By Michael Burger

Yesterday a group of 22 Republican senators led by James Inhofe and Mitch McConnell delivered a letter to President Trump declaring their view that the Paris Agreement stands as an impediment to his promise to undo the Clean Power Plan. Previous legal arguments along these lines have been refuted, and have apparently failed to persuade the administration to withdraw from the Paris Agreement. Now, these senators are taking a different tack, arguing that the Paris Agreement is a problem because of the existence of Section 115 of the Clean Air Act, the “International Air Pollution” provision. Their argument relies in part on a paper, for which I served as coordinating lead author, that laid out the case for using Section 115 to address climate change in the wake of the Paris Agreement. The senators fundamentally misconstrue the paper, and they are wrong on the law in two crucial ways, fatal to their cause.

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By Mike Burger & Justin Gundlach

Today, the Sabin Center and UN Environment have officially launched The Status of Climate Change Litigation – A Global Review. The report offers a (relatively) concise survey of decided and ongoing cases, an overview of salient trends, and descriptions of key issues that courts must resolve in the course of deciding different sorts of climate change cases. In addition to acting as a primer for those encountering climate change litigation for the first time, the report is also meant to provide researchers and practitioners with a basic conceptual framework and common source of terminology.

The report’s timing is no coincidence. As various articles and analyses have observed, climate change litigation is becoming an increasingly prominent and significant feature of the climate law and policy landscape. This seems to be the natural consequence of a decade’s worth of increasingly concrete and meaningful legislation and regulation aimed at climate change—lawmaking that recognizes new rights, creates new duties, and is subject to challenge by parties seeking greater ambition from policymakers or adversely affected by new obligations and restrictions. As we explain below the jump, the growing prominence of climate change litigation also seems to owe to other factors as well, such as the Paris Agreement’s role in national-level climate change policymaking debates in countries other than the United States.

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New York’s Methane Reduction Plan: A Model for Other States


Posted on May 22nd, 2017 by Romany Webb

By Romany Webb

On Wednesday May 17, New York Governor Andrew Cuomo unveiled a new Methane Reduction Plan, designed to advance the state’s goal of reducing greenhouse gas emissions by 40 percent below 1990 levels by 2030. To date, state efforts have primarily focused on lowering emissions of carbon dioxide, which is the most prevalent greenhouse gas. The state has, however, recognized the need to also address methane emissions. Although methane is emitted in smaller quantities than carbon dioxide, it is much more potent, trapping up to 84 times more heat in the earth’s atmosphere in the first 20 years after it is released (on a per ton basis). Thus, according to the Governor’s office, “methane reduction is a key piece of New York’s policies to address the risks from climate change.”

The Methane Reduction Plan targets the three major sources of methane emissions: (1) the oil and gas sector, (2) agricultural producers, and (3) landfills. It identifies 25 actions to be taken across the three areas by the New York Department of Environmental Conservation (“DEC”), Department of Public Service (“DPS”), Energy Research and Development Authority, and Department of Agriculture. Interestingly, of those 25 actions, almost half are aimed at controlling emissions from the oil and gas sector. Those controls go significantly further than existing regulations at the federal level and may provide a model for other states looking to more tightly regulate oil and gas operations.

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By Romany Webb

    Abandoned gas well in Texas

Residents of Corpus Christi, a coastal town in southern Texas, are reeling this week after learning that methane has been leaking into their water supplies for at least five years. The source of the leak is two natural gas wells that were abandoned in the 1980s. Despite the fact that the leaking wells underlie the Choke Canyon Reservoir, one of Corpus Christi’s main water sources, officials say there’s no reason for concern as the methane is dispersing naturally and does not pose a fire or explosion risk. That is, however, small comfort for those concerned about climate change.

Methane is a highly potent greenhouse gas with a global warming potential 84 times that of carbon dioxide over a 20 year time horizon. It is the primary component of natural gas, the production of which has long been known to contribute to overall greenhouse gas emissions, as methane leaks from wells during drilling and completion. The reports from Corpus Christi suggest those leaks may continue long after the wells are abandoned. This is more likely to occur when a well has not been closed or “plugged,” which involves pumping cement or another substance into the wellbore to seal it at the top. The Texas Railroad Commission (“RRC”) estimates that there are currently over 1,300 unplugged wells across the state. The number is even higher here in New York, with the Department of Environmental Conservation (“DEC”) identifying 3,500 unplugged wells. In neighboring Pennsylvania, 8,200 unplugged wells have been identified. The entity responsible for those wells is often unknown, so plugging falls to state regulatory agencies. Unfortunately, their efforts are often hampered by a lack of financial resources.

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Sabin Center Releases its Winter/Spring 2017 Semi-Annual Report


Posted on May 16th, 2017 by Tiffany Challe

Today, the Sabin Center for Climate Change Law posted its Winter/Spring 2017 Semi-Annual Report, which includes a summary of the Center’s key activities between January and May 2017. It is available for download here.

Below are some highlights of the report:

 

To learn more about our nine project areas (The Clean Air Act, Environmental Assessment, Energy Law, Adaptation, Securities and Climate Finance, Natural Resources, Human Rights, International and Foreign Law, and Threatened Island Nations), Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were featured, read the report here.

The Harvard Environmental Law Review has published an article by Michael Burger and Jessica Wentz, “Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review.”

