by Romany Webb and Justin Gundlach

There has been much talk in recent weeks about pricing carbon to reduce greenhouse gas emissions. Earlier this month, a group of former Republican cabinet members proposed adoption of a nationwide carbon price, starting at $40 per ton. That seems unlikely, however. Even the proposal’s main architect, former Secretary of State James Baker, acknowledged that he faces an “uphill slog” in convincing the federal government to act. In the absence of federal action, many states are stepping in. Here in New York, for example, we already have three forms of more or less direct carbon pricing. The most direct of these is imposed on certain fossil fuel power plants by requiring them to purchase carbon dioxide emissions allowances as part of the Regional Greenhouse Gas Initiative. The others, established through New York’s Clean Energy Standard, compensate renewable generators and nuclear plants for their low-carbon attributes.

Prompted in part by these policies, New York’s electric transmission grid operator (the “New York Independent System Operator” or “NYISO”) recently commenced a review to assess possible means of incorporating the cost of carbon emissions into wholesale electricity market prices. To inform that review, the Sabin Center is today publishing a white paper, exploring two approaches to carbon pricing. Under the first, NYISO would adopt a carbon price of its own initiative, with a view to improving the operation of wholesale electricity markets. The second would involve adoption of a carbon price designed to reflect and harmonize state level policies.

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The Sabin Center has just published a new survey examining how federal agencies have been implementing the Council on Environmental Quality (CEQ)’s guidance on climate change and National Environmental Policy Act (NEPA) reviews. The survey, which was conducted by a team of Columbia undergraduate students as their capstone project for the Sustainable Development program, reviews 31 environmental impact statements (EISs) published in the fall of 2016 and explains how these EISs implemented specific aspects of the CEQ guidance. You can download the written report and accompanying excel database here:

  • Report: How Did Federal Environmental Impact Statements Address Climate Change in 2016? by Saloni Jain, Omri Klagsbald, Giovanna Leigh Crozier-Fitzgerald, Taylor Quinn and Elana Sulakshana
  • Excel Database: Detailed overview of climate change considerations in federal EISs, Sept. 2016 – Nov. 2016

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Climate Deregulation Tracker – Improvements and Subscription Links


Posted on February 13th, 2017 by Jessica Wentz

Last month, we announced the launch of our Climate Deregulation Tracker to monitor efforts undertaken by the Trump administration and Congress to scale back or wholly eliminate federal climate mitigation and adaptation measures.

We are pleased to announce that the tracker website has been overhauled since the initial launch to make it easier for users to monitor recent developments and understand how those developments fit within the overall regulatory landscape. Users can also now subscribe to receive tracker updates in their inboxes:

Subscribe for weekly updates

Subscribe for daily updates

The latest weekly report is available here. We are also posting updates to facebook and twitter (#ClimateDeregulation).

For additional information about the tracker, please visit the website.

Climate Case Chart Updates – February 2017


Posted on February 10th, 2017 by Jessica Wentz

Each month, Arnold & Porter Kaye Scholer LLP 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 CLIMATE CASE CHART SINCE UPDATE #94.

FEATURED CASE

Massachusetts State Court Said Exxon Must Comply with Attorney General’s Civil Investigative Demand Seeking Climate Change Information

