July 2019 Updates to the Climate Case Charts

Posted on July 3rd, 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.



Federal Court Said Baltimore’s Climate Case Against Oil and Gas Companies Belonged in State Court

The federal district court for the District of Maryland remanded the City of Baltimore’s climate change lawsuit against oil and gas companies to state court. The court concluded that federal question jurisdiction did not exist and also rejected alternative bases for federal jurisdiction. First, the court rejected the defendants’ argument that federal common law governed Baltimore’s state law nuisance claim as a “cleverly veiled preemption argument.” The court said ordinary preemption was merely a defense and did not permit it to treat the claim as if it had been pleaded under federal law for jurisdictional purposes. The court further concluded that federal common law would not support removal even under the complete preemption doctrine because the defendants had not shown that any federal common law claim for public nuisance was available and case law suggested that the Clean Air Act displaced any such claim. Second, the court found that the case did not fall within the “slim category” of cases in which federal question jurisdiction exists for state law claims that raise substantial and disputed federal issues. Although the court acknowledged that there were “federal interests in addressing climate change,” the court said the defendants had not established that “a federal issue” such as foreign policy or a federal regulatory scheme was a necessary element of Baltimore’s claims. Third, the court rejected the argument that the foreign affairs doctrine or the Clean Air Act completely preempted Baltimore’s claims. Fourth, the court found no basis for federal jurisdiction based on defendants’ activities on federal enclaves. Regarding the alternative bases for removal jurisdiction, the court found that the defendants did not demonstrate that jurisdiction existed under the Outer Continental Shelf Lands Act, or that the claims were removable under the federal officer removal statute, the bankruptcy removal statute, or admiralty jurisdiction. Pursuant to a stipulation by the parties, the remand order is temporarily stayed. The defendants are seeking to stay the order pending their appeal to the Fourth Circuit. Mayor & City Council of Baltimore v. BP p.l.c., No. 1:18-cv-02357 (D. Md. June 10, 2019).

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On Friday the White House Council on Environmental Quality (CEQ) unveiled new draft guidance on the consideration of climate change in National Environmental Policy Act (NEPA) reviews. This is intended to replace the final CEQ guidance that was issued by the Obama administration in 2016 and subsequently revoked by President Trump. As with the 2016 version, this new draft guidance reflects CEQ’s interpretation of NEPA requirements but does not in and of itself create new legal obligations or affect existing obligations.

The draft guidance is not as significant a departure from its 2016 predecessor as one might expect based on other actions that the Trump administration has undertaken to roll back federal climate protections and advance its pro-fossil fuel agenda. The draft guidance acknowledges that greenhouse gas (GHG) emissions are an environmental impact, that both direct and indirect GHG emissions should be quantified where it is practicable to do so, and that “comparing alternatives based on potential effects due to GHG emissions… can help agencies differentiate among alternatives.” It also acknowledges that agencies should account for the effects of climate change on baseline environmental considerations where that analysis would not be overly speculative. These provisions are generally consistent with judicial interpretations of what NEPA requires.

The draft guidance does contain a number of statements which appear aimed at limiting NEPA disclosures of GHG emissions and climate change impacts, but these are unlikely to have a significant effect on agency practice or judicial review for several reasons: (i) as noted above, the guidance does not carry the same legal force as the statute or implementing regulations; (ii) the guidance does not represent a major departure from current agency practice, and (iii) many of these statements are too vague to contain meaningful instruction.

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Four Important Points About EPA’s Affordable Clean Energy Rule

Posted on June 20th, 2019 by Jessica Wentz

By Dena Adler, Jessica Wentz, and Romany Webb

On Wednesday, June 19, the U.S. Environmental Protection Agency (EPA) finalized its so-called Affordable Clean Energy (ACE) rule. The ACE rule repeals and replaces the 2015 Clean Power Plan (CPP) which aimed to reduce carbon dioxide emissions from existing power plants by 30% below 2005 levels by 2030. To that end, the CPP established state-specific targets for reducing emissions from the electric power sector, and required states to develop plans for achieving those targets. The ACE Rule takes a different approach, directing states to set standards of performance for individual power plants, and thus effectively allowing them to decide how much to cut emissions. Here are 4 important things to know about the ACE Rule:

1. The ACE Rule Directs States to Establish Performance Standards for Power Plants Based Solely on Heat Rate Improvements: Section 111(d) of the Clean Air Act (CAA) provides for the establishment of “standards of performance” for certain existing sources of air pollution. Under the Act, the standards must reflect the emissions reductions that can be achieved through application of the “best system of emission reduction” (BSER) for the pollutant and source.

