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. The additions to the charts from August to December 2014 are included below, organized by their case chart category. 

U.S. Climate Litigation Chart

 

Non-U.S. climate Litigation Chart

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81gM5SUia7LA comprehensive 602-page survey of state climate change laws has been posted as a supplement to GLOBAL CLIMATE CHANGE AND U.S. LAW, 2d ed. (Michael B. Gerrard and Jody Freeman, editors).

The survey was prepared by Kelly Nishikawa, Benjamin Lowenthal and other students at Pace Law School’s Global Center for Environmental Legal Studies, under the oversight of the Associate Director of Environmental Law Programs, Laura Jensen. This very valuable reference document accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014), available online at the ABA webstore. It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels and renewable energy legislation (such as tax credits for hybrid vehicles) are very similar from state to state; some laws have a short duration and therefore may not be codified (such as temporary tax credits); energy legislation is being enacted at an increasing pace. As a result, not all energy efficiency, alternative fuels and renewable energy legislation and other activity in every state are included in this compilation.

A PDF of the supplement is available at the ABA Website.

Italian Scientists’ Convictions for Not Predicting Earthquake Reversed

In the early hours of April 6, 2009, a magnitude 6.3 earthquake struck central Italy, with the epicenter near the medieval city of L’Aquila.  The 20-second earthquake left over 300 people dead, over 1,500 injured, and over 65,000 homeless in L’Aquila and 45 surrounding towns. [1] [2]

In a 2012 decision widely condemned by the international scientific community, an Italian judge ruled that six scientists and one government official had committed manslaughter by failing to inform local residents of the risks prior to the earthquake.  The judge sentenced the seven defendants to six years in prison, permanently barred them from public service, and ordered them to pay court costs and damages totaling roughly $10.2 million.[3]  Last month, an appellate court overturned the six scientists’ convictions; it upheld the government official’s conviction, although it reduced his sentence to two years on “suspension,” meaning he only will serve time if he commits another crime.[4]

Some early media reports claimed that science itself had been on trial but the initial ruling, while still disturbing to many observers, was a bit more complicated:  The trial judge (Italy does not generally use juries) found that the seven defendants were criminally negligent because of their participation in a government meeting on seismic risks the week before the earthquake struck.[5]  Frequent tremors had been occurring near L’Aquila for months, and the scientists advised the government official and others that a large earthquake was possible but unlikely.  Separately, the government official promulgated a message that there was “no danger” of an earthquake and he theorized the tremors even indicated “it’s a favorable situation because of the continuous discharge of energy” (a claim most seismologists dispute).[6]

The prosecution alleged that the defendants had failed to fulfill their duty to supply residents “all the information available to the scientific community on the seismic activity of the last few weeks” before the earthquake.[7]  The trial judge agreed, finding that the defendants had directly contributed to the deaths of at least 29 specific people who had stayed in their homes as a result of the government official’s message but normally would have evacuated.[8]  The defendants appealed, and under Italian law, they were free during the appeal process.[9]

The appellate court reversed the scientists’ convictions, and shortened the government official’s conviction.  Although lessened, the official’s conviction remained because of his role in reassuring the public with claims that were contradicted by science, which included a recommendation that locals sit back and enjoy a glass of wine instead of worrying about earthquakes.[10]  While the trial judge found that the scientists had implicitly supported the official’s mistaken statements – or had not done enough to counteract them – and were therefore equally guilty, the appellate court announced that any evidence of crimes by the scientists “does not exist.”[11]

Scientists the world over have expressed relief, and the attorney for one scientist defendant said his client could never understand why he was “put on trial for having expressed a scientific opinion.”[12]  The American Geophysical Union, an international association of geophysicists, released a statement that the “acquittal is an important step in sanctioning the role scientists play in advising governments and communicating the results of their research to the public.  Scientists must be able to exchange data and information in an unfettered manner and make good-faith efforts to present the results of their research without fear of prosecution.”[13]  However, many L’Aquila residents were upset with the appellate court’s decision, shouting “Shame! Shame!” when the decision was read.[14]

A full written opinion by the appellate court is due to be filed in February 2015.[15]

Even after the appellate court files its full written opinion, this story may not be over.  The prosecutor or the victims’ families may choose to appeal once more, to Italy’s highest court (the Court of Cassation).  The prosecutor may also choose to prosecute the government official’s boss, who was recorded as referring to the seismic risk meeting as a “media move” to calm the public.[16]

 

Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund

 

