Dane Warren
Sabin Center Summer Intern & Rising 2L at Columbia Law School

1024px-USSupremeCourtWestFacadeOn Thursday, June 25, the Affordable Care Act (ACA, also known as Obamacare) withstood another Supreme Court challenge in King v. Burwell. The case focused on a question of statutory interpretation to determine whether those who purchased insurance through federal exchange programs (instead of state-created exchanges) would remain eligible for federal subsidies. Three years ago when the Court considered a constitutional challenge to the ACA in National Federation of Independent Business v. Sebelius, Chief Justice Roberts cast the deciding vote to uphold the centerpiece legislation. This time around, the Chief Justice once again wrote the central opinion, one that could have far reaching effects well beyond health care and federal insurance exchanges.

One of the fundamental questions in King v. Burwell involved the oft-cited Chevron deference regime. The doctrine developed by the Supreme Court’s opinion Chevron v. NRDC imposes a two-step analysis for evaluating administrative agency interpretations of a statute that it administers. Under Chevron, the court first asks whether the language and intent of congress is clear. If Congress has not “addressed the precise question at issue”, the court will defer to the agency’s reasonable interpretation of the statute. Many speculated that the Supreme Court would apply the familiar Chevron deference to the ACA in King v. Burwell, perhaps finding ambiguity and deferring to the IRS’s (arguably) reasonable interpretation. The Court instead artfully sidestepped Chevron, holding that Chevron deference might not apply to cases of “deep economic and political significance,” especially if the delegation was not expressly made clear in the statute. Further, the Chief Justice noted that Congress would not have delegated a central health care policy issue to the IRS.[1] Read more »

We the People, for Climate Justice


Posted on July 1st, 2015 by Jennifer Klein

Bri Cornish
Sabin Center Summer Intern & Rising 2L at Columbia Law School

On Monday, June 8th, leaders from small island nations around the South Pacific issued the “People’s Declaration for Climate Justice.” The declaration unites the island nations, which are particularly vulnerable to the calamitous impacts of climate change, against large international companies emitting greenhouse gases, declaring that they will seek “climate justice” by holding polluters accountable. The document opens with “We, the people” and lists the nations of Fiji, Kiribati, the Philippines, Solomon Islands, Tuvalu, and Vanuatu as signatories.

Image credits: www.popularresistance.org

Image credits: www.popularresistance.org

The Climate Justice declaration is not a standalone promise. It came in conjunction with Greenpeace Southeast Asia’s plan to request a formal investigation through the Philippines Commission on Human Rights on the possible human rights violations committed by big carbon polluters. At present, however, the declaration commences no real legal action. The declaration’s emphasis on accountability implies that the island nations may intend to bring suit. But how realistic is it that a group of tiny island nations could effectively seek compensation against polluting companies? Is it likely that these companies would be found liable for damages resulting from the consequences of their business practices across the world?

This exact debate surfaced following a round of UN climate talks in Doha, Qatar[1] three years ago. At that conference, delegates from nations recognized the real possibility of liability for “loss and damage” from climate change impacts in developing nations through informal “institutional arrangements” with developed nations. Nonetheless, some legal scholars continue to doubt the efficacy of both litigation and climate diplomacy stemming from human rights forums and declarations like the People’s Declaration for Climate Justice.

Read more »

EPA studyGrant Glovin
Sabin Center Summer Intern

Last week, the Environmental Protection Agency (EPA) released a report, “Climate Change in the U.S. – Benefits of Global Action,” detailing the findings of the EPA’s Climate Change Impacts and Risk Analysis (CIRA) study, a peer reviewed project that seeks to assess climate change risk at a regional and sectorial level. Unsurprisingly, the report finds that, in almost all of the 20 sectors discussed, mitigation results in substantial economic benefits, with savings in individual sectors often reaching billions of dollars. Examples include labor (where mitigation would save $110 billion by decreasing the number of extremely hot days where work is impossible), water quality (at least $2.6 billion saved), agriculture ($6.6 to $11 billion saved), road maintenance ($4.2 to $7.4 billion saved), droughts ($9.3 to $34 billion saved due to effects on agriculture), and water supply ($11 to $180 billion). The report also notes that the costs of mitigation, which would primarily affect the energy supply sector, would be comparable to the costs for energy alone in a business-as-usual scenario, before accounting for adaptation or economic harm.