In the CPP, the EPA defined the BSER for carbon dioxide emissions from existing power plants based on three “building blocks,” reflecting (1) heat-rate improvements at coal-fired power plants, (2) increased utilization of natural gas combined cycle units, and (3) increased use of renewable energy. However, EPA has now concluded that BSER should not include so-called “outside the fence line” measures, such as those in building blocks 2 and 3. To justify that conclusion, EPA points to section 111(a) of the Clean Air Act, which requires standards of performance to reflect the emissions reductions achievable through “application” of the BSER. Thus, according to EPA, the BSER must comprise systems that can be “applied” or “put into operation” at the emissions source (i.e., in the case of the ACE Rule, the power plant). Contrary to its previous view, EPA asserts that the BSER “cannot be premised on a system . . . that is implementable only through the combined activities” of multiple sources, such as generation switching (see point 2 below for more on this).

The ACE Rule redefines the BSER to only include on-site, heat-rate efficiency improvements at coal-fired power plants. The Rule includes a list of “candidate technologies” for improving heat-rate efficiency that states can use to establish standards of performance for individual power plants. (This is consistent with the approach in the proposed rule published by EPA in August 2018 and discussed in our previous blog post here). The standards will, therefore, be significantly less stringent than those established under the CPP and result in fewer emissions reductions. According to EPA, the ACE Rule will reduce carbon dioxide emissions by just 11 million short tons in 2030, whereas the CPP would have delivered emissions reductions of 415 million tons (both relative to a no action baseline).

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The Trump administration has undertaken a sweeping portfolio of actions aimed at weakening federal climate protections and promoting the development and use of fossil fuels.

A new report from Columbia Law School’s Sabin Center for Climate Change Law takes a critical look at what this effort has actually accomplished. It concludes that the administration has achieved far less than meets the eye, due to the statutory safeguards for federal agency rulemaking and judicial intervention to enforce those safeguards. There are dozens of different deregulatory actions underway at various agencies, the most notable examples being the planned rollbacks of rules like the Clean Power Plan and the motor vehicle greenhouse gas emission standards. But in most cases, the pace of the rollbacks has been slow. This is particularly true where the administration is seeking to repeal or revise major regulations, as the administration must adhere to notice-and-comment procedures and must also justify changes to these rules in light of the statutory provisions it is implementing.

The following figure shows the status of efforts to rollback regulations aimed at controlling greenhouse gas emissions and other externalities of fossil fuel use:


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By Romany Webb

Last Tuesday, June 4, the D.C. Circuit decided the latest in a string of cases challenging the Federal Energy Regulatory Commission (FERC)’s approval of new interstate natural gas pipelines. The case – Birckhead v. FERC – focused largely on FERC’s obligation to consider the climate change impacts of pipeline development, which has recently become a key point of debate both within and outside the Commission. Much of the debate has centered on FERC’s obligations under the National Environmental Policy Act (NEPA). Comparatively little attention has been devoted to the obligations imposed on FERC by other statutes. That is the focus of a new Sabin Center working paper – “Climate Change, FERC, and Natural Gas Pipelines”– published today. The paper argues that the Natural Gas Act (NGA) establishes an independent requirement for FERC to consider climate change impacts when approving interstate natural gas pipelines. To support that argument, the paper provides a detailed analysis of section 7 of the NGA, which governs FERC’s pipeline approval process.

