New SCCCL Report: Flag State Regulation of Greenhouse Gas Emissions


Posted on November 13th, 2014 by Jennifer Klein

contianer ship NOAAThe Sabin Center for Climate Change Law has released a new white paper addressing state authority to regulate greenhouse gas emissions from ships. According to international law, all ships must have a nationality and must register with and fly the flag of that state. Flag state jurisdiction refers to a state’s authority to regulate ships within its registry. A SCCCL white paper published in February 2014, which addressed state authority to regulate greenhouse gases (GHGs) from the international shipping sector, concluded that flag states have broad authority under international law to regulate GHG emissions from vessels within their registry. This new white paper delves further into the issue of flag state authority to examine how registry structure may affect a state’s capacity to regulate. Read more »

Next Gen CoverThe Environmental Law Institute (ELI) has published a new book on Next Generation Environmental Compliance and Enforcement, edited by SCCCL Associate Director Jessica Wentz and GW Law School Associate Dean of Environmental Studies LeRoy Paddock.  The book examines various opportunities to harness new technologies and management strategies in order to promote voluntary compliance with environmental laws and reduce the cost of agency enforcement. Some of these strategies may prove quite useful for federal and state agencies seeking cost-effective regulatory solutions to manage greenhouse gas emissions from a wide array of different sources.

Read more »

Jennifer M. Klein, Esq.
Associate Director & Fellow

file000285065599Sea level rise is a “pervasive and increasing threat” and should be evaluated as infrastructure projects are built or modified along San Francisco’s shorelines, according to Guidance adopted by San Francisco’s Capital Planning Committee (CPC) on September 22. San Francisco, bordered by the Pacific Ocean to the west and the San Francisco Bay to the north and east, is already experiencing periodic inundation and erosion, which will be exacerbated by sea level rise. The new Guidance asserts that planning efforts “must incorporate the latest climate science to determine how to protect and modify existing assets and design new assets to be more resilient to rising seas.”

Read more »

Jennifer M. Klein, Esq.
Associate Director & Fellow

512px-Ocean_side_FunafutiA family of four was granted residency in New Zealand after arguing that they would suffer the adverse impacts of climate change if deported to their home country of Tuvalu. The New Zealand Immigration and Protection Tribunal, which issued a decision on June 4, 2014, considered the family’s appeal under the Immigration Act 2009. The Act provides a route for immigrants to remain in New Zealand where they can show “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand.”

However, while the Tribunal acknowledged that climate change impacts may affect enjoyment of human rights, it explicitly declined to reach the question of whether climate change provided a basis for granting resident visas in this case. Instead, the Tribunal based its finding of “exceptional circumstances” on other factors, including the presence of the husband’s extended family in New Zealand, the family’s integration into the New Zealand community, and the best interests of the children.

See the complete decision here.

Jennifer M. Klein, Esq.
Associate Director & Fellow

cows-358959_640Sea level rise and associated increases in flooding and storm surge should be considered in connection with two planned liquefied natural gas facilities proposed to be built on the coasts of Maine and Louisiana, according to letters submitted today by the Sabin Center for Climate Change Law (SCCCL) to the Federal Energy Regulatory Commission (FERC).

FERC issued a Notice of Intent to Prepare an Environmental Impact Statement for each project earlier this month. The National Environmental Policy Act (NEPA) requires federal agencies to issue Environmental Impact Statements (EISs) for major federal actions that may significantly affect the quality of the human environment. As a preliminary step, agencies are required to public a Notice of Intent (NOI), which must provide a description of the proposed project and invite comments regarding the scope of the EIS.

Read more »

Jennifer M. Klein, Esq.
Associate Director & Fellow

800px-The_Pentagon_January_2008On Monday the Department of Defense (DOD) issued a report describing its plan to adapt to the impacts of Climate Change. The DOD views climate change as an immediate threat based on its potential to undermine the capacity of military installations and to “intensify the challenges of global instability, hunger, poverty, and conflict.” Noting that the military deals constantly with global uncertainty, the report asserts that uncertainty in future climate projections “cannot be an excuse for delaying action.”

As the New York Times reports, the DOD report represents a significant shift for the military. The Pentagon has in the past focused on physical adaptations to climate change, such as protecting coastal naval bases from rising sea levels. The new report is notable for emphasizing the need to “incorporate climate change into broader strategic thinking about high-risk regions — for example, the ways in which drought and food shortages might set off political unrest in the Middle East and Africa.” Secretary Hagel gave a speech in Peru on Monday in an apparent effort to build support for upcoming U.N. Climate Change Negotiations to be held in Lima this December.

wetlands photoIt is no secret that the fight against desertification isn’t going well. In the two decades since the United Nations Convention to Combat Desertification came into force, desertification has worsened considerably. Many within the desertification community and beyond are calling for a fresh approach to the problem: the establishment of a global goal to achieve a “land-degradation neutral world” (LDNW). However, the call for land degradation neutrality has not been universally celebrated, particularly given the questionable track record of past “no net loss” policies.

