November 2019 Updates to the Climate Case Charts


Posted on November 6th, 2019 by Tiffany Challe

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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 127.

FEATURED CASE

State and Local Government Climate Cases to Proceed Against Fossil Fuel Companies in State Courts After Supreme Court Declined to Stay Remand Orders

On October 22, 2019, the U.S. Supreme Court denied fossil fuel companies’ application for a stay pending appeal of a district court’s remand order returning Baltimore’s lawsuit seeking to hold the companies liable for impacts of climate change. The application was presented to Chief Justice Roberts, the circuit justice for the Fourth Circuit, who referred the application to the Court. The Court’s order denying the application indicated that Justice Alito did not take part in the consideration or decision of the application. Also on October 22, the circuit justices for the First Circuit (Breyer) and Tenth Circuit (Sotomayor) denied applications from fossil fuel companies for stays pending appeal of remand orders in cases brought by Rhode Island and Colorado municipal governments. The companies’ appeal of the remand order in Baltimore’s case has been fully briefed in the Fourth Circuit and is scheduled for oral argument on December 11. As of November 5, the district court in Maryland had not yet issued an order to lift its temporary stay on the remand order. In the Rhode Island case, the federal district court issued a text order granting the motion to remand two days after the Supreme Court denied a stay. The companies’ brief in their First Circuit appeal of the remand order is due on November 20. The federal district court in the Colorado case notified the state court of the remand order on October 8, immediately after denying oil and gas companies’ emergency motion for a stay. Other developments in governmental climate change cases against fossil fuel companies included the scheduling of oral argument in the Second Circuit for November 22 in New York City’s case. BP p.l.c. v. Mayor & City of Baltimore, No. 19A368 (U.S. Oct. 22, 2019); BP p.l.c. v. Rhode Island, No. 19A391 (U.S. Oct. 22, 2019); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 19A428 (U.S. Oct. 22, 2019); City of New York v. BP p.l.c., No. 18-02188 (2d Cir. Sept. 30, 2018).

Read more »

By Arianna Menzelos

Columbia University–a multi-campus institution of over 44,000 employees, residents, and students–has significant impact on New York’s carbon footprint as well as on national leadership in sustainability. As one of the largest private landowners in the City of New York, Columbia’s institutional decisions directly impact local and regional emissions levels. Two recent legislative developments–the City’s Local Law 97 and the State’s Climate Leadership and Community Protection Act–have the potential to profoundly implicate Columbia’s facilities and sustainability planning. Local Law 97 provides mandates that govern building emissions in New York and has explicit implications for campus infrastructure alterations. In contrast, as the specific requirements of the Climate Leadership and Community Protection Act will not be clear until an implementation plan is issued in two years. Both laws will eventually require the campus to lower its carbon footprint. As a leader in climate research and education, Columbia should not only follow but also embrace the goals of these landmark pieces of environmental legislation.

Read more »

Legal Considerations for Urban Carbon Mitigation Policies


Posted on October 29th, 2019 by Amy Turner

By Amy Turner

Last month, the Sabin Center announced our new Cities Climate Law Initiative, a project aimed at helping U.S. cities achieve their climate mitigation commitments by addressing critical gaps or obstacles to advancing implementation of the laws and legal tools available to help reduce urban greenhouse gas emissions. The Initiative is conducting foundational legal research on the policy approaches being used by cities to reduce the carbon footprints of their buildings, transportation, energy and waste sectors. The Initiative is also working directly with urban sustainability offices and city attorneys to address legal questions arising in connection with carbon mitigation efforts.

U.S. cities are growing, and they are increasingly taking the lead on climate mitigation. (So, too, are towns, counties and other municipal governing bodies – for ease of writing, we refer only to “cities” here but are focused on all forms of local government.) Dozens of U.S. cities have set greenhouse gas mitigation targets, more than 400 U.S. mayors signed onto a joint commitment to “adopt, honor and uphold the Paris Climate Agreement goals,” and more than 90 American cities have committed to a 100% renewable energy target. These goals—whether framed as “80×50,” carbon neutrality, or 100% renewable energy—are necessarily bold. And they demand that we not only fundamentally reimagine our economy and energy systems but also rethink the legal mechanisms by which we authorize and regulate our transportation, buildings, energy and waste, and the countless pieces of our lives these sectors touch.