Under section 7 of the NGA, before approving an interstate natural gas pipeline, FERC must find that it “is or will be required by the present or future public convenience and necessity.” FERC’s finding must be based on an evaluation of “all factors bearing on the public interest,” which necessitates a broad-ranging assessment of the need for pipeline development and its likely impacts. While FERC purports to consider both economic and environmental impacts as part of its assessment, a review of recent pipeline approvals shows that it often focuses solely on economic issues. Even where environmental factors are considered, FERC typically fails to assess the full climate change impacts associated with pipeline development, including the greenhouse gas emissions resulting from “upstream” natural gas production and “downstream” use. This not only undermines the quality of FERC’s decision-making, but also arguably violates section 7 of the NGA.

In Birckhead v. FERC, as well as numerous other cases, the courts have recognized that the environmental impacts of pipeline development are relevant to FERC’s assessment of public convenience and necessity under section 7 of the NGA. In its early decisions under section 7, FERC routinely considered upstream and downstream environmental impacts, often with the approval of the courts. The court decisions, as well as the language and history of section 7, strongly suggest that FERC is legally required to consider upstream and downstream impacts under the NGA. FERC must, therefore, change its approach to evaluating pipeline projects. Going forward, FERC must consider projects’ full climate change impacts, including upstream and downstream greenhouse gas emissions. That could have significant implications for the approval of projects since, after accounting for upstream and downstream emissions, FERC may be unable to conclude that pipeline development is required by the public convenience and necessity.

By Dena Adler

The Trump Administration is losing on climate in the courts. More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge.   Nevertheless, climate change is one arena where the Trump Administration’s rollbacks have been both visible and real. In total, the Sabin Center’s U.S. Climate Deregulation Tracker identifies a total of 94 actions taken by the executive branch in 2017 and 2018 to undermine and reverse climate protections.

But despite the Trump Administration setting a high-water mark for climate change deregulation, a new Sabin Center working paper, “U.S. Climate Litigation in the Age of Trump: Year Two” finds that due to vigilant litigation, the courts have largely constrained extralegal rollbacks and other attempts by the Trump Administration to undermine climate protections by overreaching executive authority, violating statutory requirements for environmental review, or flouting administrative law—at least thus far. (An executive summary of the paper is also available.) This paper updates a report on climate change litigation during the first year of the Trump Administration. Read more »

June 2019 Updates to the Climate Case Charts

Posted on June 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.



D.C. Circuit Upheld FERC Approval of Pipeline Project Despite Concerns About Analysis of Upstream and Downstream Greenhouse Gas Impacts

The D.C. Circuit Court of Appeals rejected a challenge to the Federal Energy Regulatory Commission’s (FERC’s) environmental review for a natural gas compression station in Tennessee despite the court’s “misgivings” regarding FERC’s “decidedly less-than-dogged efforts” to obtain the information it would need to determine that greenhouse gas emissions were a reasonably foreseeable indirect effect of the project. FERC had declined to consider the impacts of upstream gas production and downstream gas combustion in its National Environmental Policy Act (NEPA) review, concluding that such impacts did not qualify as indirect effects of the project. With respect to upstream emissions, the D.C. Circuit found that the petitioners had failed to rebut FERC’s conclusion that the record did not provide evidence to establish the necessary causal relationship between the project and upstream gas production. The court indicated that such evidence might include the number and location of any wells that would be drilled as a result of production demand created by the project. The court also said the petitioners failed to “meaningfully dispute” FERC’s assertion that it would be futile to ask applicants to provide such information. Regarding downstream emissions, the court rejected FERC’s position that downstream emissions were not reasonably foreseeable because gas associated with the project might displace higher-emission fuels or otherwise offset emissions. The court also rejected FERC’s contention that FERC could not be considered the “legally relevant cause” of downstream emissions because it lacked jurisdiction over any party other than the project applicant. The court concluded that FERC is a “legally relevant cause” of such effects because the Natural Gas Act directs FERC to consider “the public convenience and necessity” and therefore provides FERC with statutory authority to act on information about the direct and indirect environmental effects of projects it approves. The court also said it was “troubled” by FERC’s reliance on a lack of information about the destination and end use of gas to justify its decision not to consider the downstream impacts. The court wrote: “It should go without saying that NEPA also requires the Commission to at least attempt to obtain the information necessary to fulfill its statutory responsibilities.” In this case, however, the petitioners had not raised the issue of FERC’s failure to develop the record in the proceedings before FERC. The court therefore concluded that it lacked jurisdiction to decide whether FERC had violated NEPA by failing to further develop the record. The court also rejected an argument that FERC had failed to adequately assess alternative sites for the project. Birckhead v. Federal Energy Regulatory Commission, No. 18-1218 (D.C. Cir. June 4, 2019).

