Progress Towards an HFC Amendment to the Montreal Protocol

Posted on August 15th, 2016 by Jessica Wentz

by Michael Choi, Summer Intern

Last month, the United States delegation led international efforts to initiate a Hydrofluorocarbon (HFC) amendment to the Montreal Protocol at meetings which took place from July 15th-23rd. The Montreal Protocol, which was adopted on September 16, 1987, is an international agreement to phase out the production and consumption of ozone depleting substances in order to reduce their abundance in the atmosphere and protect the stratospheric ozone. As noted by U.S EPA Administrator Gina McCarthy, the Montreal Protocol is regarded “as the most successful environmental treaty” since it has led to the 97% reduction in the production and import of ozone depleting substances throughout the world.

HFCs are fluorinated greenhouse gases that are used commonly in refrigeration, air conditioning, aerosols, fire protection systems and solvents.  They have become increasingly prevalent because they serve as a substitute for the ozone-depleting substances that are being phased out under the Montreal Protocol, such as chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs). Although HFCs have not been proven to directly harm the ozone layer, they are extremely potent greenhouse gases.

The Montreal Protocol can be amended to ban substitutes for ozone depleting substances that harm the environment, even if the substances may not negatively impact the ozone layer.  On November 6, 2015, the 197 parties that signed the Montreal Protocol pledged to monitor and limit the usage of HFCs and to pass an amendment by the end of 2016 regarding the phase out of HFCs. The parties did not reach a final agreement on the text of the amendment at last month’s meetings, but they hope to do so by October. According to EIA international, over 100 parties, including the US and EU, have now expressed support for an ambitious agreement with a HFC consumption freeze beginning in 2021.

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by Justin Gundlach
Climate Law Fellow

New York City’s Economic Development Corporation (EDC) is planning to implement a Citywide Ferry Service by adding five new routes to those already run by the East River Ferry. EDC anticipates several benefits from the Citywide Ferry Service: it will link neighborhoods that currently have few transit options, ease transit congestion elsewhere, and provide an affordable way for commuters and tourists to access waterfront parks and developments. As required by the City Environmental Quality Review (CEQR) process, EDC drafted an Environmental Impact Statement (EIS) to identify both the effects of the ferries on the environment and the effects of the changing climate on the ferries and their landings. That EIS, for reasons described below, is a solid example of the sort of analysis that the White House Council on Environmental Quality (CEQ) envisioned when it issued its Final Guidance to Federal Agencies on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.

To access the EIS, go to this website and enter 15DME009Y (the Citywide Ferry Service’s serial number) into the “CEQR Number” field.

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White House Announces Clean Energy Access Initiative

Posted on August 5th, 2016 by Jessica Wentz

by Michael Choi, Summer Intern

On July 19th, the Obama Administration announced the commencement of the Clean Energy Savings for All Initiative to “increase access to solar energy and promote energy efficiency across the United States.” The initiative, which creates a partnership between the Departments of Energy (DOE), Housing and Urban Development (HUD), Agriculture (USDA), Health and Human Services (HHS), Veteran’s Affairs (VA), and the Environmental Protection Agency (EPA), aims to bring 1 gigawatt (GW) of solar to low- and moderate- income families by 2020. There are several notable components of the initiative that are intended to promote access to clean energy and energy efficiency while offsetting the costs of the sustainable energy transition:

  • The Community Solar Challenge, which will award teams of communities up to $100,000 in cash and technical assistance to develop innovative models to increase solar deployment and reduce community energy bills, with a focus on low income areas.
  • The Solar Training Network, which will help Americans find clean energy jobs by connecting solar workforce trainers, solar employers and individuals interested in working in the solar industry.
  • The Low Income Home Energy Assistance Program (LIHEAP), which provides grants to low-income residents for weatherization and energy efficiency programs.

The fact sheet for the program is available here.

by Michael Burger & Jessica Wentz

On Tuesday August 2 the Council on Environmental Quality (CEQ) released its much-anticipated Final Guidance to Federal Agencies on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews. The final guidance is largely the same as the revised draft guidance issued in 2014: It directs federal agencies to account for the effects of a proposal on climate change, using greenhouse gas (GHG) emissions as a proxy for those effects, as well as the effects of climate change on the proposed action and its environmental impacts.  There are, however, two notable changes: First, the final guidance no longer specifies a threshold for quantifying GHG emissions. Instead, it directs agencies to quantify emissions whenever the tools and data are available to do so. Second, the language calling for consideration of “upstream” and “downstream” emissions has been removed, and replaced with reference to the more technically precise term, “indirect effects.” Importantly, the guidance states that the reasonably foreseeable indirect effects that should be accounted for in NEPA documents would include what are, in essence, downstream emissions – for example, emissions from the end-use of coal that is mined as a result of a federal action. More on this below.