Cities are out front on climate change, and are developing policy tools that can be used to help achieve these laudable objectives. These include direct regulation of existing buildings and changes to building codes, modal transportation shifts and electric vehicle adoption, spurring utility-scale and local distributed renewable energy, managing waste streams, engaging the private sector, and much more. But the challenges to cities are myriad. There are, as of 2017, 35,748 municipal and township governments and 3,031 county governments in the U.S. (there are another 38,542 “special district” local governments), and no two of them are exactly the same. In particular, cities are political subdivisions of the states in which they are located, meaning that they have no more authority than their respective states have granted them. Municipal enabling statutes, which grant cities the authority to enact laws and policies, look different from state to state and, in some cases, vary among cities in the same state. So while there are shared legal challenges that all cities face in enacting climate-friendly laws and policies, there are also significant differences in the types of policies cities may be able to enact, or at least in the way they would need to go about implementing them.

There are five major types of legal challenges that U.S. cities face in crafting and adopting climate-friendly laws and policies (there are many more challenges cities face from a legal perspective as well, such as litigation from local residents and groups):

  1. U.S. cities must be aware of significant and fundamental limitations of U.S. federal law. Federal laws like the U.S. Clean Air Act and the U.S. Energy Policy & Conservation Act can preempt some of the exciting policies advanced in places like London, which has implemented a “low emissions zone” (or LEZ) and an “ultra low emissions zone” (or ULEZ) that restrict, through tolls, road access for high-emissions vehicles in a central business district. While U.S. cities could be preempted by these federal laws from implementing a LEZ that distinguishes among vehicles based on emissions or fuel economy, there are important lessons, and aspects of these policies, that can be successfully implemented here in the U.S. For example, while laws restricting access to roads based on use of low emissions vehicle technology might be preempted, cities have significant latitude (depending on state enabling laws) to regulate traffic, including size and weight of vehicles, curbside parking, stopping and idling, and even closing sections of roads to vehicle traffic altogether. The Cities Climate Law Initiative helps U.S. cities generally and individually understand what aspects of LEZ policy are legally permissible and can be deployed to reduce a city’s greenhouse gas emissions. Read more »

Here’s How Science Has Suffered During the First 1,000 Days of Trump


Posted on October 18th, 2019 by Tiffany Challe

By Lauren Kurtz and Susan Rosenthal

One thousand days into the Trump administration, the federal government has attacked science 249 times—or roughly once every four days.

The administration’s assault on science includes attempting to cast doubt on climate change, limiting and eliminating access to scientific information, and preventing federal scientists from publicly communicating their research.

In the Silencing Science Tracker, a public database we maintain with Columbia Law School’s Sabin Center for Climate Change Law, we catalog government efforts to restrict, censor, undermine, and misrepresent science since the November 2016 elections. We’ve defined these actions as those that aim to restrict or prohibit scientific research, education, or discussion, or the publication or use of scientific information.

Federal entries in the Silencing Science Tracker broken out by agency.

Our analysis of Tracker data reveals where and how the Trump administration is focusing its efforts to silence science. The largest number of entries pertain to actions taken at the Environmental Protection Agency (EPA), constituting 23 percent of federal entries and the Department of Interior (DOI) at 18 percent.

But other agencies are not immune to attacks on science. The Department of Health and Human Services (HHS), Department of Agriculture (USDA), and Department of Commerce (DOC)—the parent agency of the National Oceanographic and Atmospheric Agency (NOAA)—are also well-represented
in the Tracker.

This is a continuation of the trend we reported in January 2019, with different agencies represented at roughly the same rates as they were earlier in the year. It is worth noting actions to silence science are increasingly spread across a variety of smaller agencies or agencies typically less focused on scientific research, such as the Department of Transportation and the Federal Communications Commission.

Climate science also remains the type of science most under attack, at 72 percent of Tracker entries. Other types of science affected include nutrition research, children’s health research, and endangered species listings.

What’s new is that the types of government efforts to silence science have shifted considerably since the beginning of 2019. Reports of government censorship have risen to 39 percent of all entries, up from 26 percent in January. In fact, 65 percent of entries over the past three months—or 13 out of 20 entries—involve government censorship.