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project and the agency’s ability to justify approving the project in light of that balance.  This article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents.

Importantly, the requirement to evaluate upstream and downstream emissions is grounded in the NEPA statute, regulations, and implementing case law. It cannot be undone through an executive order. This is important in light of the numerous actions undertaken by the Trump administration to promote fossil fuel development and to reduce any perceived obstacles to that development, such as environmental review requirements. These actions include:

Additional information about climate change and NEPA reviews is available here.

The paper is available for download here.

 

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This week, I travelled to Albany for the annual Spring Conference of the Independent Power Producers of New York (“IPPNY”), a trade association that represents generators and others in the electric industry. Executives from numerous electric companies were also there, along with state and federal policy-makers, as well as members of the finance and legal communities. Discussions focused on the theme “Responding to Emerging Energy Policy,” with panels covering the impact of recent policy developments on the electric sector and a keynote address by Cheryl LaFleur, Acting Chair of the Federal Energy Regulatory Commission (“FERC”).

I presented our work on carbon pricing in wholesale electricity markets administered by the New York Independent System Operator (“NYISO”). There was considerable interest in the topic given the recent announcement by NYISO that it is studying ways to incorporate the cost of carbon into wholesale electricity prices. This is seen as important to integrate state policy, aimed at decarbonizing electric generation, into wholesale markets. To date, the state has sought to support low-carbon generation through out-of-market payments, e.g. to nuclear facilities. As the number and amount of such payments have grown, so too have concerns about their potential to distort the market, including by causing uneconomic facilities to remain in operation instead of retiring.

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The U.S. Environmental Protection Agency (EPA) has requested public input on regulations that may be appropriate for repeal, replacement, or modification pursuant to President Trump’s deregulatory agenda (as outlined in Executive Orders 13771 and 13777). The Sabin Center has submitted a comment letter urging EPA to preserve existing greenhouse gas emission standards.

In the letter, we explain the necessity of these standards and the fact that they provide important benefits that significantly outweigh their costs. This finding is supported by EPA’s own assessments of rules such as the Clean Power Plan, the New Source Performance Standards for power plants, and the emission standards for motor vehicles – EPA conducted a cost-benefit analysis for each of these rules in which it concluded that the overall economic and public health benefits accruing from the reduction in greenhouse gas emissions and co-pollutants would far outweigh any adverse economic impacts. For example, EPA determined that the implementation of the Clean Power Plan would generate climate and public health benefits worth an estimated $34 to $54 billion annually in 2030, as compared with compliance costs ranging from $5.1 to $8.4 billion. There are also a variety of independent studies which have also found that policies like the Clean Power Plan would deliver substantial net benefits, in some cases exceeding what EPA has predicted, and minimal costs.

We also explain why the EPA lacks authority to solely account for compliance costs when deciding whether to issue, modify, or repeal regulations issued under the Clean Air Act. Specifically, we note that there is no provision in the Clean Air Act that authorizes EPA to ignore public health benefits when making such decisions – to the contrary, the Clean Air Act compels consideration of such benefits, and in some cases, forbids consideration of costs.

EPA is accepting public input on this matter through May 15, 2017. Click here to learn more about the review process and to submit comments.

A copy of the comment letter is available here.

Information about Trump’s deregulatory agenda and its effect on EPA regulations is available here and here.

By Romany Webb

The Environmental Protection Agency (“EPA”) made headlines last weekend when the agency fired at least five academics from its Science Advisory Board (“SAB”). A spokesman for Administrator Scott Pruitt told the media that he is considering replacing the fired academics with industry representatives as he “believes we should have people on the board who understand the impact of regulations on the regulated community.” These events have prompted questions about the law governing membership of the SAB.

As its name suggests, the SAB is an advisory committee, established to provide EPA with input on scientific matters. It was first established in 1978 by then EPA Administrator, Douglas M. Costle, pursuant to the Environmental Research, Development, and Demonstration Authorization Act (“ERDDA Act”). This blog post offers a short primer on the ERDDA, and on the composition of the SAB, the qualifications of its members, and rules on impartiality and conflicts of interest.

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Today, the Sabin Center for Change Law at Columbia Law School and the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science are launching a joint online database of global climate change legislation. 

According to Professor Michael Gerrard, Faculty Director of the Sabin Center for Climate Change Law, “This new resource brings together important databases related to climate change legislation and will help lawyers, judges and advocates around the world navigate the complex emerging legal regimes that govern this vitally important issue, and envision new ones.”

Martin Chungong, Secretary General of the Inter-Parliamentary Union said: “The database of global climate legislation is a very valuable resource for parliamentarians. It enables them to know what types of laws exist in the world and to look for ways to translate them into the realities of their countries. In other words, this tool facilitates the law-making process which is a first critical element for ensuring that the Paris Agreement translates into national legislation.”

To mark the launch, the Grantham Research Institute and the United Nations Framework Convention on Climate Change (UNFCCC) are presenting a new analysis, based on the database, showing a rise in the number of countries that have introduced legislation to support their ‘nationally determined contributions’ (NDCs) to the Paris Climate Change Agreement. The analysis shows that 14 new laws and 33 new executive policies related to climate change have been introduced since the Paris climate change summit in December 2015. 18 of the new laws and policies mainly focus on climate change and 4 specifically relate to NDCs.

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