The report analyzes impacts under two scenarios. In the first, a business-as-usual scenario, emissions continue to increase at a steady rate, resulting in an atmospheric carbon dioxide concentration of 826 ppm in 2100. In the second scenario, considerable mitigation efforts lead to a peak in U.S. emissions before 2025, followed by a decline to twenty-eight percent of 2005 emissions levels in 2100. This is less ambitious than President Obama’s goals, which call for cutting greenhouse gasses to that level in 2025, but more in line with scenarios modeled by the Intergovernmental Panel on Climate Change (which this report compares to its two scenarios). The report uses two climate models, and links them to more specific, sector-based analyses in order to evaluate sectorial risk and quantify the costs associated with adaptation, productivity loss, and any other economic harm. Read more »

EIA Workshop photo with captionJessica Wentz
Associate Director and Postdoctoral Fellow

Climate change and its effects on temperature, precipitation, storm patterns, sea level rise, and other environmental processes have important implications for the construction, maintenance, and operation of buildings and infrastructure.

Recognizing this, the Obama Administration has issued several executive orders directing federal agencies to prepare for the impacts of climate change on federal operations and facilities.[1] The Council on Environmental Quality (CEQ) has also issued draft guidance directing federal agencies to account for these impacts when conducting environmental reviews under the National Environmental Policy Act (NEPA).[2] As noted in a previous blog post, CEQ’s draft guidance clarifies that agencies have an existing legal obligation under NEPA to consider “the ways in which a changing climate over the life of the proposed project may alter the overall environmental implications of such actions.”[3] A variety of other jurisdictions have issued similar guidance, directing project proponents to evaluate climate risks and adaptation opportunities in environmental impact assessments (EIAs).[4]

Last week, the Sabin Center convened a workshop to discuss the development of model protocols that agencies can use to assess the potential impacts of climate change during NEPA reviews of public infrastructure and buildings. Representatives from federal, state and local agencies, EIA consulting firms, and public interest organizations attended the workshop, providing their perspective on how climate-related considerations currently factor into the EIA process, whether model protocols would be useful in this context, and what they might look like. The participants generally agreed that EIA documents should include an assessment of climate change impacts and that model protocols would provide a useful template for conducting such assessments.

Read more »

Dutch Court Orders National GHG Reductions


Posted on June 24th, 2015 by Jennifer Klein
 1 comment  

By Michael B. Gerrard

This morning the Hague District Court issued its decision in a lawsuit brought by the Urgenda Foundation against the State of the Netherlands. The court ordered the Dutch state to limit annual greenhouse gas emissions from the country to 25% below 1990 levels by 2020. The government had pledged a 17% reduction, but the court found that insufficient.

The court concluded, “Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring — without mitigating measures — the court concludes that the State has a duty of care to take mitigation measures. The circumstances that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this.”

Read more »

A recently passed Wyoming law now criminalizes certain kinds of data collection: specifically, unauthorized collection of natural resource data. The new Wyoming Senate Enrolled Act No. 61 outlaws the collection of “resource data”[1] on any “open land” – private, state, or even (under some interpretations) federal land – if the collector does not have landowner authorization, and the collector submits or intends to submit that data to the state or federal government. The law also criminalizes even unintentional trespass if done to collect resource data, and even if the unintentional trespass is committed on the way to collecting resource data from an authorized location.

The creation of this law follows a lawsuit filed last year in Wyoming state court, where a dozen ranchers accused Western Watersheds Project employees of trespassing on private land to collect water samples. The Western Watersheds Project, an advocacy group focused on protecting watersheds and wildlife in the American West, had taken water samples on public lands to send to the state Department of Environmental Quality – and the ranchers, whose cows may roam on those public lands, claimed they must have crossed private land in order to collect some of the samples.[2] (Some public land in Wyoming can only be reached by traveling through private property.[3]) In three instances, the collected samples themselves were alleged to have been taken from private land.[4] This lawsuit is currently ongoing.[5]

The Wyoming legislature reacted by passing Senate Enrolled Act No. 61, in order “to conceal the fact that many of its streams are contaminated by E. coli bacteria,” writes Justin Pidot, an environmental law professor at the University of Denver and a pro bono attorney for the Western Watersheds Project.[6] (Or, as the Washington Post put it, “Wyoming doesn’t want you to know how much cow poop is in its water.”[7]) As Pidot explains, the “ranching community in Wyoming wields considerable political power.”[8] The Western Watersheds Project has tried to show that cattle farms are polluting public waterways and has argued that is being “targeted by ranchers for exposing poor water quality conditions on public lands grazing allotments.”[9]

Read more »

POPE FRANCIS ON ENVIRONMENTAL LAW


Posted on June 22nd, 2015 by Jennifer Klein

By Michael B. Gerrard

Pope_Francis_Korea_Haemi_Castle_19_(cropped)The remarkable Encyclical Letter issued last week by Pope Francis could be read as a primer on the importance and idealized operation of many of our environmental laws.