Silencing Science Tracker entries broken out by type of action

Reports of self-censorship have also risen to 7 percent, up from 5 percent. Reports of research hindrance and budget cuts have also each risen slightly since January; comparatively, personnel changes and bias and misrepresentation have fallen as a percentage of total entries.

The reasons for these shifts are not clear but we believe, as others have observed, federal treatment of science and research has reached a “crisis point.”

While all administrations are guilty of politicizing science to some degree, government attempts to silence science now happen more frequently and egregiously than ever, from the doctoring of hurricane maps to broadly dismantling federal scientific advisory boards.

The impacts of government attacks on science are dire and concerning. Public health is endangered when scientists are prohibited from speaking to the public; environmental resources are imperiled when scientific research is ignored, and sound policymaking is jeopardized when access to data is restricted.

If you’re a scientist who has experienced or witnessed attempts to silence science, or if you have legal questions related to your work, please contact us to arrange a free, confidential consultation with one of our attorneys.

October 2019 Updates to the Climate Case Charts


Posted on October 7th, 2019 by Tiffany Challe

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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 126

FEATURED CASE

Fourth Circuit Declined to Stay Remand Order in Baltimore’s Climate Case Against Fossil Fuel Companies; Companies Sought Stay from Supreme Court

On October 1, 2019, the Fourth Circuit Court of Appeals denied fossil fuel companies’ motion for a stay pending their appeal of the district court order remanding Baltimore’s climate change lawsuit against the companies to state court. On the same day, the companies filed an application for a stay in the U.S. Supreme Court. On October 2, the district court granted the companies’ motion to temporarily extend its stay of the remand order until the Supreme Court resolves the application. (The district court previously extended the stay of the remand order pending the Fourth Circuit’s resolution of the companies’ stay motion.) The district court said Baltimore could seek to rescind the temporary extension “as improvidently granted” by filing a motion by October 7. On September 30, the Fourth Circuit tentatively calendared oral argument on the companies’ appeal for the December 10–12 argument session. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. Oct. 1, 2019).

Read more »

By Michael Burger and Hillary Aidun

On September 19, the High Court of Ireland issued an important decision upholding the government’s national climate action plan against a legal challenge.  Friends of the Irish Environment claims that the plan fails to set adequately ambitious short-term greenhouse gas emission reduction targets, and is inconsistent with a 2015 statute, the Irish Constitution, and the European Convention on Human Rights (ECHR).  The court, however, concluded that the government acted within its policy making discretion under Irish law.  The court further held that, having determined that the plan was the first of many steps towards Ireland’s midcentury climate goals, it could not find that the plan violated any rights protected by the Irish Constitution or the ECHR.

The decision comes at a busy moment in global climate litigation, with similar lawsuits challenging the adequacy of other governments’ climate ambition pending in Canada (ENVironnement JEUnesse), Germany (Family Farmers & Greenpeace Germany), France (Commune de Grande-Synthe), Norway (Greenpeace Nordic Association & Nature & Youth), Switzerland (Union of Swiss Senior Women), Belgium (VZW Klimaatzaak), the European Union (Carvalho), India (Pandey) and Pakistan (Maria Khan), as well as in the United States (Juliana) and the Netherlands (Urgenda). Greta Thunberg and fifteen other children recently filed a petition with the United Nations Committee on the Rights of the Child claiming that five countries’ failure to address climate change violates their rights under that treaty, and the Torres Strait Islanders recently filed a separate petition with the United Nations Committee on Human Rights claiming that Australia’s climate inaction violates their human rights under international law. In this context, the significance of the High Court’s decision lies not only in its rationale for upholding Ireland’s plan, but also in its recognition that advocacy groups may bring rights-based claims to enforce states’ climate commitments, and of the science underpinning the urgent need to strengthen and meet those commitments. Read more »

                          Climate Strike NYC

Governmental officials, concerned citizens, and experts will gather this week to mobilize climate action during the United Nation’s Secretary General’s Climate Action Summit and Climate Week NYC.  Millions around the world are expected to demand urgent action ahead of these events  in climate strikes inspired by Swedish teenage activist Greta Thunberg. As conversations unfold on how to take immediate action to reduce global greenhouse gas emissions and increase adaptive capacity worldwide, we should consider climate-induced migration. Hurricane Dorian, which devastated the Bahamas this month, demonstrates the importance of addressing displacement, as climate change intensifies the frequency and severity of disasters. A new Sabin Center white paper recommends Free Movement Agreements (FMAs) as a climate-induced migration solution given that no comprehensive governance framework for climate-induced migration yet exists.