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The Paris Agreement – Au Revoir?

Posted on May 24th, 2019 by Tiffany Challe

by Susan Biniaz*

On June 1st, we will hit the two-year mark since President Trump announced his intention to pull the United States out of the Paris Agreement.  We are also getting closer to November 4th, the first day on which the withdrawal process can actually begin.  While there is no realistic expectation that the Administration will reconsider its decision to withdraw, it is nonetheless worth stepping back to examine various facts and fictions surrounding the Agreement, U.S. withdrawal, and related issues.


What Does the Paris Agreement Do?

  • The Paris Agreement combines agreed global goals with national flexibility.
  • A key goal is to limit the increase in global average temperature to well below 2oC (and to pursue efforts to limit it to 1.5o).
  • Each Party decides on its own greenhouse gas emissions targets, reflected in a so-called “nationally determined contribution,” taking into account its unique national circumstances. Targets are not legally binding, meaning it is not a violation of the Paris Agreement if a Party does not achieve its target.
  • There are strong reporting and review provisions, so we know the level of greenhouse gases each Party is emitting and what kind of progress it is making in implementing its targets.
  • There are also regular global reviews, so we can assess how the world is doing collectively.
  • All countries are covered by the terms of the Agreement, and nearly all of them have joined.


That Sounds Like the Opposite of the Kyoto Protocol.

  • That’s right.
  • As will be recalled, the United States never joined the Kyoto Protocol.
  • Kyoto contained emissions targets that were internationally negotiated and legally binding. Developing countries, even those with significant rising emissions, had no targets.
  • Even before the Kyoto negotiations were concluded, the Senate expressed its (95-0) view, in the “Byrd-Hagel Resolution,” that any future climate change agreement should neither harm the U.S. economy nor contain legally binding emissions commitments for the United States without also containing binding commitments for developing countries.
  • President Clinton did not pursue Kyoto, in the absence of “meaningful participation” from “key” developing countries, and President George W. Bush more forcefully rejected Kyoto, citing the standard reflected in the Senate Resolution.
  • Late in the second term, President Bush rejoined negotiations under the Framework Convention on Climate Change, an agreement that the United States had joined under President George H.W. Bush.

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The following is testimony submitted by Michael B. Gerrard, Faculty Director of the Sabin Center for Climate Change Law, before the Subcommittee on Energy and Mineral Resources, Committee on Natural Resources, United States House of Representatives, on April 30, 2019. A video of the hearing is available here

Thank you, Chairman Lowenthal, Ranking Member Gosar, and distinguished members of the subcommittee. I am honored to appear before you today.

In 2014 several expert groups issued a report called Pathways to Deep Decarbonization in the United States.[1]  It laid out how the U.S. energy system could be compatible with the two-degree temperature goal. One core element is a massive increase in utility-scale renewables, especially wind and solar. Earlier this month the Environmental Law Institute published a book, Legal Pathways to Deep Decarbonization in the United States, co-edited by Professor John Dernbach and myself.[2]It contains more than 1,000 specific recommendations for federal, state, local and private action to pursue these pathways. Several of them concerned renewables on public lands, and form the basis for my testimony today.

The costs of utility-scale wind and solar have been falling rapidly and, when both operating and capital costs are included, they are cheaper than coal or nuclear, and about the same as natural gas, even without subsidies.[3]  According to the U.S. Department of Energy, the solar and wind industries together employed about 474,000 people in 2017, compared to 160,000 for coal, 362,000 for natural gas, and 515,000 for oil/petroleum.[4]

Given the vast amount of public land, there is tremendous opportunity to increase renewable energy generation and jobs on this land.  The Bureau of Land Management is doing much better with solar than with wind, but there is still a long way to go.