In a new working paper by Shelley Welton (former deputy director, Sabin Center for Climate Change Law), Michela Biasutti (Associate Research Scientist, Lamont-Doherty Earth Observatory), and Michael Gerrard (director, SCCCL), the authors explore ways to advance global land degradation neutrality into a concept — and, eventually, a program — that has legal and scientific integrity, such that it delivers tangible gains. The paper draws on lessons learned from two ongoing, land-centered policy attempts similarly framed around goals of “neutrality”: the “no net loss” wetlands policy embraced by the United States’ Wetlands Mitigation Banking (WMB) program, as representative of a broad class of “biodiversity offset” programs emerging around the world; and Reduced Emissions from Deforestation and Forest Degradation (REDD), an international program aimed at preserving, enhancing, and restoring forests as carbon “sinks.”

The paper finds that three key issues emerge for further consideration on the path to a “land-degradation neutral world”: (1) how to define and measure the problem — “land degradation” — in scientifically and legally meaningful ways; (2) how to successfully pursue “neutrality” as an organizing principle; and (3) how to balance the local and the global, and the public and the private, in the administration of such a program. The paper concludes that neither WMB nor REDD’s experience allows for enthusiastic endorsement of “neutrality”-framed land management programs, but suggests that these efforts may have laid the groundwork or the next generation of such programs to proceed with greater knowledge of how to design with integrity, for success. It asserts that LDNW’s best hopes for success will lie in early, honest conversations that achieve reasonable clarity in program aims, coupled with metrics that accurately capture these aims and a willingness to allow pluralistic experimentation during early stages of implementation.

The paper is forthcoming in the Columbia Journal of Environmental Law (2014). The research was financed by a National Science Foundation award.

Jennifer M. Klein, Esq.
Associate Director & Fellow

Th5733-cooling-towers-with-a-blue-sky-pve Nuclear Regulatory Commission (NRC) recently finalized a rule regarding the storage of highly radioactive spent nuclear fuel at individual power plants beyond the duration of each plant’s operating license. The NRC’s Final Generic Environmental Impact Statement (GEIS) for the rule addressed potential climate change impacts during the time that spent fuel will be stored. Specifically, the GEIS cited sea level rise data from the 2014 National Climate Assessment, concluding that “no U.S. nuclear power plant (operational or decommissioned) will be underwater solely because of sea level rise before 2100.”

Last December, the Sabin Center for Climate Change Law (SCCCL) submitted comments on the Draft GEIS. SCCCL’s comments focused on the NRC’s failure to analyze the effect of future climate conditions on nuclear waste storage facilities. SCCCL argued that the Draft GEIS relied on dated sources that did not account for uncertainty in sea level rise projections, and SCCCL pointed to the National Climate Assessment as a more reliable source of data. The NRC’s use of this data is an example of how data concerning future climate conditions can be used during the environmental impact review process to inform important government decisions.

Adaptive management at the Glen Canyon Dam: a USGS scientist monitors the Colorado River before a high-flow experiment in 2012.

Adaptive management at the Glen Canyon Dam: a USGS scientist monitors the Colorado River before a high-flow experiment in 2012.

On September 19, the George Washington University Law School, Society for Risk Analysis, USDA Risk Forum and Environmental Law Institute co-hosted a workshop on the role of adaptive management in government decision-making.  Representatives from federal agencies, civil society organizations and academic institutions gathered to discuss some of the key barriers to and opportunities for adaptive management in federal programs. The attendees included SCCCL Director Michael Gerrard and Associate Director Jessica Wentz.

One of the primary topics discussed during the workshop was whether there are administrative or procedural barriers under the Administrative Procedure Act (APA) and other federal statutes that significantly impede the ability of federal agencies to engage in “genuine” adaptive management—i.e., a robust and structured process of iterative decision-making in the face of uncertainty that involves a cyclical process of experimentation, monitoring, assessment, and learning from results. This discussion commenced with a presentation from J.B. Ruhl and Robin Craig on their recent proposal for amending the APA to create an alternative set of administrative procedures for agencies using adaptive management, which the authors refer to as an “adaptive management track.” Ruhl and Craig suggest that this alternative track could provide enhanced flexibility for federal agencies by insulating certain decisions from procedural hurdles under the APA and other statutes. Specifically, agency decisions undertaken as part of an eligible adaptive management plan would be largely exempt from APA requirements relating to judicial review and public participation, as well as procedural requirements under other federal statutes, including the National Environmental Policy Act (NEPA).

Read more »

electrical-power-linesIn a new working paper (forthcoming as an article in Harvard Environmental Law Review Volume 39, 2015), Shelley Welton examines the reasons that “non-transmission alternatives”—including energy efficiency, energy storage, demand response, and distributed generation—have played a very limited role in meeting electricity grid constraints, despite their great potential. The paper begins by exploring the promise that non-transmission alternatives hold for creating a cleaner, more stable electricity grid. It then argues that the predominant reasons that these promising non-transmission alternatives have failed to gain traction lie in structural flaws in transmission planning, caused in part by questions over how far the jurisdiction of the Federal Energy Regulatory Commission (FERC) extends when it comes to these “non-transmission” resources.

Read more »

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.