FMAs are provisions within (sub-)regional economic integration schemes that liberalize migration restrictions between participating member states.  The European Union is the most common example, but approximately 120 countries worldwide participate in FMAs. Two Caribbean FMAs within the Caribbean Community (CARICOM) and Organisation of Eastern Caribbean States (OECS) provided rights of entry, work, and resettlement to Caribbean nationals displaced during the 2017 Atlantic Hurricane Season.  The Sabin Center report provides a case study of the Caribbean to show how FMAs can close the protection gap for climate-induced migration in other contexts.

Key Report Findings Include:

During the 2017 Atlantic Hurricane Season, the CARICOM and OECS FMAs:

  1. Provided disaster displaced persons a right of entry in other islands;
    • After Hurricane Maria, Trinidad & Tobago used the CARICOM FMA’s 6-month visa-free stay provision to shelter displaced Dominicans.
    • The Antigua, St. Vincent, Grenada and St. Lucia governments welcomed Dominicans, making use of the OECS FMA.
  2. Supported the waiver of travel document requirements where documents had been lost or damaged;
    • Immigration officials admitted Dominicans in some cases without the national identification documents, including passports, that are typically required.
    • Government officials used other forms of identification, including appearance, accent, and family networks, while prioritizing 100% admission of arriving Dominican nationals, and speed of registration and entry.
  3. Granted indefinite stays to some disaster displaced persons, facilitating permanent resettlement;
    • The OECS FMA provides every OECS national the right to an indefinite stay in other OECS territories which allowed disaster displaced OECS nationals to legally resettle.
  4. Eased access to foreign labor markets through a mutual recognition of skills scheme and/or a waiver of work permit requirements;
    • Some displaced CARICOM nationals were able to secure work in other CARICOM islands using CARICOM’s work scheme for skilled nationals.
    • OECS automatically grants the right to work to OECS nationals in any OECS territory, allowing displaced OECS nationals to seek work in other islands.

FMAs should be part of the policy response to climate-induced migration in other regional contexts because they:

  1. Respond to the complex and regional nature of climate-induced migration, offering migration benefits regardless of whether migrants are moving for climate-specific reasons;
  2. Build structural and individual resilience thereby strengthening migration as an adaptation response; and
  3. Can be amended to address climate-induced migration without expending the political capital necessary for global multilateral initiatives.

Read the executive summary and full report here.

Improving Governments’ Approach to Disaster Recovery and Preparedness


Posted on September 18th, 2019 by Tiffany Challe

As the frequency and intensity of natural disasters continue to increase, it is more important than ever for all levels of government to prepare for these disasters and, when they happen, to know how to recover.

Holly Leicht, former Department of Housing and Urban Development (HUD) Region 2 Administrator, has written a practical guide for streamlining and expediting individuals’ as well as municipalities’ and regions’ recovery from disasters, as well as helping governments and households prepare for and mitigate the impact of future events.   The report, entitled “Rebuild the Plane Now: Recommendations for Improving Government’s Approach to Disaster Recovery and Preparedness,” was first published in July 2017 but  is as relevant now as ever.

Leicht oversaw New York and New Jersey’s recovery from Sandy during her tenure at HUD.  She makes 41 recommendations for improving disaster preparedness and recovery at the federal, state and local levels. The recommendations – many of which informed bills currently working their way through both houses of Congress – range from legislative and policy changes to better coordination and communication among government entities.

Highlights among the recommendations include:

    • Federal agencies should develop a single web portal and common application for those seeking disaster aid.
    • Congress and the White House should give HUD standing authority to issue CDBG-DR funding after a Presidentially declared disaster.
    • Readiness standards should be incorporated into all local, state and federally funded capital projects, including any future federal infrastructure bills.
    • State and local grantees of federal recovery funds should strongly consider creating a single office or entity dedicated to administering those funds and overseeing recovery programs.
    • State and local governments should pursue a multi-pronged approach to disaster preparedness that combines planning, buyouts, resilient infrastructure, land use and zoning measures, and public outreach.