A Massachusetts Superior Court denied ExxonMobil Corporation’s (Exxon’s) motion to set aside a civil investigative demand (CID) issued by the Massachusetts attorney general seeking information on Exxon’s study of carbon dioxide emissions and their effect on climate change. The court also denied Exxon’s request that it stay its adjudication of the motion pending the resolution of the federal lawsuit brought by Exxon in Texas against the attorney general in which Exxon sought to bar enforcement of the CID. The Superior Court said that Massachusetts state courts would be more familiar with the state consumer protection act pursuant to which the CID was issued and further noted that the statute directed challenges to CID be brought in state court. The court concluded that it had personal jurisdiction over Exxon, finding that Exxon’s due process rights were not offended given its establishment of “minimum contacts” in Massachusetts. The court also said that the state consumer protection act would provide “hollow protection against non-resident defendants” if the court did not assert jurisdiction. The court also found that Exxon had not met its burden of showing that the attorney general acted arbitrarily and capriciously in issuing the CID, indicating her concerns regarding potential misrepresentations to Massachusetts consumers justified the CID. The court was not swayed by Exxon’s argument that it was being subjected to viewpoint discrimination for its views on global warming. The court also rejected Exxon’s arguments that the CID lacked the requisite specificity and was unreasonably burdensome. In addition, the court denied Exxon’s request for disqualification of the attorney general and appointment of an independent investigator. The court noted that the attorney general’s public remarks at a March 2016 press conference with other attorneys general did not evidence actionable bias and that her comments did nothing more than explain her reasons for the investigation to the consumers she represents. The court granted the attorney general’s request to compel Exxon to respond to the CID. In re Civil Investigative Demand No. 2016-EPD-36, No. 2016-1888-F (Mass. Super. Ct. Jan. 11, 2017).

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by Justin Gundlach

Plans for a third runway at the Vienna-Schwechat airport (pictured at right) were first submitted for review by the government of Lower Austria (one of Austria’s 9 regions) in March 2007. This week, the Lower Austrian government’s approval of those plans was struck down by Austria’s Federal Administrative Court (Bundesverwaltungsgericht) on the grounds that authorizing the runway would do more harm to the public interest than good, primarily because it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change.

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Michael Burger and Jessica Wentz

Last week, we published a blog entry highlighting some of the fundamental legal problems with President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs.” As we noted then, the order – which instructs agencies to ensure that the cost of regulations promulgated this year are no greater than zero, and to identify two regulations for potential repeal for every new regulation that is proposed – conflicts with statutory and judicial requirements on how agencies should account for costs and benefits in rulemaking.

Unsurprisingly, groups have decided to take legal action against the Executive Order. Today, the Natural Resources Defense Council, Public Citizen, and the Communications Workers of America filed a lawsuit seeking to block the Executive Order. The complaint alleges that the order is unconstitutional  in two ways.  First, the Executive Order violates the separation power because it “exceeds presidential authority and usurps Congress’s legislative authority” by asking agencies to consider factors not specified in or inconsistent with their governing statutes when making decisions about the promulgation or repeal of regulations.” Second, the Executive Order abdicates the President’s core executive duty to “take care that the law shall be faithfully executed” by “directing agencies to violate the law or rendering then unable to regulate as required by the law.” The complaint also alleges that the Executive Order requires agencies to act beyond their legal power (or ultra vires) and the Administrative Procedures Act.

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Lawsuit Seeks Info About Pruitt’s Ties to Industry


Posted on February 7th, 2017 by Justin Gundlach

by Justin Gundlach

E. Scott Pruitt

A new lawsuit filed by the Center for Media and Democracy (CMD) seeks to compel access to documents first requested in January 2015 about the industry ties of E. Scott Pruitt (pictured at right), Attorney General of Oklahoma and Donald J. Trump’s nominee for the post of EPA Administrator.

Federal and state open records laws have proved useful to advocates on both sides of environmental policy disputes. During the George W. Bush Administration, advocates and journalists used the federal Freedom of Information Act (FOIA) as part of campaigns and investigations related to the U.S. Environmental Protection Agency’s inaction on climate change and its approach to enforcement of pollution control laws. During the Obama Administration, groups like the Competitive Enterprise Institute made aggressive use of FOIA to gain access to documents and correspondence of U.S. Environmental Protection Agency staff. In addition to requests focused on EPA, this blog has described a number of efforts by climate deniers to use open records laws to harass scientists and gain access to their correspondence for the purpose of finding indications—or documents that could be made to look like indications—of research-related malfeasance.

