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.

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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).

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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.

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Burger_M_0Former environmental litigator and Columbia Law School graduate Michael Burger ’03 was recently named the first executive director of the Law School’s Sabin Center for Climate Change Law. Burger, who currently serves as an associate professor of law at Roger Williams University School of Law in Rhode Island, will formally join the center in January.

“Michael’s addition will allow our center to reach a new level,” said Michael B. Gerrard, Center director and the Andrew Sabin Professor of Professional Practice. “I look forward to working with him on expanding our research and education programs and making an even greater impact.”

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Challenges to EPA’s Proposed Carbon Rules: What If They Succeed?


Posted on September 5th, 2014 by Meredith Wilensky
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By Michael B. Gerrard

Smoke stackThe Clean Power Plan proposed by the Environmental Protection Agency in June is the centerpiece of the Obama Administration’s efforts to fight climate change. Coal-fired power plants are by far the largest source of greenhouse gas emissions in the United States, and the EPA proposal would require the states to prepare plans to reduce those emissions.

Members of Congress from states that mine or use a lot of coal are trying to halt this plan, and already three lawsuits have been filed against it. These lawsuits may well be dismissed as premature; ordinarily suits cannot be brought against regulations that are not yet final.

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Announcing SCCCL’s Climate Change Adaptation Resource Page


Posted on August 29th, 2014 by Meredith Wilensky

Adaptation Resource PageThe Sabin Center for Climate Change Law has created a new Climate Change Adaptation Resources page. It is organized by federal and state efforts agencies ranging from the Environmental Protection Agency to the U.S. Department of Transportation. The State Adaptation Resources Page contains links to climate change adaptation efforts conducted by states and the localities and cities found within them. In addition, throughout the process of compiling our own climate change adaptation database, we came across several other useful databases. Links to these are provided as well.

Sage-Grouse Protection Threatens Growth of Renewable Energy


Posted on August 14th, 2014 by Akiko Shimizu

by Jordana Fremed, Summer Intern

5162182815_53f666206f_zIn September 2015, the U.S. Fish and Wildlife Service will decide whether or not to list the greater sage-grouse as threatened under the Endangered Species Act of 1973.[1] The proposed listing has caused conflict between two groups of environmentalists: conservationists and advocates of renewable energy such as wind power.

The greater sage-grouse, or Centrocercus urophasianus, is a chicken-like bird known for its eccentric mating strut. The bird is found in grassland areas, specifically sagebrush country, in the western United States and southern Alberta and Saskatchewan in Canada. The sage-grouse has experienced a rapid population decline in the past century due to loss of habitat from grazing, logging, and the installation of wind farms.In order to thrive, the species needs large open spaces unrestricted by tall structures such as trees or windmills where predators might perch.[2] Read more »

By Michael B. Gerrard

construction-391597_640The National Environmental Policy Act (NEPA), signed into law by President Richard Nixon on January 1, 1970, was the first U.S. environmental statute of the modern era. It requires the preparation of environmental impact statements (EISs) for major federal actions that may have a significant impact on the environment. NEPA has gone a long way to improving federal decision-making. Similar laws have been adopted in many states and in most other advanced countries.  Environmental impact review has become so pervasive that the International Court of Justice has declared it to be part of customary international law.

When climate change emerged as a significant issue in the late 1980s and early 1990s, pressure rose to consider greenhouse gas emissions under NEPA.  Several federal court decisions declared this to be appropriate. However, the federal agency with the job of overseeing the implementation of NEPA – the Council on Environmental Quality (CEQ) – had not issued regulations requiring such analysis. Thus in 2008 the International Council for Technology Assessment, the Natural Resources Defense Council (NRDC), and the Sierra Club formally petitioned CEQ to adopt such regulations.  I represented NRDC as their pro bono lawyer in this case. Read more »

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