 

The report is linked here.

By Dena Adler

A newly released Sabin Center White Paper, “State Hazard Mitigation Plans & Climate Change: Rating the States 2019 Update,” reviews how well the states have integrated climate change into their State Hazard Mitigation Plans (SHMPs). SHMPs serve as “blueprints” for state efforts to prepare for natural and man-made hazards and must include consideration of changing future climate conditions based on 2016 guidance from the Federal Emergency Management Agency (FEMA). States must submit SHMPs to FEMA and update them every five years to remain eligible to receive certain types of non-emergency disaster assistance, including funding for mitigation projects.

Key Report Findings Include:

  • The Majority of States Now Recognize Climate Change Explicitly in Their SHMPS: In the 2019 SHMP Report, 49/53 states and territories achieved a category 3 or higher ranking, which means they explicitly recognize and discuss climate change in their plans. (See Figure 1’s caption for description of category ranking system.)

 

Figure 1: Map of State Hazard Mitigation Plan (SHMP) Climate Change Ranking

The SHMPs are ranked into 5 categories, with “1” indicating SHMPs that did not recognize climate change or did so inaccurately and “5” indicating plans with extensive consideration of how climate change will affect hazards, is integrated into planning, and should be mitigated through adaptation actions.

Read more »

This week, Hillary Aidun joins the Sabin Center as the 2019-2021 Climate Law Fellow.  Hillary’s work will focus on domestic and international climate change litigation, regulation of greenhouse gas emissions, and assessment and disclosure of climate risk, among other things.

Hillary previously served as a law clerk to the Honorable Robert N. Chatigny of the U.S. District Court for the District of Connecticut and the Honorable Barbara A. Lenk of the Supreme Judicial Court of Massachusetts.  Hillary earned her J.D. at Yale Law School, where she was a founding member of the Environmental Justice Clinic and participated in the Environmental Protection Clinic. Before law school Hillary studied conservation efforts in the Amazon Rainforest as a Fulbright Fellow.  She holds a B.A. from Middlebury College.

Amy Turner also joins the Sabin Center as a senior fellow for our newly launched Cities Climate Law Initiative. This new effort will work with city legal departments and sustainability offices, and the networks that link them together, to provide key resources to efficiently and effectively address legal questions confronting the urban climate transition. This initiative is in partnership with the Urban Sustainability Directors Network and is generously supported by the Kresge Foundation.

Prior to her work with the Sabin Center, Amy was the executive director and a co-founder of the NYC Climate Action Alliance, and she continues to serve on its board of directors. She practiced environmental and transactional law for ten years at Davis Polk & Wardwell LLP, Milbank, Tweed, Hadley & McCloy LLP and in solo practice. Amy graduated from Middlebury College, magna cum laude, and from Harvard Law School, where she was an articles and technical editor for the Harvard Environmental Law Review. She currently serves as co-chair for the New York City Bar Association’s Committee on Environmental Law and as secretary of the board of directors for the Brooklyn Greenway Initiative.

Finally, we welcome Moira K. O’Neill as an associate research scholar, specializing in local government law, land use, and city planning.

At Columbia, Moira teaches Community Development and Local Government Law & Politics in the Graduate School of Architecture, Planning, and Preservation. She also holds an academic appointment at UC-Berkeley’s Center for Law, Energy, and the Environment. Moira’s research and teaching build on more than a decade of professional experience in legal practice and consulting for public entities. Her former clients include cities, housing authorities, school districts, and public universities throughout California.  Her legal experience also includes clerking for the Honorable Saundra Brown Armstrong of the United States District Court, Northern District of California, and working as a law clerk in the office of the Environment and Natural Resources Unit, Civil Division, Department of Justice. Moira received her juris doctor, Order of the Coif, from the University of California, Hastings College of the Law in 2006.

We are thrilled to have Hillary, Amy, and Moira on board, and look forward to sharing their work soon.

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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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