Why Electric Utilities Must Engage in Climate Resilience Planning


Posted on December 3rd, 2020 by Romany Webb

This post was co-authored by the Sabin Center’s Romany Webb and Michael Panfil and Sarah Ladin of Environmental Defense Fund. 

As the owners and operators of immense infrastructure, electric utilities are particularly vulnerable to the impacts of climate change.

Many electric utilities are already struggling to respond to higher temperatures, changing precipitation patterns, more intense storms, and other climate impacts that impair the operation of electric generation, transmission, and distribution infrastructure. The situation will only worsen in coming decades, which makes it imperative that electric utilities act now to identify future climate impacts, and develop tools and processes to manage them.

This type of planning is not just good practice, however. In our new report, Climate Risk in the Electricity Sector: Legal Obligations to Advance Climate Resilience Planning by Electric Utilities, we show that it is also legally required under state public utility law and tort law.

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By Hillary Aidun

Wind turbines on a farm in upstate New York. Photo: bobistraveling/Flickr CC

On Wednesday, December 2, the Sabin Center filed comments with New York’s Office of Renewable Energy Siting (ORES) to support scaling up renewable energy capacity throughout the state. ORES was created pursuant to the Accelerated Renewable Energy Growth and Community Benefit Act, which was enacted in April to streamline the process for siting renewable energy facilities in New York. ORES proposed regulations in September to implement the new law, and is accepting public comments on the proposal. 

The Sabin Center filed comments on behalf of grassroots organizations and individuals who want to welcome wind or solar energy facilities into their communities, including Win With Wind and Friends of Flint Mine Solar. Several signatories are clients of the Renewable Energy Legal Defense Initiative, a joint effort by the Sabin Center and the law firm of Arnold & Porter to provide pro bono legal counsel to local residents who support renewable energy projects that are facing opposition. 

The Climate Leadership and Community Protection Act (CLCPA) provides that a minimum of 70% of statewide electric generation must be supplied by renewable energy by 2030, and that 100% be derived from zero-emission sources by 2040. The CLCPA also requires the development of at least 6,000 megawatts of solar energy by 2025 and 9,000 megawatts of offshore wind electricity generation by 2035. Meeting the CLCPA mandates depends on the rapid and large-scale deployment of renewable energy capacity across the state. Many farmers and other landowners wish to participate in that effort, both because they are concerned about the effects of climate change, and because leasing or selling land to a renewable energy developer can bring in much-needed income when making a sustainable living through agriculture alone has become untenable. 

Unfortunately, zoning restrictions can be a barrier to renewable energy development, even where proposed facilities enjoy widespread local support. The Accelerated Renewable Energy Growth and Community Benefit Act recognizes and seeks to address this problem by allowing ORES to waive local restrictions that are unreasonably burdensome in light of the CLCPA targets and the environmental benefits of a proposed renewable energy facility. The Sabin Center’s comments urge ORES to give effect to this provision, and to ensure that the final regulations will promote, rather than hamstring, the safe and sensible siting of wind and solar energy facilities in New York State.

Read the comment letter here

November 2020 Updates to the Climate Case Charts


Posted on November 16th, 2020 by grennanmilliken

Portland, Oregon. Source: Gary Halvorson, Oregon State Archives

By Margaret Barry and Korey Silverman-Roati

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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 139.

FEATURED CASE

Oregon Supreme Court Said Public Trust Doctrine Did Not Impose Obligation to Protect Resources from Climate Change

