By Alyssa Kutner, Summer Legal Intern

4097699785_073813177e_zPresident Barack Obama made an announcement on Wednesday, July 16th introducing a plan to improve the nation’s ability to adapt to climate change through investing in and planning a more climate-resilient infrastructure. Included in the announcement were new programs designed to increase the adaptive flexibility of the country, such as a $10 million Federal –Tribal Climate Resilience Partnership and Technical Program providing adaptation training to tribes and a $13.1 million 3-D Elevation Program, which will provide advanced data and tools to aid communities in preparing for a changing climate.

One particularly interesting component of the plan is a provision on accounting for climate change in state hazard mitigation planning. Hazard mitigation planning is the practice of identifying regulations and courses of action that will minimize future state loss from disaster. If a state prepares only for current flood levels, it is likely that in the future the state’s hazard mitigation preparation will be inadequate to protect homes and families. Incorporation of climate change hazard mitigation planning would address this issue by requiring states to consider how best to anticipate future impacts from climate change, like droughts, flooding, or extreme temperatures. This means, for example, that a state hazard mitigation plan would prepare not only for seasonal flooding, but also take into account climate variability considerations such as sea level rise and the possibility that flood levels will increase over time. Read more »

By Akiko Shimizu, undergraduate intern

cows-358959_640Both houses of the New York State legislature have passed the Community Risk Reduction and Resiliency Act, but Governor Cuomo has yet to sign the bill into law. The purpose of the bill is to amend certain New York legislation to reflect greater awareness and preparedness for climate change associated risks such as sea level rise and flooding. The bill can be read in full text here [1] on the New York State Assembly’s website. 

The bill would amend various sections of the state Environmental Conservation Law, Agriculture and Markets Law, and Public Health Law.  Specifically, the bill would require consideration of future climate change risk in the following statutory provisions or subject areas: Read more »

By Jordana Fremed, Undergraduate Intern (Columbia College)

4677413809_a317500704_zInsecure water availability is a source of friction in the Middle East. One solution to adapt to water scarcity in the area is desalination, a process that turns saltwater into potable drinking water. While desalination can cause environmental impacts, the technology has provided additional water resources to a water-scarce and increasingly tense region with rising temperatures.

Israel’s innovative osmosis desalination mechanism has become a vital step in adapting to decreases in freshwater as a result of rising temperature in an arid land. By 2020, the country’s average temperature is expected to rise 1.5° C in comparison to the years 1961-1990. By 2071, the Intergovernmental Panel on Climate Change anticipates as large as a 5° C increase in temperature in scenario A2, a regionalized business-as-usual path. A series of drought years since the mid-2000s caused a severe decline in both Israel’s water resources and economy [1].  More recently, temperature change in the area is expected to cause extreme occurrences like massive flooding and droughts [2]. Read more »

David Sive Memorial Fund Established at Columbia

Posted on July 24th, 2014 by Ethan Strell

New York, July 24, 2014—David Sive, the 1948 Columbia Law School graduate and pioneering environmental attorney who passed away in March, left a lasting legacy in the field of environmental law, helping set legal precedents that paved the way for preservation in the United States and around the world.

Now, Sive’s legacy will live on at Columbia Law School with the establishment of the David Sive Memorial Fund, made possible by a gift from Sive, Paget & Riesel, the law firm Sive helped found in 1962.

The firm has promised $125,000 over five years for the fund, which will be used to support Columbia Law School lectures, colloquiums, and events on environmental law or issues pertaining to the study of environmental law. The Law School’s Center for Climate Change Law, directed by Professor Michael B. Gerrard, will administer the fund. Read more »

MWskypeOn July 17, CCCL Fellow Meredith Wilensky presented via Skype to the Second International Sustainable Sea Transport in the Pacific Talanoa in Suva Fiji. This conference addresses transport issues unique to the Pacific islands and aims to bring together key stakeholders to facilitate planning for improving sustainability within the industry.

Meredith’s presentation was based on the white paper, Authority of Pacific Island States to Regulate Greenhouse Gases from the International Shipping Sector, which she authored earlier this year. The presentation focused on how international law constrains states’ jurisdiction to regulate international shipping and provided strategies and regulatory options for Pacific island states to develop effective regulation within those constraints. The full text of the white paper is available on the CCCL publications page here.

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By Diane Jung, Undergraduate Intern

6101300489_ed46866554_zOn June 19, 2014 both houses of the Rhode Island legislature passed the Resilient Rhode Island Act of 2014, which addresses climate mitigation, adaptation and resilience, and establishes greenhouse gas emissions reductions targets of 10% below 1990 levels by 2020, 45% by 2035, and 85% by 2050. The bill also provides many guidelines for meeting these targets, such as a focus on improving efficiency in order to reduce its need for “energy from out-of-state sources.” It also calls for “intentional community effort that networks existing capacities in state agencies” and declares a need to establish “new capacities, purposes, goals, indicators, and reporting requirements for climate change mitigation and adaptation in public agencies.” [1] The Resilient RI Act was supported by Governor Lincoln Chafee, a number of state agencies, and academic institutions including Brown University. Read more »

