end of the post for a complete list of  “Local Government Coalition” members). The brief is available here.

As America’s “first responders” to climate change local governments have a unique and critical perspective on the need for immediate and ambitious climate action: they are experiencing and adapting to climate impacts, including sea level rise, heat waves, and floods; and they are at the forefront of efforts to reduce the anthropogenic emissions of greenhouse gases. EPA’s Clean Power Plan, which targets the existing power plants that are America’s largest source of greenhouse gas emissions, would achieve a 32 percent reduction in greenhouse gas emissions from 2005 levels by 2030. The state and industry challengers to the Plan, by contrast, posit an interpretation of the Clean Air Act which would either achieve a 0 percent reduction—because it would bar EPA from regulating GHGs from existing power plants altogether—or else something in the single digits. From the cities’ vantage point, it is obvious that EPA’s interpretation is both the preferred course of action, and a reasonable interpretation of the Clean Air Act. The Clean Power Plan would greatly aid their individual efforts to address the changing climate. Should it be rejected, those efforts would be made more expensive and less likely to succeed.

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NY Solar PanelsJessica Wentz
Associate  Director and Fellow

On March 14, the New York State Senate released a FY 2017 budget proposal that would divert $138 million from the Regional Greenhouse Gas Initiative (RGGI) auction proceeds to the state budget, including $23 million to the general fund, $100 million to subsidize the operations of certain nuclear power plants that are no longer financially viable, and $15 million for a workforce development program.

The amount that the Senate has proposed diverting from the RGGI fund for FY 2017 is more than 80% of the total value of RGGI auction proceeds earned by New York in FY 2016 (which totaled approximately $166 million). As detailed in the RGGI investment plan, these funds are typically used to support energy efficiency and renewable energy programs in New York State. This is not the first time that the legislature has diverted RGGI proceeds for other purposes—it also diverted $90 million in 2009 and $41 million in 2015 to the general fund. If the Senate proposal is approved, the diversions will total $269 million—nearly 30% of the $925.8 million in auction proceeds that have been collected since the program was launched in 2008.

These diversions are inconsistent with New York State regulations aimed at ensuring the proceeds of the auctions would be spent on new programs to further reduce greenhouse gas emissions. The regulations require that the auction proceeds be placed in a segregated funding account that is managed by the New York State Energy Research and Development Authority (NYSERDA) and used “to promote and implement programs for energy efficiency, renewable or non-carbon emitting technologies, and innovative carbon emissions abatement technologies with significant carbon reduction potential.”
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Oil Platform Silhouette with sun set 257x343Jessica Wentz
Associate Director and Fellow

Yesterday, the Bureau of Ocean and Energy Management (BOEM) released the Draft Programmatic Environmental Impact Statement (DPEIS) for the 2017-2022 Outer Continental Shelf (OCS) Oil and Gas Leasing Program. The DPEIS accounts for the impacts of climate change on program activities. It does not, however, contain any discussion of downstream emissions from the transportation, processing, or end use of the produced fuels. Nor does it assign an economic value to the emissions that it does evaluate (which are limited to emissions from exploration and production activities). As noted in previous blog posts, federal courts have required agencies to use the Social Cost of Carbon and to evaluate downstream emissions when reviewing environmental impacts of coal development. Which raises the question—why not oil and gas?

We submitted a comment letter last year on the scope of climate change-related considerations that should be addressed in its environmental review of the 2017-2022 OCS Leasing Program. In that letter we urged the agency to consider the impact of oil and gas development on greenhouse gas emissions from “downstream” activities, such as the transportation, processing and end-use of the produced fuels. We also urged the agency to use to the Social Cost of Carbon to assign a value to greenhouse gas emissions in its cost-benefit analysis, and to evaluate how climate change may affect OCS operations. We intend to submit additional comments on the DPEIS, reminding BOEM of its legal obligation to consider downstream emissions and the cost of emissions. The comment deadline is May 2, 2016. Additional information about how to comment on the DPEIS is available here.

Regarding the scope of greenhouse gas emissions that should be included in environmental reviews – Sabin Center Executive Director Michael Burger and I take an in-depth look at this issue in a new working paper, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, available on our website and SSRN. There, we argue that federal agencies should account for both upstream and downstream emissions when reviewing the environmental impacts of fossil fuel extraction and infrastructure proposals, since these emissions qualify as “indirect effects” within the meaning of NEPA. The consideration of such emissions is important, because it can dramatically alter the balance of costs and benefits of a proposed project and an agency’s ability to justify the approval of the project in light of that balance. It can also influence broad, programmatic decisions about public lands management, energy infrastructure, and transportation networks.