One important aspect of this final guidance is that it will provide certainty to federal agencies about how to address considerations related to climate change in their NEPA reviews. This will likely prompt many agencies to adopt more detailed, agency-specific guidance that is tailored to the types of actions that they frequently review. For example, several agencies have been waiting for the final CEQ guidance in order to adopt internal guidance on accounting for the effects of climate change on land and resource management actions.

The final CEQ guidance comes after a lengthy process of public engagement and interagency consultation. In 2008 several environmental groups formally petitioned CEQ to issue such guidance. (One of them, the Natural Resources Defense Council, was represented by Michael Gerrard, the Sabin Center’s Faculty Director.) CEQ issued two iterations of the guidance – an initial draft in 2010 and a revised draft in 2014 – and the guidance has evolved considerably with each new version. For example, the initial draft did not address whether agencies should account for the effects of federal land and resource management decisions on carbon sequestration, whereas the 2014 draft and the final version direct agencies to consider such effects and cite tools that can be used to perform this analysis.

The 2014 draft and final version also contain significantly more information about how to account for the effects of climate change on a proposed action and its environmental impacts, as compared with the 2010 draft. The final guidance states that “a NEPA review should consider an action in the context of the future state of the environment,” taking into account the effects of climate change, in order to accurately characterize the environmental consequences of the action. It also recognizes that climate change adaptation and resilience are important considerations for many federal actions. The guidance is therefore consistent with our previous analysis of this topic and model protocols we have developed for addressing the effects of climate change on projects undergoing environmental review.

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A July 2016 federal court decision has upheld Wyoming laws that impose criminal and civil penalties for collection of “resource data”[1] when the collection involves trespassing on private lands, even when the trespass is unintentional, and even when the trespass is incidental to the collection.

The Wyoming legislature enacted these laws in 2015, outlawing the collection of “resource data” on any “open land” when the data was submitted or intended to be submitted to the government.  The statutes defined “open land” as “land outside the exterior boundaries of any incorporated city, town, subdivision . . . or development.”  There was confusion as to whether this meant private land only, or whether state or even federal land also qualified.

In 2015, the Western Watersheds Project, a conservation non-profit that monitors water quality in Wyoming and other states, filed a suit challenging the new laws, accompanied by other groups including the National Press Photographers Association and the Natural Resources Defense Council.  The Plaintiffs claimed that these data trespass laws amounted to unconstitutional censorship, violating the First Amendment’s Free Speech clause and the Fourteenth Amendment’s Equal Protection clause, and they argued that Wyoming’s data trespass laws were preempted by various federal environmental statutes. Read more »

lng-terminal-shipBy Michael Burger and Jessica Wentz

Last month, the D.C. Circuit Court of Appeals issued two decisions upholding the Federal Energy Regulatory Commission (FERC)’s environmental impact analysis for liquefied natural gas (LNG) terminals in Louisiana (No. 14-1249) and Texas (No. 14-1275). In both cases, the court rejected claims that FERC should have considered upstream and downstream greenhouse gas emissions as part of their NEPA review. In particular, the court opined that FERC does not have to analyze the extent to which natural gas exports would induce additional natural gas production and the effects of induced production on greenhouse gas emissions as indirect effects of the LNG terminal approvals.

In a thoughtful assessment of the decisions, one group of commentators has suggested that these decisions may make it more difficult for the Council on Environmental Quality (CEQ) and other courts to demand that federal agencies consider upstream and downstream impacts in environmental reviews for fossil fuel-related approvals. But we think this overstates the reach of the D.C. Circuit decisions, both of which were based on the unique set of circumstances surrounding the approval of LNG exports, and that a full accounting of the climate impacts of these and other export projects should still be forthcoming.

Decisions regarding the export of natural gas from the United States are split between two agencies: FERC and the Department of Energy (DOE). While FERC has jurisdiction over the siting, construction, and operation of LNG export terminals, it is DOE that has the sole authority to license the export of any natural gas from those terminals, based on its determination of whether such exports would serve the public interest. Consistent with this division of responsibilities, the court held that FERC’s NEPA analysis did not have to address the indirect effects of the anticipated export of natural gas. The court explained:

The Department’s independent decision to allow exports—a decision over which the Commission has no regulatory authority—breaks the NEPA causal chain and absolves the Commission of responsibility to include in its NEPA analysis considerations that it “could not act on” and for which it cannot be “the legally relevant cause.” (No. 14-1275, p. 18.)