The headings below are mine; the text is from the Vatican.​

National Environmental Policy Act

​183. Environmental impact assessment should not come after the drawing up of a business proposition or the proposal of a particular policy, plan or programme. It should be part of the process from the beginning, and be carried out in a way which is interdisciplinary, transparent and free of all economic or political pressure. It should be linked to a study of working conditions and possible effects on people’s physical and mental health, on the local economy and on public safety. Economic returns can thus be forecast more realistically, taking into account potential scenarios and the eventual need for further investment to correct possible undesired effects. A consensus should always be reached between the different stakeholders, who can offer a variety of approaches, solutions and alternatives. The local population should have a special place at the table; they are concerned about their own future and that of their children, and can consider goals transcending immediate economic interest. We need to stop thinking in terms of “interventions” to save the environment in favour of policies developed and debated by all interested parties. The participation of the latter also entails being fully informed about such projects and their different risks and possibilities; this includes not just preliminary decisions but also various follow-up activities and continued monitoring. Honesty and truth are needed in scientific and political discussions; these should not be limited to the issue of whether or not a particular project is permitted by law. Read more »

Jessica WentzGemenne with caption
Associate Director and Postdoctoral Fellow

Saturday, June 20 is World Refugee Day – an occasion for recognizing the plight of millions of people who have been forced to leave their homes due to conflict, persecution, natural disasters, and other circumstances beyond their control. The United Nations Refugee Agency (UNHCR) and other civil society organizations will be hosting a variety of events to honor these individuals and raise funds to help support their resettlement or return home.

The magnitude of the refugee crises was highlighted in the UNHCR’s annual Global Trends Report, which was released yesterday (June 18). The report found that worldwide displacement by the end of 2014 had reached an all-time high, with a staggering 59.5 million forcibly displaced by wars and conflict. Although the report did not address displacement induced by natural disasters, environmental degradation, or climate change, the UNHCR has expressed serious concerns about these forms of displacement in other publications. The agency has also recognized that armed conflicts like those discussed in the Global Trends Report are often “rooted in environmental factors” such as water scarcity and land degradation, and that many of these problems will be exacerbated by the impacts of climate change.

Read more »

Democratic Senators Introduce Carbon Tax Bill


Posted on June 16th, 2015 by Jennifer Klein

Dane Warren
Sabin Center Summer Intern & Rising 2L at Columbia Law School

Prim_GRESOn Wednesday, June 10, two Democratic Senators (Sheldon Whitehouse of Rhode Island and Brian Schatz of Hawaii) introduced a bill that would impose a carbon tax of $45 per ton of carbon emissions. For other greenhouse gases, the bill imposes a carbon dioxide equivalent fee. The sponsors claim that the bill would cut carbon emissions at least 40% by 2025 (compared to 2005 base levels) and raise $2 trillion in revenue over ten years. The tax would increase by 2% each year, adjusted for inflation, until emissions fall 80% compared to 2005 levels. Whitehouse and Schatz promise emissions reductions far exceeding the Obama Administration’s target of 26-28% over the same period.

The contours of this new proposal are intriguing to say the least. The American Opportunity and Carbon Fee Act, as its titled, would levy a $45 tax on upstream sources of emissions, namely coal, petroleum products, and natural gas. The $45 number comes from the Federal Government’s estimate of the social cost of carbon[1] – or the overall cost of carbon not internalized by market forces. Notably, calculating the social cost of carbon remains an elusive and complex task.

Read more »

Joanna Zhou

Columbia University delegates – Left to Right David Prieto, Joanna Zhou, Michael Kowiak, Kimberly Stama, Nikita Perumal, Elana Sulakshana, Logan Brenner and Anastasia Yanchilina.

On 26 May 2015, eight students from Columbia University attended “Make it Work: Paris Climat 2015” – an innovative simulation of international climate change negotiations. The simulation was hosted and organized by Sciences Po and held in Nanterre, Paris over six days. It was attended by over 200 students representing 41 delegations, and included students from universities such as Tsinghua University, London School of Economics, Sydney University, UCLA and various universities across France. The end result after days of intense negotiations was a 25 page final text, encapsulating a visionary and universal agreement for climate action.

Although based on the procedures of the UNFCCC COP negotiations, the simulation aimed to break free of the conventional boundaries within which previous COP negotiations have operated. The main purpose of the negotiation was to experiment within an alternate negotiating framework, to see if students could come up with ambitious and innovative solutions to address the issue of climate change.

The “theatre of negotiations”

The “theatre of negotiations”

One crucial difference was that the delegations not only included nation states representing diverse national interests, but also included delegations representing various sectors of the environment and other key stakeholders. Such delegations included “Soil”, “Oceans”, “Atmosphere”, “Endangered Species”, “the Sahara Dessert” and “Forests”. Other climate change stakeholders also represented at the negotiations included “International Regulatory Bodies”, “the European Union”, “the Internet”, “Youth”, “NGOs”, “Polar Regions”, “Stranded Oil Assets” and “Climate Refugees”.  These delegations were given the same negotiation and voting rights as nation states. Read more »

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