Arizona Court Reverses Protection for Climate Scientists

Posted on June 22nd, 2016 by Lauren Kurtz

On June 14, an Arizona trial court ruled that the University of Arizona must turn over more than a decade of university climate scientists’ emails to the Energy & Environment Legal Institute (“E&E”), a group that, in its own words, “pepper[s] universities around the country” with open records requests as part of a mission of “free market environmentalism.”  This June 2016 decision is a complete reversal from a March 2015 decision by the same judge, as well as a serious departure from other court cases across the country protecting scientists’ research correspondence.

E&E – formerly named the American Tradition Institute (“ATI”) – has repeatedly used open records laws in attempts to obtain years of publicly funded scientists’ correspondence.  The group’s work has been described as “filing nuisance suits to disrupt important academic research” as part of its work to convince “the public to believe human-caused global warming is a scientific fraud.”  The group has been linked to the coal and oil industries, “major conservative players,” and “organizations opposing action on climate change.”

State and federal open records laws promote government transparency by allowing citizens to request copies of administrative records, but these powerful tools can also be misused:  the Union of Concerned Scientists has found that “open records requests are increasingly being used to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.”  Over years of protracted litigation, courts have often ruled for the protection of academic research in cases from California to West Virginia.  But even when plaintiffs lose, they can still succeed in “confus[ing] the public debate, and forc[ing] universities and scientists to spend hundreds of thousands of dollars defending themselves.”  Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” Read more »

Justin Gundlach
Climate Law Fellow

Heydinger case captionAs round after round has passed in the political and legal struggle at the federal level over regulating sources of greenhouse gas (GHG) emissions, states have rushed in to try to fill the void. Minnesota sought to do so in 2007 when it passed the Next Generation Energy Act. That Act defines the emissions footprint of Minnesota’s retail electricity market—including both in-state generation and imports from other states—and establishes several prohibitions to prevent that footprint from growing.

In North Dakota v. Heydinger, several entities that generate electricity in coal-fired facilities within and outside of Minnesota, and the state of North Dakota which is home to several such entities, challenged the Minnesota Act. A federal district court ruled in 2014 that Minnesota’s Act was unconstitutional for impermissibly regulating out-of-state commercial transactions. The state appealed that decision, and, on June 15, 2016, a three-judge panel of the Federal Court of Appeals for the Eighth Circuit upheld the district court’s decision—but not its reasoning. The judges’ differing opinions are discussed in more detail below the jump.

Minnesota has not been alone in trying to reduce the emissions intensity of its particular corner of the decidedly inter-state electricity sector. Nor is it alone in getting sued over its attempt. Similar suits have been brought in more than a dozen other states, including Colorado and California. Those suits tend to base their challenges to state-level policies on either the U.S. Constitution’s (dormant) Commerce Clause or its Supremacy Clause. The first inhibits states from regulating interstate commerce (even where the federal government has not done so). The second is the basis for preemption of state law by a conflicting federal statute. Crucially, the latter is treated by courts as a statutory question rather than a constitutional one, meaning that a court hearing both sorts of argument should ground its decision in the latter if possible, in accordance with the canon against making avoidable constitutional interpretations. Both types of argument featured in the Eighth Circuit’s decision in North Dakota v. Heydinger.

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A Remarkable Papal Conference: A Personal Report

Posted on June 10th, 2016 by Justin Gundlach

by Michael Gerrard
Faculty Director

ITN_Vatican Summit photo (caption)In January my Columbia colleague Jeffrey Sachs told me that the Pontifical Academy of Social Sciences (with which he had worked for several years) was organizing a conference at the Vatican of judges, prosecutors and legal scholars from around the world to discuss how the law can address the scourge of human trafficking, and that Pope Francis would attend. He asked my help in identifying some individuals who should be invited, and I was happy to help.

I was not certain that I would be able to go until I received a letter in April from the Academy’s Chancellor, Monsignor Marcelo Sanchez Sorondo, which began, “Following Pope Francis’ wish, it is my pleasure to invite you” to this meeting on June 3-4. Though the dates conflicted with another commitment, this was an invitation I could not decline, so I found a substitute for that and booked a room in the Crowne Plaza St. Peter’s, as recommended by the Vatican. I also found a web site with the protocol for addressing certain personages, including the Pope, the Queen of England, and various heads of state. (The Pope should be addressed as Your Holiness. Catholics should kiss his ring if it is offered; non-Catholics like me should simply shake his hand.)