Justin Gundlach
Climate Law Fellow

Over the past decade, as the scientific consensus about the fact and nature of anthropogenic climate change has solidified, extreme weather events have destroyed enormous sums of assets, infrastructure investments, and large numbers of human lives. Set against the backdrop of climate change, these events have prompted charged arguments over whether and how much climate change “caused” the occurrence or severity of a given event. The stakes—financial, legal, political—are often high, but the absence of agreed scientific standards has generally left these arguments unmoored from criteria that all parties are willing to accept as valid grounds for resolution.

This is the circumstance that the National Academies of Sciences hopes to address with its report, published on March 11, Attribution of Extreme Weather Events in the Context of Climate Change. The new NAS report articulates three critical issues: (1) the grounds for and levels of confidence in the ability of science to accurately attribute the contribution of climate change to particular types of extreme weather event; (2) technical and rhetorical considerations for those developing and publicizing information about climate change attribution; and (3) an agenda for the scientific community to pursue in order to improve attribution science still further. Summaries of each follow after the jump.

One of the report’s recommendations—to develop “transparent community standards for attributing classes of extreme events”—deserves special mention because of its clear application to contexts in which a factfinder must determine causation and/or responsibility for adverse outcomes related to risks heightened by climate change. Such standards would provide clear guidance to non-experts faced with the task of classifying an event as climate change-related, or of classifying a risk heightened by climate change as foreseeably more intense or frequent. This kind of information would be not only useful but impossible to ignore wherever someone is responsible for anticipating risks heightened by climate change. Such community standards would therefore have immediate implications for insurers, civil and structural engineers, and possibly also state and local governments, among others.

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On February 24, 2016, the Province of Ontario in Canada introduced the Climate Change Mitigation and Low-carbon Economy Act (the “Ontario Climate Act”). The next day the Province released its Cap and Trade Program Regulations (the “Regulations”). The Act and the Regulations will undergo a 45-day public and stakeholder comment period. If passed into law, this legislation would formally establish a cap and trade program in Ontario, adding Ontario to a growing roster of municipal, provincial, federal, regional, and international regimes that have embraced the cap and trade system as an instrument choice for combating climate change. The cap-and-trade program is expected to come in force on January 1, 2017.

In this short working paper, Dr. Damilola Olawuyi, the Sabin Center’s Spring 2016 David Sive Visiting Scholar, assesses the proposed Act in relationship to some of the essential requirements of a robust cap-and trade system, including: effectiveness; comprehensiveness; transparency and fairness; and offset eligibility. Moreover, in the vein of the Center’s ongoing work on human rights and climate change and Dr. Olawuyi’s current research on corporate responsibility to address the human rights impacts and climate change mitigation and adaptation, Dr. Olawuyi argues that the efficacy of the proposed legislation will be further enhanced if it is infused with procedural and accountability safeguards to address human rights risks and questions that will inevitably arise in carbon offset projects. The paper suggests that the legislation, and its accompanying regulations, should establish inspection panels and dispute resolution mechanism through which emission reduction actions and projects that violate existing environmental and human rights laws and norms can be identified and screened out from credit trading.

Read the working paper here.

Climate Change Litigation Chart Updates – March 2016


Posted on March 8th, 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 #84).

[Editor’s Note: Due to changes to the Arnold & Porter website, these updates will not be posted online until later in March.]

FEATURED CASE

Supreme Court Stayed Clean Power Plan; Merits Briefing Commenced in D.C. Circuit

In five identical half-page orders, the United States Supreme Court granted five applications requesting that it stay implementation of the Clean Power Plan, which regulates carbon emissions from existing power plants. The orders indicated that Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the applications. A blog post by Sabin Center Director Michael Gerrard about the stay is available here. Ten days later, the petitioners filed a joint opening brief in the D.C. Circuit, and on February 23, a number of briefs were filed by amicus parties in support of the petitioners, including members of Congress, former state public utility commissioners, and a group of “organizations that represent women, minorities, and seniors, and those who advocate for free-market solutions to help these vulnerable populations.” In their joint brief, the petitioners contended that the Clean Power Plan was outside the authority vested in the United States Environmental Protection Agency (EPA) by Section 111 of the Clean Air Act, and that Section 112 expressly prohibited the Clean Power Plan. They also argued that the Clean Power Plan rule unconstitutionally abrogated state authority and “commandeer[ed] and coerc[ed]” states into implementing federal energy policy.West Virginia v. EPA, Nos. 15A773 et al. (U.S. Feb. 9, 2016); West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. joint opening brief Feb. 19, 2016; amicus briefs Feb. 23, 2016): added to the “Challenges to Federal Action/Clean Power Plan” slide. [Editor’s Note: Many 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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