The Supreme Court of Oregon rejected youth plaintiffs’ arguments that the public trust doctrine should be expanded to encompass additional natural resources and that the doctrine imposes affirmative fiduciary obligations on the State to protect trust resources from substantial impairment caused by climate change. With respect to the scope of the doctrine, the Supreme Court said the public trust doctrine extends both to the State navigable waters and to the State’s submerged and submersible lands. (A trial court had interpreted the scope more narrowly.) Although the court agreed with the plaintiffs that the doctrine “can be modified to reflect changes in society’s needs,” the court rejected the plaintiffs’ “expansive test” for determining which resources should be protected, finding that the plaintiffs’ two-factor test—(1) Is the resource not easily held or improved and (2) Is the resource of great value to the public for uses such as commerce, navigation, hunting, and fishing—would fail to provide “practical limitations.” The court therefore declined to expand the doctrine to cover additional resources, including the atmosphere. Regarding the State’s obligations under the public trust doctrine, the court rejected the plaintiffs’ contention that the doctrine imposes obligations like the obligations trustees of private trusts owe to beneficiaries. The court indicated that importing private trust principles “could result in a fundamental restructuring of the public trust doctrine and impose new obligations on the State.” The chief justice dissented, writing that in her view the judicial branch has “a role to play” in addressing the harms of climate change. She said the court “can and should issue a declaration that the state has an affirmative fiduciary duty to act reasonably to prevent substantial impairment of public trust resources.” Chernaik v. Brown, No. S066564 (Or. Oct. 22, 2020).

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What Biden’s Climate Plans Might Mean for Cities


Posted on November 13th, 2020 by Amy Turner

By Amy Turner

The election dust has mostly settled, and with its drawn out conclusion has come much speculation about potential climate policy in a new Biden administration, particularly in light of President-elect Joseph Biden and Vice President-elect Kamala Harris designating climate change as one of their four policy priorities. While much of the climate and environmental regulatory analysis looks at federal law and policy, the Biden administration is poised to advance city climate action as well.

Cities will continue to play an important role in developing GHG-reducing strategies across the buildings, transportation, waste and energy sectors, as well as in developing people-centered policy that prioritizes the needs of frontline communities. Federal action on climate change and a climate-focused plan to build back the U.S.’s Covid-rattled economy are most welcome, but they’ll act as complements and not replacements for the leadership cities demonstrate in the greenhouse gas reduction space. Carrying out the new administration’s climate policy will require careful attention to areas of authority that are traditionally delegated to cities and to the strengths cities have shown during the last decade or so of city-climate action. This blog post explores four ways the Biden administration could help cities advance their efforts to mitigate global greenhouse gas emissions, and in so doing identifies ways the administration should leverage cities’ expertise and take care to respect cities’ legal authority.

  1. The Biden administration can set greenhouse gas emissions and energy standards that act as floors, but that allow states and cities to set more ambitious standards if they choose.

The Biden campaign’s Plan to Build a Modern, Sustainable Infrastructure and an Equitable Clean Energy Future (part of its Build Back Better plan) offers several concrete examples of standards and investments that the administration might pursue in order to address climate change that would significantly reduce city GHG emissions. These include retrofitting four million buildings, weatherizing two million homes, building zero-emissions public transit, expanding vehicle charging infrastructure, greening the electricity grid, electrifying appliances, creating millions of jobs to carry out these proposals and more.

Policies for building energy and land use authority are areas that are largely left to state and local governments by the Tenth Amendment. They comprise part of states’ and cities’ inherent police powers – that is, the general authority of states and local governments to regulate to protect health, safety and general welfare (states vary in what aspects of their police powers they delegate to municipalities, but all states have expressly or impliedly delegated significant, if differing, aspects of these authorities to their municipalities). A city’s climate action vis-à-vis buildings or local land use is not merely an expression of municipal authority in a legal or academic sense; it plays an important role in developing climate policies that can be adopted by other local governments around the country. To borrow the words of Justice Brandeis, “a single courageous State [or city] may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” This “laboratories of democracy” framework has catalyzed climate action in the U.S. by allowing cities to experiment with novel, climate-friendly policies. “Natural gas bans” (or all-electric construction requirements) proliferated across the cities and towns of California after Berkeley first enacted one. A partnership agreement between Minneapolis and its local electric utilityto increase energy efficiency and renewable energy served as a model for agreements in Salt Lake City and Boulder. More recently, cities have responded to the Covid-19 pandemic by expanding bicycling and pedestrian access to street space, drawing inspiration and initial learnings from one another along the way.