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Total SATim Wang, Sabin Center Intern

Total S.A., the fourth largest oil and gas producer worldwide, has published a comprehensive plan explaining how the company intends to alter its business practices and energy holdings in order to be consistent with the International Energy Agency’s 2°C Scenario in the next twenty years. “Integrating Climate into our Strategy” is the first strategic plan published by a large fossil fuel corporation that seeks to achieve a concrete climate change mitigation goal. Total will focus on portfolio overhaul, technological innovation, and policy advocacy, as its three-pronged approach to helping the world keep cumulative emissions under 1000 gigatons of carbon dioxide equivalent from 2013 to 2050.

One of the company’s top priorities is to exit the coal business. Total already ceased its coal production, in August 2015, after selling its affiliate Total Coal South America, and plans to withdraw from coal marketing by the end of 2016. At the same time, the company will turn its focus towards increasing the proportion of natural gas in the mix, which already accounts for roughly half of its reserves and production. Total also confirms in this report that it does not conduct oil exploration or production in the Arctic ice pack, and that it has recently decreased its exposure to Canadian oil sands, as well.

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The Columbia Environmental Law Clinic wins a critically important case involving the regulation of greenhouse gas emissions in Massachusetts.

Today, the Massachusetts Supreme Judicial Court released a unanimous decision ordering the state’s Department of Environmental Protection (DEP) to take additional measures to implement the 2008 Global Warming Solutions Act. Specifically, the Court held that DEP must impose volumetric limits on the aggregate greenhouse gas emissions from certain types of sources and that these limits must decline on an annual basis.  The Columbia Environmental Law Clinic was one of the groups representing the plaintiffs in this case.

The case involved a provision of the Global Warming Solutions Act requiring DEP to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” DEP claimed that it had complied with this provision through several regulatory initiatives, such as the Regional Greenhouse Gas Initiative cap and trade program. The court disagreed, finding that these initiatives did not satisfy the requirements of the Act because they did not entail the imposition of legally binding mass-based emission caps that declined on an annual basis. The court noted that two of the programs involved rate-based emission limitations, which were not sufficient for compliance because they did not ensure actual reductions in aggregate emissions.  Thus, the court held that DEP must promulgate new regulations to implement this provision of the Act.

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New York’s 2014 Community Risk and Resiliency Act (CRRA) instructs the Department of State and the Department of Environmental Conservation to create model local laws thatGundlach Warrent cover local governments can use in developing and implementing climate change adaptation policies related to sea level rise and flood risk. The Sabin Center’s new resource, Local Law Provisions for Climate Change Adaptation, complements the state agencies’ ongoing efforts by compiling existing provisions of state and local laws—and suggesting some new ones—that can help local governments looking to adapt effectively to these climate impacts. The provisions are broadly divided into the categories of Permitting Review, Targeted Development Restrictions and Prudent Development, and Shoreline Protection/Armoring. They codify a host of policies, ranging from giving due consideration to sea level rise to imposing setbacks on development approvals to creating transferable development rights schemes that support adaptive reconfigurations of existing and planned structures.

Publication of the state-authored model local laws document is expected later this year.

Justin Gundlach
Climate Law Fellow

In an opinion issued on May 11, 2016, a two-judge panel of India’s Supreme Court chastised that country’s federal and regional governments for their recent responses to severe India drought 1droughts, which the Court said contravene key provisions of the National Disaster Mitigation Act of 2005 (DM Act). The case was brought in challenge to refusals on the part of federal and regional government authorities to acknowledge or respond to severe drought conditions across large parts of country. The Court was careful to explain that its criticisms relate to unwillingness on the part of government authorities rather than ineffectiveness:

A candid admission does not imply a loss of face or invite imputations of ineffective governance – it is an acknowledgement of reality. An ostrich-like attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of society. The sound of silence coming from these States subjects the vulnerable to further distress. During the hearing of this public interest petition, no one alleged a lack of effective governance, only the lack of an effective response and therefore we are at a loss to understand the hesitation of these States.

The Court’s 53-page opinion made no mention of climate change, but did acknowledge what it called the “changing face of drought in India,” characterized by rainfall and drought conditions in unexpected places and at unexpected times of year. Given the growing susceptibility of India’s population to harms arising from drought, sea level rise, and air pollution, it is easy to see how subsequent petitions or statements in other contexts could analogize to the Court’s analysis with regard to climate change-related impacts.

The Court also issued several instructions, listed below the jump.

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In recent months, there has been a growing succession of actual and proposed investigations into fossil fuel companies, and their purported collaborators, over whether these groups lied to the public or investors about the risks of climate change.