Judge Endorses Use of the Social Cost of Carbon in NEPA Analysis

Posted on July 21st, 2014 by Akiko Shimizu
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By Ellii Cho, Summer Legal Intern

smoke-238241_640In 2010, the U.S. government formed an interagency working group of scientific and economic experts to develop an estimate of the social cost of carbon (SCC). The SCC puts a dollar figure on the damages done or damages avoided for possible scenarios resulting in discrete amounts of carbon dioxide emission. Designed for use in federal rulemakings, the SCC aims to provide a consistent and defensible quantification of the economic impacts of climate change. For example, it is used to assess the climate impact of regulations such as fuel economy standards for cars or appliance efficiency standards. Although the SCC is intended to be comprehensive, some critics have argued that the 2015 estimate of $37 per metric ton of CO2 underestimates the damages by failing to consider all relevant and material data. Read more »

In Contrast to U.S., South Korea Aggressively Pursues Nuclear Power

Posted on July 16th, 2014 by Akiko Shimizu

By Yeein Lee, Summer Legal Intern

namdaemun-326138_640Even as President Obama’s commitment to fight climate change has led his Administration to support low-carbon nuclear power,[1] many U.S nuclear power plants are being shut down or slated to shut down, and fewer companies are seeking licenses to build new plants. Although the US is still the world’s largest producer of commercial nuclear power, with 100 commercial reactors licensed to operate at 65 nuclear power plants and whose nuclear power comprised about 19.4% of the nation’s total electricity in 2013,[2] continued low natural gas prices will likely drive more plant closures, given the high maintenance and capital investment requirements for the ageing fleet. In contrast, nuclear power in South Korea is growing. The growth in nuclear power is particularly interesting, given the considerable public hostility towards nuclear power in South Korea following the 2011 Fukushima disaster in nearby Japan, as well as corruption scandals in its domestic nuclear industry. The trend of net nuclear electricity generation in the U.S. and South Korea can be found in Figure 1.

South Korea already ranks fourth in the world in nuclear power, following the US, France and Russia, and has the highest density of nuclear reactors in the world. Its 23 reactors provide almost one-third of the nation’s electricity, and its government aims to provide about half of the electricity from over 30 units by 2022.[3] Five new nuclear plants are under construction, and four new nuclear plants have been authorized this year. According to the government’s Second Basic Energy Plan from January 2014, which maps out the general national energy policies until 2035, the government aims to reduce total energy consumption by 13% and electricity demand by 15%.[4] The proportion of fossil energy would be reduced from 2011’s 65.5% to 52%, which would require the construction of more nuclear plants, resulting in a total of 41 nuclear plants in 2035. Read more »

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By Brian Park, Summer Legal Intern

seal-39732_640On June 11th, 2014, the Oregon Court of Appeals in Chernaik v. Kitzhaber reversed an Oregon trial court’s dismissal of a climate change challenge mounted under the public trust doctrine. The Court of Appeals ruled that the trial court was required to reach the merits of plaintiffs’ contentions that atmospheric resources constitute a public trust and that the state of Oregon, as a trustee, has failed to fulfill its fiduciary obligation to protect them from adverse impacts of climate change. Although it may seem a minor victory, this opinion represented a meaningful outcome to plaintiffs, coming as it did just six days after the outright denial of a federal public trust doctrine claim by the U.S. Court of Appeals for the D.C. Circuit in Alec L. v. Gina McCarthy.

This Oregon case is one of many across the country brought by Atmospheric Trust Legal Actions (ATL), a coordinated legal effort under the public trust doctrine supported by Our Children’s Trust (OCT) and other non-profit organizations on behalf of youth to compel governments to protect the atmosphere from the dangerous effects of climate change. The public trust doctrine, a common law doctrine that long predated modern environmental law, imposes a duty on governments to protect certain natural resources. The scope of coverage under the doctrine varies considerable from state to state, but in some states water, soil, ocean, seashores, and parklands can neither be privatized nor substantially damaged, but have to be held by the government in trust for the benefits of its citizens, at least unless the state legislature explicitly declares otherwise. ATL advocates are asking courts to apply the doctrine to recognize and protect the collective right to a stable and habitable climate, requiring the protection of the atmosphere as property of present and future generations. Read more »

July Updates to the Climate Litigation Charts

Posted on July 7th, 2014 by Shelley Welton

Update #64 July 2014


Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-US climate litigation charts. The July additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)


Utility Air Regulatory Group v. EPA, Nos. 12–1146, 12–1248, 12–1254, 12–1268, 12–1269, and 12–1272 (U.S. June 23, 2014): added to the “Challenges to Federal Action” slide. The United States Supreme Court ruled that the United States Environmental Protection Agency (EPA) had impermissibly interpreted the Clean Air Act as compelling or permitting a facility’s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA’s determination that “anyway” sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ “best available control technology” (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions “would place plainly excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court rejected EPA’s attempt to fix these problems by “rewriting” statutory emissions thresholds, which the Court said “would deal a severe blow to the Constitution’s separation of powers.” The Court went on to hold, however, that the Clean Air Act’s text clearly supported an interpretation that required BACT for “anyway” sources and that applying BACT to greenhouse gases “is not so disastrously unworkable” and “need not result in such a dramatic expansion of agency authority” as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source’s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase “any air pollutant.” Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it “curious” that the Court departed from a literal interpretation of “pollutant” in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for “anyway” sources. Read more »

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