The federal Freedom of Information Act (“FOIA”) and state open record law equivalents are designed to promote government transparency by allowing citizens to request copies of administrative records. Increasingly, they are also used to obtain otherwise private documents from government or public university scientists. FOIA laws can expose misconduct,[1] but invasive FOIA requests can also have deleterious effects on academic research,[2] including being used as a tool for harassment by groups seeking to distract, discredit, and even intimidate.[3] Scientists operating in politically controversial areas, such as climate science, have been especially vulnerable to invasive requests – see here and here for examples where massive open record requests for climate scientists’ personal files were ultimately shot down by courts.

A recently published decision out of West Virginia illustrates this tension in the environmental health context. In its May 2015 opinion in Highland Mining Company v. West Virginia University School of Medicine, the West Virginia Supreme Court confirmed that a “research scientist at a public college or university is subject to FOIA because he or she is employed by a public body.” The Court also stated that West Virginia’s FOIA statute provided no protections for “academic freedom” or for confidential peer review correspondence. The Court did rule, however, that researcher files could be protected from disclosure under a different, existing protection for “internal memoranda.”[4]

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17th Street Canal levee breachAs governments turn a blind eye to the accumulating risks of climate change, do they expose themselves to potential legal liability? A new working paper by former Sabin Center fellow Jennifer Klein explores three possible legal claims against state and local governments for their failure to prepare for climate change.

The paper addresses potential claims sounding in negligence, fraud, and takings, describing the benefits and challenges of each theory. The paper explores ways to overcome a government’s claim of sovereign immunity in the context of a negligence claim, noting in particular the common government waiver of immunity for claims arising out of dangerous conditions of government owned property. The paper describes the challenges of bringing a claim for fraud where officials intentionally obscure relevant information about climate change risks, including the sovereign immunity defense as well as difficulties proving causation and intent in this context. Finally, the paper explores claims for just compensation where a government causes property to be damaged or destroyed through its failure to prevent the impacts of climate change, and concludes that this type of suit is the most promising of the three.

If claims under any of these theories are successful, such litigation could be used to promote climate change adaptation by encouraging governments to weigh the costs and benefits of both action and inaction in the face of the increasing risk of natural disasters.

our childrens trustBy Nikita Perumal and Jessica Wentz

A foundational component of sustainable development is the principle of inter-generational equity: that we should meet the needs of the present without compromising the ability of future generations to meet their own needs.

On August 12, a group of twenty-one youths invoked this principle in a lawsuit filed against the federal government in the U.S. District Court in Oregon. The complaint alleged that the federal government has violated “the fundamental right of citizens to be free from government actions that harm life, liberty, and property” by “approving and promoting fossil fuel development, including exploration, extraction, production, transportation, importation, exportation, and combustion.”[1]

The non-profit Our Children’s Trust, which helped file the complaint for declaratory and injunctive relief, explains on its website that “[p]laintiffs seek to hold President Obama and various federal agencies responsible for continued fossil fuel exploitation. The Federal Government has known for decades that fossil fuels are destroying the climate system.” Thus, according to Julia Olson, lead counsel on the case and public interest attorney for Our Children’s Trust, “this lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations?”

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african-elephant-maleBy Anna LoPresti, Summer Intern

On July 29th, the Fish and Wildlife Service (FWS) proposed an amendment to the African Elephant Rule under section 4(d) of the Endangered Species Act, which would enforce stricter regulations on the United States ivory trade. If finalized, the rule would prohibit sale or offer for sale of ivory and sport-hunted trophies in interstate or foreign commerce. Exceptions would only be granted for antiques and musical instruments with less than 200 grams of ivory. The amendment is a long time coming, written in response to President Obama’s 2013 Executive Order 13648 on Combating Wildlife Trafficking and the resulting 2014 National Strategy for Combating Wildlife Trafficking.

Conservationists worldwide have lauded the rule as an important step toward preserving the African elephant, especially coming from the United States—the world’s second largest market for illegal ivory. However, the amendment would have much wider environmental implications than preservation of a single species. Crippling the illegal ivory trade has the potential to address the causes and effects of global climate change in two ways: by promoting ecosystem resiliency in Sub-Saharan Africa, and by weakening the channels through which transnational crime syndicates commit other forms of environmental crime—many of which directly contribute to global climate change and land degradation.