The investigations come amid a series of reports that the fossil fuel industry – Exxon Mobil in particular – participated in a longstanding campaign of “disinformation, denial and delay” to sow doubt about climate change and undermine climate science findings. Most prominent among these accounts are from September and October 2015, in InsideClimate News and the Los Angeles Times, which detailed a $30 million, multi-decade effort led by Exxon Mobil to promulgate doubt about climate change, despite evidence that the company knew as early as 1977 that its product was contributing to climate change. Another report, released in April 2016 by the Center for International Environmental Law (CIEL), provides documents showing that Exxon and other fossil fuel companies participated in studies on fossil fuel burning and climate change starting in the 1950s. CIEL also claims that fossil fuel companies had longstanding initiatives “to use science and public skepticism to prevent environmental regulations they deemed hasty, costly and unnecessary.” Read more »

oil rigBy Jessica Wentz and Michael Burger

The Bureau of Ocean Energy Management (BOEM) has proposed a leasing program to continue oil and gas production on the Outer Continental Shelf (OCS) for the next five years. BOEM estimates that the program could result in the production of up to 13,139 million barrels of oil and 39,218 billion cubic feet of natural gas. Unlocking these new carbon reserves could undermine our ability to achieve key climate goals, including the internationally agreed upon target of  limiting global warming to “well-below” 2 °C and preferably 1.5°C. Unfortunately, the draft programmatic environmental impact statement (PEIS) for the lease sale plan fails to address this critical issue.

Earlier this week we submitted a comment letter urging BOEM to consider the following key issues in the final PEIS for the OCS leasing program:

  • Downstream GHG Emissions: The draft PEIS contains no discussion of emissions from the transportation or end-use of oil and gas produced under the proposed program. This is inconsistent with federal guidance and case law requiring agencies to consider such downstream emissions in environmental review documents for projects involving fossil fuel extraction. (See our working paper on this topic). We urge BOEM to include emissions from both transportation and end-use in its GHG inventory and to use this information to decide whether and how to proceed with the leasing program. Accounting for end-use emissions is particularly important given the scale of this action—using data from EPA, we estimate that the oil and gas produced under the program could generate up to 8.3 billion metric tons of CO2 when combusted. This is equivalent to the GHG emissions generated from 1.7 billion passenger vehicles in a year, or the electricity use in 1.2 billion homes in one year.
  • Social Cost of Carbon: BOEM conducted a cost-benefit analysis for the proposed program that is incorporated by reference into the draft PEIS. Without any explanation, BOEM excluded greenhouse gas emissions from its valuation of environmental costs. We urge BOEM to use the social cost of carbon and other available tools to assign a cost value to both direct and indirect greenhouse gas emissions from the proposed program so that these costs are fully accounted for in its decision-making process.
  • Consistency with Federal Policies and Commitments: Our final recommendation is that BOEM consider whether the proposed program, in light of all greenhouse gas emissions, is consistent with federal policies and commitments, including: (i) our Intended Nationally Determined Contribution (INDC) to the UNFCCC, under which we have pledged to reduce economy-wide greenhouse gas emissions by 26-28% below 2005 levels by 2025; (ii) the attainment of the 2 °C / 1.5 °C global warming target (taking into account the fossil fuels that must be left in the ground to meet that target); and (iii) the Clean Power Plan, which will drive a shift towards cleaner fuel sources in the electricity sector.

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by David Markell
David Sive Visiting Scholar, fall 2016

The legal environment for local government indmarkell Florida is beginning to change when it comes to sea-level rise (sometimes referred to as SLR). Innovations in institutional structure and governance strategies are underway in the State as well. This paper, Sea-Level Rise and Changing Times for Florida Local Governments, reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others. It begins with the State’s decision, in 2011 legislation, to give local governments a new, optional tool – referred to as “Adaptation Action Areas” (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The paper then turns to a second piece of Florida legislation, this one enacted in 2015, which also identifies sea-level rise as a concern but this time mandates that local governments begin to address it and other causes of flood-related risks through their comprehensive planning process. Finally, the paper discusses a third initiative, launched in 2009 by four Southeast Florida counties – Miami-Dade, Broward, Palm Beach, and Monroe – to foster local government and regional coordination on sea-level rise and other climate change issues. This review of these three developments provides a relatively in-depth starting point for understanding key features of the emerging legal and institutional landscape in Florida for addressing sea-level rise, especially with respect to comprehensive planning. It thereby contributes to filling an enormous knowledge deficit concerning adaptation initiatives.

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