Biden’s work to reduce greenhouse gas emissions, including in cities, should not come at the expense of this important innovation role cities play in moving climate policy forward. To that end, the Build Back Better plan can help augment city climate action, but should not overstep the traditional bounds of local authority that allow cities the ability to enact more ambitious climate policies. Two Build Back Better proposals deserve specific mention here. First, the plan proposes a “nationwide building performance standard.” Building performance standard policy has been developed by the careful work of path-blazing cities like Washington, D.C., St. Louis, New York and Boulder. Setting aside the current lack of federal legal authority for this, the Biden administration’s work in developing building policy should aim to set floors, not ceilings, for building performance requirements. A Biden administration could play a convening, funding and information-sharing role, developing model building performance standards that could be adopted by cities nationwide. It could offer incentives to cities that adopt ambitious building policies and it could advocate for a stronger International Energy Conservation Code, the code adopted by most U.S. states. But it should not hem cities in; in other words, federal building policy should aim to increase ambition but not preempt the building policies that have developed in the city “laboratories of [climate] democracy” and that now provide a roadmap for expanded action around the country.

Second, the Build Back Better plan proposes a public transit network for every city with a population of more than 100,000. This is a worthy goal, and the federal government can play a large role in supporting local public transit (see funding, item 3, below). New public transit systems will require land use decisions, which are traditionally and solidly in the local government domain. The Biden administration can offer significant support to these emerging public transit networks by offering resources, funding, know-how and best practices, as well as play a regional coordination role, ensuring that, say, local transit networks in Kansas City, Missouri and Kansas City, Kansas, meaningfully connect. It should, however, take care not to overstep the traditional authority of cities to set land use policy and make land use determinations.

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Book Launch: Combating Climate Change with Section 115 of the Clean Air Act


Posted on November 9th, 2020 by grennanmilliken

By Michael Burger

This past week has been an extraordinary one: on November 3 the people of the United States elected Joe Biden, who campaigned on an extensive and sophisticated climate plan, president of the United States. The next day, on November 4, President Donald Trump’s withdrawal of the U.S. from the Paris Agreement was made effective. The contrast between where the federal government is on climate change and where it needs to be could not be more visible, or more stark. 

The scale and scope of the climate crisis calls for immediate and comprehensive nationwide efforts to reduce greenhouse gas emissions. New legislation would be the best option. With the Senate still up for grabs, the prospect for federal legislation is uncertain, to say the least. But even new legislation may not go far enough in reducing GHGs to meet the nation’s international climate commitments. From Day One, the Biden administration will need to think through and set in motion regulations that rely on existing statutes to achieve the deep emission reductions the science says we need. 

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Sabin Center Launches Climate Attribution Database


Posted on November 6th, 2020 by grennanmilliken

By Daniel J. Metzger

Flooding in Houston following Hurricane Harvey. Photo: U.S. Army by 1st Lt. Zachary West

Climate change attribution science provides the evidentiary basis for establishing that anthropogenic climate change is real, that it is already here, and that predicted future changes must be taken seriously. Faced with this growing body of research, courts, policy-makers, and private actors are addressing critical and urgent legal questions, such as whether governments are doing enough to reduce emissions and adapt to climate risks, and whether corporations can be held liable for their contributions to the problem. 

Today the Sabin Center and Lamont-Doherty Earth Observatory are launching the Climate Attribution Database, a thematically organized repository of state-of-the-art climate change attribution science.

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October 2020 Updates to the Climate Case Charts


Posted on October 20th, 2020 by grennanmilliken

Charleston, SC filed suit against fossil fuel companies alleging their responsibility for “devastating” climate change impacts. (Source: Khanrak)

By Margaret Barry and Korey Silverman-Roati

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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 138.