Elephants are a common example of a flagship species, used as a symbol to represent conservation and chosen based on familiarity to the public. However, elephants are also a keystone species, defined by the World Wildlife Foundation as “a species that plays an essential role in the structure, functioning or productivity of a habitat or ecosystem.” Multiple studies conducted over the past 10 years highlight the fact that removing elephants from the African savanna causes a chain reaction of negative effects, including preventing trees from reaching maturity and seeding, a factor which contributes to land degradation and desertification. Elephants, therefore, physically shape much of the African landscape and contribute to the maintenance of a healthy, well-functioning ecosystem. As noted by the United Nations Environment Programme (UNEP), “well-functioning ecosystems enhance natural resilience to the adverse impacts of climate change and reduce the vulnerability of people.”

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Today, the Sabin Center for Climate Change Law is releasing a set of model protocols for assessing the impacts of climate change on the built environment under the National Environmental Policy Act (NEPA) and state equivalents.

The protocols are intended for use in environmental reviews of proposed buildings and infrastructure (we plan to initiate a similar project for natural resource and land management projects in the near future). They outline a process for evaluating how climate change may affect a project and its surrounding environment, determining whether there are implications for the environmental consequences or performance of the project, and implementing appropriate adaptation and resilience measures.

The protocols are accompanied by a background paper, written by Associate Director Jessica Wentz, which describes: (i) the rationale for integrating climate impact considerations into environmental impact assessment (EIA) processes, (ii) the legal basis for requiring agencies to evaluate climate impacts during reviews conducted under NEPA and other EIA laws, (iii) a survey of existing guidelines for such evaluations, (iv) a survey of how climate change impacts are evaluated in recent federal EISs, and (v) a summary of outcomes from a stakeholder workshop convened to discuss the development of these protocols (read more about the workshop here).

Last year, the U.S. Council on Environmental Quality (CEQ) issued draft guidance on the consideration of climate change in environmental reviews conducted under NEPA. The draft guidance directs federal agencies to evaluate, among other things, whether the effects of climate change may alter the environmental consequences of a proposed action—for example, by increasing the vulnerability of an ecosystem or natural resource to the adverse impacts of the action. CEQ notes that such considerations fall “squarely within the realm of NEPA, informing decisions on whether to proceed with and how to design the proposed action to minimize impacts on the environment.”[1]

A variety of other jurisdictions, including Massachusetts, New York, and Washington, have issued similar policies for environmental reviews under state laws.


[1] CEQ, Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews, 79 Fed. Reg. 77,802, 77,828 (Dec. 24, 2014).

Tracking Climate Change Regulation


Posted on August 13th, 2015 by Jennifer Klein

The Sabin Center for Climate Change Law has updated the Climate Regulation Tracker on our website. The Climate Regulation Tracker is a uniquely comprehensive resource, compiling in one place and providing links to the federal government’s climate change-related rules and regulations. Over the course of the summer, Columbia University undergrad and Sabin Center intern Anna LoPresti dug through the Federal Register and agency websites to expand the tracker’s scope and add regulations promulgated by previously uncovered natural resources agencies, including the Bureau of Land Management, the Forrest Service, and the National Oceanic and Atmospheric Administration. Anna also updated existing profiles for the Environmental Protection Agency, the Council on Environmental Quality, and the President’s Executive Orders. Regulations catalogued in the tracker determine the details of United States policy on carbon emissions, renewable energy use, habitat protection, and much more.

The tracker includes the EPA’s recently proposed Clean Power Plan, which sets standards for power plants and customized goals for states to cut carbon pollution. The Sabin Center has been closely following the Clean Power Plan. Most recently, Sabin Center fellow Jessica Wentz wrote about the role demand-side energy efficiency will play in implementation of the EPA regulation. The Sabin Center will continue to update the regulation tracker as federal agencies promulgate new rules impacting the country’s response to climate change.  Any suggestions or comments on the legislation tracker should be sent to ColumbiaClimate@gmail.com.

by Michael Burger

IMG_0367Last week I traveled to Vientiane, Laos, to give a presentation at the National Workshop on Disaster and Climate Change Law. The workshop, convened by the United Nations Development Program (UNDP), the International Federation of Red Cross & Red Crescent Societies (IFRC) Disaster Law Program, and the government of Laos, is one step in a multi-year legislative process that will design (and hopefully implement) an integrated approach to disaster risk management (DRM) and climate change adaptation (CCA). Though DRM and CCA have typically been addressed separately—by different agencies or ministries operating under different statutory or decreed mandates in nations around the world—policymakers are beginning to recognize the benefits of looking at them together. This post takes a minute to talk about why, and to think out loud about what principles might guide integration efforts moving forward.