[1] http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3541886/

[2] http://blogs.scientificamerican.com/history-of-geology/2012/04/06/april-6-2009-the-laquila-earthquake/

[3] http://www.nature.com/news/italian-court-finds-seismologists-guilty-of-manslaughter-1.11640

[4] http://sites.agu.org/newsroom/files/2014/11/LAquila_Verdict.pdf

[5] http://www.nature.com/news/italian-court-finds-seismologists-guilty-of-manslaughter-1.11640

[6] http://www.nature.com/news/2011/110914/full/477264a.html

[7] http://sites.agu.org/wp-content/uploads/2014/10/LAquila_7.pdf

[8] http://www.nature.com/news/italian-court-finds-seismologists-guilty-of-manslaughter-1.11640

[9] http://news.sciencemag.org/earth/2013/01/judge-laquila-earthquake-trial-explains-his-verdict

[10] http://www.economist.com/news/science-and-technology/21632459-six-seven-scientists-convicted-earthquake-advice-have-been-cleared-laws

[11] http://sites.agu.org/newsroom/files/2014/11/LAquila_Verdict.pdf

[12] http://sites.agu.org/newsroom/files/2014/11/LAquila_Verdict.pdf

[13] http://news.agu.org/press-release/international-scientific-society-reacts-to-laquila-seismologists-acquittal/

[14] http://news.sciencemag.org/earth/2014/11/updated-appeals-court-overturns-manslaughter-convictions-six-earthquake-scientists

[15] http://sites.agu.org/newsroom/files/2014/11/LAquila_Verdict.pdf

[16] http://sites.agu.org/newsroom/files/2014/11/LAquila_Verdict.pdf

Lima Report: Thursday, December 4, 2014 & Friday, December 5, 2014


Posted on December 5th, 2014 by Jennifer Klein
FullSizeRender

WRI on the development of a 2015 agreement

Jennifer M. Klein, Esq., Associate Director & Fellow
Meredith Wilensky, Esq., 2013-2014 Associate Director & Fellow

During the past two days, negotiators have continued to work their way through draft text. When observing negotiations, it quickly becomes clear that the COP has its own distinct vernacular, with commonplace terms taking on new meaning. Here, we define a few of the most prevalent terms demonstrating key issues underlying the negotiations.

Adequacy – This term refers to the ability of any agreement to achieve the COP’s ultimate objective to stabilize atmospheric GHG levels so as to prevent dangerous anthropogenic interference with the climate system. Parties have repeatedly noted that for the 2015 agreement to be “adequate,” countries’ Intended Nationally Determined Contributions must reduce GHG emissions enough to stay within the global carbon budget. Dr. Pachauri emphasized during the opening session on Monday that, according to the IPCCC’s Fifth Assessment Report, we have already used 65% of this budget.

Ambition – This term refers to the collective will of the Parties to cut global GHG emissions enough to achieve adequacy. Throughout the Lima negotiations and side events, parties have worked to raise ambition for the 2015 agreement by highlighting the need to commit to deeper emissions cuts. Read more »

Lima Report: Wednesday, December 3, 2014


Posted on December 4th, 2014 by Jennifer Klein

Jennifer M. Klein, Esq., Associate Director & Fellow
Meredith Wilensky, Esq., 2013-2014 Associate Director & Fellow

Source: UNFCCC

     Source: UNFCCC

On Day 3 of COP20, the ADP continued detailed discussions of the draft negotiating text in breakout sessions. The morning sessions addressed portions of the text by topic, including adaptation and finance. Tensions built in the afternoon session surrounding disagreement over the negotiation process.

A few themes emerged in the ADP session focused on adaptation. Discussions highlighted questions about how much reporting and international review is appropriate to monitor adaptation efforts. Parties also discussed the text’s inclusion of a long-term adaptation goal, with many challenging the goal’s link to a temperature limit. Many parties weighed in on whether loss and damage should be included under adaptation or addressed as a separate component of a 2015 agreement. A number of issues also arose with respect to developing countries, including concerns about the burdens of additional obligations and the lack of differentiation between developed and developing nations in the draft text. Read more »

Shipping emissions issues make an appearance at Lima negotiations


Posted on December 3rd, 2014 by Jennifer Klein

Meredith Wilensky, Esq.
2013-2014 Fellow

contianer ship NOAASCCCL has been on the lookout at the Lima climate negotiations for developments related to reducing GHG emissions from international shipping. The Kyoto Protocol excluded shipping emissions from reductions targets.[1] Instead, the Protocol directed countries to work through the International Maritime Organization (IMO), the United Nations’ specialized agency on shipping, to limit emissions from this sector.