FEATURED CASE

Federal Court in Rhode Island Allowed Failure-to-Adapt Claims to Proceed

The federal district court for the District of Rhode Island for the most part denied a motion to dismiss a citizen suit asserting that Shell Oil Products US and other defendants (Shell) failed to prepare a terminal in Providence for the impacts of climate change. Although the court found that the plaintiff, Conservation Law Foundation (CLF), lacked standing to the extent its claims relied on “future harms,” the court concluded that CLF had asserted “certainly impending harm” as to “near-term harms from foreseeable weather events.” In particular, the court found that the complaint “makes clear that a major weather event, magnified by the effects of climate change, could happen at virtually any time, resulting in the catastrophic release of pollutants” due to Shell’s alleged failure to adapt. The court further found that CLF’s members’ alleged injuries to their use and enjoyment of waters and roads in the terminal’s vicinity flowed from the alleged failure to prepare the terminal for the impacts of climate change. For the same reasons, the court found that the case was ripe for adjudication. The court also concluded that the complaint stated claims under the Resource Conservation and Recovery Act (RCRA), except to the extent the claims were based on federal, instead of state, RCRA regulations. The court found that CLF pleaded facts satisfying the “imminent and substantial endangerment” standard on the theory that the alleged failure to prepare the terminal for foreseeable weather events was an imminent endangerment. The court also found that the complaint stated claims under the Clean Water Act related to the terminal’s National Pollutant Discharge Elimination System permit. The court said the plaintiff’s claims required interpretation of the permit, including whether its requirement of “good engineering practices” required preparing the terminal for catastrophic weather. In addition, the court declined to exercise its discretion to abstain or to apply the doctrine of primary jurisdiction. Conservation Law Foundation v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. Sept. 28, 2020).

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By Daniel J. Metzger and Romany M. Webb

   President Trump meets with energy company executives in April 2020. Source: The White House.

Last week Vice President Pence expressed how “very proud” he is of the administration’s environmental record and declared that, if re-elected, President Trump will “take care of our environment and follow the science.” That would be a marked departure from the President’s first term. As documented in the Silencing Science Tracker, for nearly four years, President Trump and his  administration have consistently censored, misrepresented, and stifled scientific research and discussion. Many of the administration’s actions have targeted climate scientists, who have been removed from their positions, prevented from publishing their research, or had their findings misrepresented or simply ignored by officials. Instead of relying on science, the administration has turned to industry for advice, and put their priorities first.

Many have assumed that if President Trump is re-elected he and his administration will continue with their pro-industry agenda. But what specific actions might that entail? The Trump campaign has not issued any position papers outlining its climate priorities. The President and several administration officials have, however, recently expressed views on climate change and on whether and how it should be addressed. Based on their statements and actions taken during President Trump’s first term, we have identified eight energy and environmental policy objectives we believe are likely to be pursued if Trump is re-elected:

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By Romany Webb

At 6:38pm on August 14, the California Independent System Operator (CAISO)—the entity that manages much of California’s electricity grid—ordered electric utilities to initiate temporary rolling service cuts. As a result, nearly half a million customers lost electricity, some for over two hours. The following evening, over 320,000 customers lost electricity for up to ninety minutes, again due to CAISO ordered service cuts. Many were quick to blame the outages on the high level of renewable generation in California (see here and here for examples). The editorial board of the Wall Street Journal went so far as to declare the outages “a warning to the rest of America about the risks of Green New Deal policies.” In fact, however, the outages highlight the risks of failing to adopt policies to mitigate further climate change and plan for climate impacts that are already occurring or locked in.

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This publication is based on a piece drafted for Perry World House and made possible in part by a grant from the Carnegie Corporation of New York. The views expressed are solely the author’s.

Amidst the federal government’s struggle to contain a public health crisis as the U.S. presidential election nears, the House Select Committee on the Climate Crisis rolled out its own plan for averting catastrophe. Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and Healthy, Resilient, and Just America (Climate Plan) presents a roadmap for counteracting the climate crisis by building a green economy that prioritizes workers and environmental justice. Although the Climate Plan laudably centers equity, it misses the mark when it comes to climate-induced migration. Framing climate-induced migration solely as a national security threat, the Climate Plan avers the transnational impact of U.S. carbon pollution. For those federal governments interested in climate equity, centering a global perspective that includes those displaced, especially from small island developing states (SIDS), remains critical. Read more »

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This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

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