International climate change and disaster law both give currency to the notion of integration. The UNFCCC’s Bali Action Plan and Cancun Agreements explicitly place disaster risk reduction (which along with disaster response and disaster recovery constitute “disaster risk management”) in the context of the international commitment to enhanced action on adaptation. At the same time, the two international DRM soft law instruments—the Hyogo Framework for Action (in effect from 2005-2015) and the follow-up Sendai Framework for Disaster Risk Reduction (for the years 2015-2030)—identify climate change as an underlying disaster risk to be addressed in DRM. The Sendai Agreement states that adequate disaster preparation requires looking at future climate scenarios at the global, regional, national, and local levels.

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Hillary Clinton’s Climate Change Plan


Posted on August 6th, 2015 by Jessica Wentz

H ClintonGrant Glovin, Sabin Center Summer Intern

Hillary Clinton’s climate change plan, released last week, centers on two goals: installing 500 million solar panels by 2021, and, relatedly, adding enough electric generation capacity from renewable sources to supply all residential electricity needs. The plan appears ambitious: the solar power expansion alone would represent a sevenfold increase in the country’s current solar generating capacity.

The steps that Clinton proposes to achieve these goals have yet to be fully detailed, and the campaign has promised that Clinton will put forward “a comprehensive energy and climate agenda…over the coming months.” Her current proposals include the implementation (and defense from legal challenge) of the Obama administration’s Clean Power Plan, which mandates emissions reductions from existing power plants that will be achieved, at least in part, through the installation of new renewable energy facilities. The second component of Clinton’s plan is a “Clean Energy Challenge.” This encompasses multiple strategies, including market-based incentives and grants for states with stricter greenhouse gas (GHG) emission standards, further incentives for states localities to streamline approval processes for solar energy-generating facilities, the expansion of clean energy programs in the Department of Agriculture’s Rural Utilities Service, federal tax incentives for renewable energy projects, expanded development of renewable energy projects on federal land and buildings, and increased investment in clean energy technology research.

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The Pope’s Environmental Economics


Posted on August 6th, 2015 by Jennifer Klein

By Michael Greenberg, Sabin Center Summer Intern

Pope_Francis_Korea_Haemi_Castle_19_(cropped)Pope Francis’ June 18 encyclical Laudato Si’, On Care for Our Common Home includes a section about the economics of carbon mitigation. Although a small part of the encyclical—one paragraph out of 246—the pope’s economic prescription received extensive coverage from top newspapers such as the Washington Post and New York Times. Many of the academics and pundits writing about this part of the encyclical (paragraph 171) concluded that Francis opposes using cap-and-trade schemes as a means for addressing climate change. This blog post will question whether this section of Francis’ encyclical has been interpreted in the correct manner.

In Paragraph 171 Francis writes: “The strategy of buying and selling ‘carbon credits’ can lead to a new form of speculation which would not help reduce the emission of polluting gases worldwide. This system seems to provide a quick and easy solution under the guise of a certain commitment to the environment, but in no way does it allow for the radical change which present circumstances require. Rather, it may simply become a ploy which permits maintaining the excessive consumption of some countries and sectors.”

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AUGUST 2015 UPDATE TO CLIMATE LITIGATION CHARTS


Posted on August 5th, 2015 by Jennifer Klein

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 at gmail dot com.

Here are the latest additions to the Climate Case Chart

Update #77 (August 3, 2015)

FEATURED DECISION

Tenth Circuit Affirmed Colorado’s Renewable Energy Mandate
The Tenth Circuit Court of Appeals ruled that Colorado’s renewable energy mandate did not violate the dormant Commerce Clause. The decision affirmed a ruling of the federal district court for the District of Colorado in a lawsuit brought by the Energy and Environment Legal Institute (EELI), whose members include a fossil fuel producer. EELI appealed only one aspect of the district court’s decision—that the mandate did not impermissibly control extraterritorial conduct. The Tenth Circuit said that although fossil fuel producers will be hurt by the mandate, EELI “offers no story suggesting how Colorado’s mandate disproportionately harms out-of-state businesses,” and “it’s far from clear how the mandate might hurt out-of-state consumers either.” The Tenth Circuit concluded that this case did not fall within the narrow scope of the Supreme Court’s extraterritoriality precedent, which was applied only to price control or price affirmation regulation. The Tenth Circuit said that EELI’s reading risked “serious problems of overinclusion.” Energy & Environment Legal Institute v. Epel, No. 14-1216 (10th Cir. July 13, 2015): added to the “Challenges to State Action” slide.

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