My central point today is that undertaking the required reviews one project at a time is very cumbersome and time consuming. It is much better to look at broad geographic areas and conduct the necessary studies comprehensively. That will help identify the best specific places for renewable projects. Applications for specific projects can then be handled much more quickly, and approvals for construction can be granted with considerably less time and expense.

The Western Solar Plan is a good example of what can be done without new legislation. It involved a programmatic environmental impact statement for solar energy zones. By undertaking a review over a large area that included a detailed examination of species presence and habitat, it satisfied the requirements of both the National Environmental Policy Act and the Endangered Species Act. It has allowed individual projects within the study area to proceed quickly.

The BLM should identify more solar energy areas where this process could be utilized.

With respect to wind, BLM completed a programmatic EIS in 2005 for the western states, but it has not designated any wind energy zones or designated leasing areas for wind.  This makes it very difficult to develop utility-scale wind, and in fact 99% of the installed wind energy capacity in the United States is on private lands.[5]   BLM should undertake the environmental reviews needed to designate wind energy zones, and should resist the creation of too many exclusion zones that prevent renewable projects.

The Forest Service is far behind BLM. Except for one small wind project in Vermont that went online in 2017, there are no utility-scale wind or solar projects on Forest Service land.

Many projects have been stymied by lack of coordination among the multiple federal agencies involved.  The FAST-41 Act,[6]enacted in 2015, provided a mechanism to better coordinate and expedite these efforts. It created a Federal Permitting Improvement Steering Council and a presidential appointee, the Executive Director, with considerable powers.  It has not been used very much under either the Obama or Trump administrations, and it has not been given a sufficient budget to do the job.  The One Federal Decision framework, set forth in an executive order issued by President Trump in 2017,[7]does show some promise if it is implemented vigorously, and if agencies are given adequate staffing and other resources, which has not happened yet.

The Public Lands Renewable Energy Development Act would resolve several of these problems.

It has been introduced in every Congress since 2011. The 2017 version, H.R. 825, would among other things require designation of priority wind areas within three years; require supplementation of old programmatic environmental impact statements for wind, solar and geothermal; require more interagency coordination; and allocate half of the revenues from leases, fees, and the like to the states and counties where the projects are located. All of these provisions would beneficially encourage renewables development on public lands. The Sustainable Energy Development Reform Act, H.R. 4426, introduced on November 16, 2017 would do all of that and considerably more aimed directly at climate change as well as oil and gas leasing.

The Migratory Bird Treaty Act has sometimes tripped up wind as well as fossil projects.  The Trump Administration has changed the longstanding interpretation of this statute as imposing strict liability, and instead declared that there is no violation without intent to kill birds. Three pending lawsuits are challenging the legal validity of the new interpretation.  The mitigation obligations have also not been relaxed. These and other problems leave applicants and their lenders with real uncertainty.[8]It would be better if the Fish and Wildlife Service used its existing statutory authority to establish a process to issue incidental take permits under the MBTA and also under the Bald and Golden Eagle Protection Act. Our book also contains many additional legal recommendations for reducing the hurdles that species protection laws pose to renewable energy development.[9]

There is considerable confusion over what mitigation requirements apply when projects have negative environmental impacts. Regional mitigation provides a way for companies to address mitigation responsibilities quickly and efficiently.  It also helps resolve conflicts with environmental concerns. Establishing consistent and predictable compensatory mitigation requirements would reduce the legal uncertainty that overhangs many projects. Congressional authorization of policy here would be very beneficial.

To sum up, there is great potential for building renewable energy projects on public lands, generating both clean electricity and jobs. Existing laws allow this process to be sped up, and bills pending before this Subcommittee could speed it up even more.

[1]Williams, J.H., B. Haley, F. Kahrl, J. Moore, A.D. Jones, M.S. Torn, H. McJeon (2014). Pathways to deep decarbonization in the United States. The U.S. report of the Deep Decarbonization Pathways Project of the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations. Revision with technical supplement, Nov 16, 2015. Available at http://deepdecarbonization.org/countries/#united-states.