The court cited Public Citizen v. Dept. of Transportation, 541 U.S. 752 (2004) as the primary basis for its decision. There, the Supreme Court held that an agency need not consider environmental effects in its NEPA review when it has “no ability” to adopt a course of action that could prevent or otherwise influence those effects. 541 U.S. at 766.

Importantly, the DC Circuit made clear that it was expressing no opinion on whether FERC’s environmental analysis would have been adequate to satisfy DOE’s independent NEPA obligation in authorizing the export of natural gas, even suggesting that DOE would be the appropriate agency to conduct an upstream/downstream analysis of LNG exports, if such an analysis is required. The DOE’s compliance with NEPA in the context of LNG facilities is the subject of two other lawsuits, one challenging DOE’s order authorizing the LNG exports at issue in these cases (Sierra Club v. DOE, No. 15-1489), and another challenging the DOE export approval for another such facility in Maryland (Sierra Club v. DOE, No. 16-1186).

In short, the D.C. Circuit will not be settling questions regarding the scope of the indirect impact analysis for LNG exports until it issues its opinions in the cases involving DOE’s export authorizations (which will probably be decided this fall or in early 2017).

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Community Resilience Indicators: Developing New Standards

Posted on July 21st, 2016 by Justin Gundlach

by Kai Salem
Sabin Center Summer Intern

Concept Paper coverLast month, the Mitigation Framework Leadership Group (MitFLG), whose members represent federal agencies and state and tribal authorities, published an important study: the Draft Interagency Concept for Community Resilience Indicators and National-Level Measures. This report grows out of the Federal Emergency Management Agency’s (FEMA’s) 2011 National Preparedness Goal, which identified community resilience as a key aspect—a “core capability”—of the mitigation of future disasters. Although federal programs have prioritized local resilience to disasters for five years, no federal agency has yet devised metrics to evaluate resilience. This new report, a response to a 2012 recommendation of the National Research Council, is an important step towards identifying indicators by which to measure community resilience. The report and community resilience are discussed further below the jump.

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Justin Gundlach
Climate Law Fellow

The International Energy Agency, a respected source of data and insights into energy markets and technologies, has published a report – Energy and Air Pollution – on how the energy sector affects air quality and public health. As the report explains, “[o]ur energy system contributes vitally to economic and social progress around the world. But there are costly side-effects.” The report marks an important development for the IEA: this is the first time the IEA has conducted a major study on the role energy plays in air pollution. The report is the latest example of a growing recognition that sound energy policy cannot not be indifferent to public health, and that an integration of energy and environmental policy goals can lead to more socially cost-effective economic development.

The three charts below the jump illustrate how the report integrates data and policy information for international comparison.

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Climate Change Litigation Chart Updates – July 2016

Posted on July 11th, 2016 by Jessica Wentz

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 additions to the litigation charts (Update #88).


Eighth Circuit Panel Agreed That Minnesota Low-Carbon Power Law Was Unlawful But Disagreed as to Why

The Eighth Circuit Court of Appeals affirmed a district court’s conclusion that Minnesota’s Next Generation Energy Act (NGEA) was unlawful. The NGEA barred importing energy from a “new large energy facility” outside Minnesota or entering into new long-term power purchase agreements, where such activities would contribute to statewide carbon dioxide emissions. Only one judge on the Eighth Circuit panel agreed with the district court conclusion that the statute constituted impermissible extraterritorial regulation under the dormant Commerce Clause. The other two judges concluded that the law was preempted by the Federal Power Act, with one of the two judges also concluding that the law conflicted with the Clean Air Act. A blog post about this decision appears here. North Dakota v. Heydinger, Nos. 14-2156, 14-2251 (8th Cir. June 15, 2016): added to the “Challenges to State Action” slide.
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Justin Gundlach
Climate Law Fellow

Biniaz paper cover pageSusan Biniaz, Columbia Law School class of 1983, has been the lead climate change lawyer for the U.S. Department of State since 1989. She recently spoke at the law school about her experience negotiating climate agreements. In the fall of 2016 she will be teaching international environmental law as a newly-appointed member of the law school’s adjunct faculty.

Her new working paper, Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime, resists simple categorization. It is part play-by-play retelling of decades of climate negotiations, part recipe for successful reconciliation among disagreeing parties, part decoder for anyone seeking to comprehend the layered meanings of key words and phrases in the texts of the United Nations Framework Convention on Climate Change or other key documents, including the Paris Agreement. It is also an entertaining set of examples for legal grammarians who are (rightly) certain that small choices of phrasing, punctuation, or syntax can make big substantive differences.

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