Under the Trump Administration, the open records tables will turn once again—the ACLU called the FOIA request it filed on the first day of that Administration seeking documents about potential conflicts of interest “the first rock in our slingshot.”

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Forced Migration After Paris COP21: Evaluating the “Climate Change Displacement Coordination Facility”

By Phillip Dane Warren, Columbia Law Student and Former Sabin Center Intern


Climate change represents, perhaps, the greatest challenge of the twenty-first century. As temperatures and sea levels rise, governments around the world will face massive and unprecedented human displacement that international law currently has no mechanism to address. While estimates vary, the scope of the migration crisis that the world will face in the coming decades is startling. In addition to losing their homes, climate change migrants, under current law, will encounter a refugee system governed by a decades-old Refugee Convention that offers neither protection nor the right to resettle in a more habitable place. Armed with the most recent developments in international climate change law following the December 2015 Paris climate conference (COP21), this Note considers which of the existing bodies in the United Nations is best equipped to address forced migration caused by climate change. Inspired by the negotiations leading up to the Paris Conference, this Note advocates for a Climate Change Displacement Coordination Facility, housed within the United Nations Framework Convention on Climate Change (UNFCCC), to protect the rights of displaced persons. Finally, this Note maps out an institutional architecture and a long-term vision for a Displacement Coordination Facility. As opposed to an amendment of the 1951 Refugee Convention or a new rights-based treaty for climate migration, a Facility housed within the UNFCCC provides the greatest possible flexibility, autonomy, and cultural retention for climate change migrants while still protecting their essential human rights.

Michael Burger and Jessica Wentz

On Monday, President Trump issued an executive order directing all agencies to control regulatory costs by: (1) ensuring that the “incremental costs” of all new regulations that are finalized this year, including repealed regulations, are no greater than zero, and (2) identifying two regulations for potential repeal for every new regulation that is proposed. The order does not mention the benefits of regulation, nor does it specify how incremental costs should be calculated. It also fails to describe how agencies are supposed to comply both with the order and with their statutory mandates.

The lack of explanation is telling. Indeed, the order suffers from a fundamental problem: It conflicts with statutory requirements and undermines agencies’ abilities to implement those requirements faithfully. Agencies do not simply regulate for the sake of regulation – each regulation is aimed at implementing a specific provision of a statute passed by Congress. In many cases, agencies are either prohibited from considering costs or required to consider both costs and benefits when issuing regulation. And statutes do not typically, if ever, permit agencies to consider the aggregate costs of regulations across all of their programs when issuing a particular regulation.

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There has been much talk in recent days about government control of information, particularly information relating to climate change. On Tuesday, the Los Angeles Times reported that the Trump Administration had instructed officials at the Environmental Protection Agency (“EPA”) not to post on social media, or speak to journalists. This was followed by a report by Reuters on Wednesday, accusing the Administration of ordering EPA to remove the climate change page from its website. A member of the Trump transition team, Doug Erickson, later confirmed that “editorial” parts of EPA’s website are under review but suggested that not all climate change data would be removed. He did, however, indicate that scientific research on climate change would be subject to review prior to publication to ensure “that the voice coming from the EPA is one that’s going to reflect the new administration.”

These events have heightened concerns, both within and outside EPA, about scientific integrity at the agency. As has been widely reported in the media, administration review of scientific research may violate EPA’s Scientific Integrity Policy (“Policy”) which requires the agency’s work to be “of the highest quality, free from political interference.” But, there is much more to scientific integrity than that.  Equally important is transparency. This was recognized back in 1983 by then EPA Administrator William Ruckelshaus, an appointee of President Reagan, who declared that the agency must operate “in a fishbowl” and “communicate with everyone from environmentalists to those we regulate . . . as openly as possible.” Achieving this goal in the 21st century requires the posting of information on web pages and social media. That information must, by law, be accurate and unbiased.

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