[2]Michael B. Gerrard and John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States(Environmental Law Institute 2019), further information available from https://www.eli.org/legal-pathways-deep-decarbonization-united-states-summary-and-key-recommendations. The chapter most relevant to this hearing has been separately published. Michael B. Gerrard, Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity, 47 Env. L. Rep. 10591 (2017), http://columbiaclimatelaw.com/files/2017/06/Legal-Pathways-for-a-Massive-Increase-in-Utility-Scale-Renewable-Generation-Capacity.pdf.

[3]Lazard, Levelized Cost of Energy Analysis – Version 12.0 (2018), https://www.lazard.com/media/450784/lazards-levelized-cost-of-energy-version-120-vfinal.pdf.

[4]U.S. Department of Energy, U.S. Energy and Employment Report (January 2017), p. 29, https://www.energy.gov/sites/prod/files/2017/01/f34/2017%20US%20Energy%20and%20Jobs%20Report_0.pdf.

[5]U.S. Wind Industry Annual Market Report for the Year Ending 2018.  American Wind Energy Association. Page 78.  Available at: https://www.awea.org/resources/publications-and-reports/market-reports.

[6]Fixing American’s Surface Transportation Act, Title 41, 42 U.S.C. § 4370m.

[7]Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure (August 15, 2017), https://www.whitehouse.gov/presidential-actions/presidential-executive-order-establishing-discipline-accountability-environmental-review-permitting-process-infrastructure/.

[8]SeeRyley Carlock & Applewhite, Bye, Bye Birdie: Summary and Analysis of the Trump Administration’s Recent Policy Change of the Migratory Bird Treaty Act (January 28, 2918), https://www.rcalaw.com/bye-bye-birdie-summary-and-analysis-of-the-trump-administrations-recent-policy-change-of-the-migratory-bird-treaty-act, and Summary and Analysis of the United States Fish and Wildlife Service’s “Guidance on the recent M-Opinion affecting the Migratory Bird Treaty Act” Memorandum (April 13, 2018), https://www.rcalaw.com/summary-and-analysis-of-the-united-states-fish-and-wildlife-services-guidance-on-the-recent-m-opinion-affecting-the-migratory-bird-treaty-act-memorandum

[9]Legal Pathways to Deep Decarbonization in the United States, supra note 2, pp. 482-487.

     Senior Fellow, Romany Webb, opens the workshop

By Romany Webb

Over the last decade, a spate of wildfires, hurricanes, and other storms have painfully illustrated the electricity system’s vulnerability to extreme weather. In 2018 alone, Hurricanes Florence and Michael each left over one million households and businesses in the southeast without electricity, while the Mendocino Complex Fire and others caused widespread electricity outages in the west, and winter storms interrupted service in the northeast. As  I reported in October, some states have responded by pushing electric utilities to better prepare for extreme weather events, recognizing that they will become more frequent and severe due to climate change. At the federal level, however, the risks posed by climate change have been largely ignored of late. Instead, the Department of Energy (DOE) has focused on other supposed threats to the electricity system, purportedly arising from the closure of coal and nuclear generating facilities. Despite a lack of evidence that the closures threaten system reliability or resilience, in September 2017, DOE directed the Federal Energy Regulatory Commission (FERC) to consider adopting rules aimed at supporting coal and nuclear generators.

While ultimately rejected by FERC, DOE’s proposal focused attention on threats to electricity system resilience, and prompted discussion about the role various entities can and should play in address those threats. To inform the discussions, in December 2018, the Sabin Center for Climate Change Law, Center on Global Energy Policy, and Environmental Defense Fund hosted a workshop on electricity resilience. The workshop brought together more than 30 experts from the electricity industry, academic institutions, and NGOs to explore, among other things, how to ensure system resilience in the face of climate change. This blog summarizes the discussions on that topic. Discussions were held under the Chatham House Rule, which prevents statements being attributed to any workshop participant. The participants did not reach agreement on any issue and, as such, this summary does not reflect a “consensus document.”

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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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