Efforts by the IMO to address shipping emissions have been underwhelming. The agency has developed two emissions reductions measures: the Energy Efficiency Design Index (EEDI) is a technical measure that sets mandatory efficiency requirements for new ships, and the Ship Energy Efficiency Management Plan (SEEMP) is an operational management tool to improve efficiency primarily through fleet management. While these measures will improve overall shipping efficiency, the IMO has acknowledged that they will be insufficient to prevent a future rise in emissions from the sector. The limited effect of the measures is due in part to their focus on new ships. Existing ships have a long life expectancy and will be responsible for the majority of emissions from the sector in coming decades. The IMO’s unambitious measures inspired SCCCL’s white paper published earlier this year addressing state authority to regulate shipping emissions beyond international standards. Read more »

CNFF Blog Image 2By: Daniel P. Selmi*

Visiting Scholar, Sabin Center for Climate Change Law and Fritz B. Burns Professor of Law, Loyola Law School

In an emphatic opinion, a state appellate court has invalidated the environmental impact report for the first “sustainable communities strategy” prepared by a regional council of government in California. In Cleveland National Forest Foundation v. San Diego Association of Governments,[1] the court found that the impact report did not evaluate the plan’s consistency with an executive order setting reduction targets for greenhouse gas (GHG) emissions. The report also did not sufficiently analyze alternatives and mitigation measures. Unless the California Supreme Court hears the case, the opinion will ensure that sustainable community strategies, which integrate transportation planning with efforts to reduce GHGs, must undertake a long-range examination of how those plans will affect such reductions.

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Lima Report: Tuesday, December 2, 2014


Posted on December 2nd, 2014 by Jennifer Klein

Jennifer M. Klein, Esq.
Associate Director & Fellowchart

International negotiators descended on the Pentagonito for Day 2 of COP20 this morning. After yesterday’s opening ceremony and initial events, people seem determined to start working in earnest towards a draft agreement.

The day began with a plenary meeting of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP). The mandate of the ADP is to develop a protocol, another legal instrument, or an agreed outcome with legal force to be adopted next year at COP21. ADP Co-chair Kishan Kumarsingh opened the plenary with a strong reminder to the parties to engage in productive discussions; specifically, he emphasized that parties should avoid making general statements and merely restating their positions. Instead, they should clearly and concisely provide specific suggestions.

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Lima Report: Monday, December 1, 2014


Posted on December 2nd, 2014 by Jennifer Klein

Jennifer Klein, Esq., Associate Director and Fellow
Meredith Wilensky, Esq., 2013-2014 Associate Director and Fellow

logoThe annual United Nations Climate Change Conference began today in Lima, Peru. The two week event is being held at the Cuartel General del Ejercito del Peru, a military headquarters also known as the “Pentagonito” (the little Pentagon). This morning, thousands of people representing at least 190 countries streamed into the venue to participate in and observe the negotiations.

Marcin Korolec, President of COP 19 in Warsaw, Poland opened the session this morning. After brief comments, he ceded the podium to the newly elected President of COP 20, Peruvian Minister of Environment Manuel Pulgar-Vidal. Mr. Pulgar-Vidal emphasized that the talks are crucial if the parties are to reach an agreement at next year’s UN conference in Paris.

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Jennifer M. Klein, Esq.
Associate Director & Fellow

Plaquemines ParishThe Federal Energy Regulatory Commission (“FERC”) recently directed a company seeking to build a natural gas facility to submit information regarding potential climate change impacts on the facility. FERC’s instructions come after the Sabin Center for Climate Change Law (“SCCCL”) submitted letters to the agency regarding its legal obligation to consider future climate conditions when reviewing proposed projects.

Louisiana LNG Energy, LLC (“LLNGE”) is seeking approval from FERC to build and operate a liquefied natural gas (“LNG”) facility in Plaquemines Parish, a hurricane-prone area at the southernmost tip of Louisiana. Last month, FERC announced its intent to prepare an environmental impact statement (“EIS”) for the project. SCCCL submitted comments regarding the scope of the proposed EIS. SCCCL explained FERC’s obligation under the National Environmental Policy Act (“NEPA”) to address projected sea level rise and associated increases in flooding and storm surge in connection with the planned LNG facility and urged FERC to consider measures to ameliorate projected physical impacts.

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