By Dena Adler

A newly released Sabin Center White Paper, “State Hazard Mitigation Plans & Climate Change: Rating the States 2019 Update,” reviews how well the states have integrated climate change into their State Hazard Mitigation Plans (SHMPs). SHMPs serve as “blueprints” for state efforts to prepare for natural and man-made hazards and must include consideration of changing future climate conditions based on 2016 guidance from the Federal Emergency Management Agency (FEMA). States must submit SHMPs to FEMA and update them every five years to remain eligible to receive certain types of non-emergency disaster assistance, including funding for mitigation projects.

Key Report Findings Include:

  • The Majority of States Now Recognize Climate Change Explicitly in Their SHMPS: In the 2019 SHMP Report, 49/53 states and territories achieved a category 3 or higher ranking, which means they explicitly recognize and discuss climate change in their plans. (See Figure 1’s caption for description of category ranking system.)

 

Figure 1: Map of State Hazard Mitigation Plan (SHMP) Climate Change Ranking

The SHMPs are ranked into 5 categories, with “1” indicating SHMPs that did not recognize climate change or did so inaccurately and “5” indicating plans with extensive consideration of how climate change will affect hazards, is integrated into planning, and should be mitigated through adaptation actions.

Read more »

This week, Hillary Aidun joins the Sabin Center as the 2019-2021 Climate Law Fellow.  Hillary’s work will focus on domestic and international climate change litigation, regulation of greenhouse gas emissions, and assessment and disclosure of climate risk, among other things.

Hillary previously served as a law clerk to the Honorable Robert N. Chatigny of the U.S. District Court for the District of Connecticut and the Honorable Barbara A. Lenk of the Supreme Judicial Court of Massachusetts.  Hillary earned her J.D. at Yale Law School, where she was a founding member of the Environmental Justice Clinic and participated in the Environmental Protection Clinic. Before law school Hillary studied conservation efforts in the Amazon Rainforest as a Fulbright Fellow.  She holds a B.A. from Middlebury College.

Amy Turner also joins the Sabin Center as a senior fellow for our newly launched Cities Climate Law Initiative. This new effort will work with city legal departments and sustainability offices, and the networks that link them together, to provide key resources to efficiently and effectively address legal questions confronting the urban climate transition. This initiative is in partnership with the Urban Sustainability Directors Network and is generously supported by the Kresge Foundation.

Prior to her work with the Sabin Center, Amy was the executive director and a co-founder of the NYC Climate Action Alliance, and she continues to serve on its board of directors. She practiced environmental and transactional law for ten years at Davis Polk & Wardwell LLP, Milbank, Tweed, Hadley & McCloy LLP and in solo practice. Amy graduated from Middlebury College, magna cum laude, and from Harvard Law School, where she was an articles and technical editor for the Harvard Environmental Law Review. She currently serves as co-chair for the New York City Bar Association’s Committee on Environmental Law and as secretary of the board of directors for the Brooklyn Greenway Initiative.

Finally, we welcome Moira K. O’Neill as an associate research scholar, specializing in local government law, land use, and city planning.

At Columbia, Moira teaches Community Development and Local Government Law & Politics in the Graduate School of Architecture, Planning, and Preservation. She also holds an academic appointment at UC-Berkeley’s Center for Law, Energy, and the Environment. Moira’s research and teaching build on more than a decade of professional experience in legal practice and consulting for public entities. Her former clients include cities, housing authorities, school districts, and public universities throughout California.  Her legal experience also includes clerking for the Honorable Saundra Brown Armstrong of the United States District Court, Northern District of California, and working as a law clerk in the office of the Environment and Natural Resources Unit, Civil Division, Department of Justice. Moira received her juris doctor, Order of the Coif, from the University of California, Hastings College of the Law in 2006.

We are thrilled to have Hillary, Amy, and Moira on board, and look forward to sharing their work soon.

July 2019 Updates to the Climate Case Charts


Posted on July 3rd, 2019 by Tiffany Challe

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 # 123

FEATURED CASE

Federal Court Said Baltimore’s Climate Case Against Oil and Gas Companies Belonged in State Court

The federal district court for the District of Maryland remanded the City of Baltimore’s climate change lawsuit against oil and gas companies to state court. The court concluded that federal question jurisdiction did not exist and also rejected alternative bases for federal jurisdiction. First, the court rejected the defendants’ argument that federal common law governed Baltimore’s state law nuisance claim as a “cleverly veiled preemption argument.” The court said ordinary preemption was merely a defense and did not permit it to treat the claim as if it had been pleaded under federal law for jurisdictional purposes. The court further concluded that federal common law would not support removal even under the complete preemption doctrine because the defendants had not shown that any federal common law claim for public nuisance was available and case law suggested that the Clean Air Act displaced any such claim. Second, the court found that the case did not fall within the “slim category” of cases in which federal question jurisdiction exists for state law claims that raise substantial and disputed federal issues. Although the court acknowledged that there were “federal interests in addressing climate change,” the court said the defendants had not established that “a federal issue” such as foreign policy or a federal regulatory scheme was a necessary element of Baltimore’s claims. Third, the court rejected the argument that the foreign affairs doctrine or the Clean Air Act completely preempted Baltimore’s claims. Fourth, the court found no basis for federal jurisdiction based on defendants’ activities on federal enclaves. Regarding the alternative bases for removal jurisdiction, the court found that the defendants did not demonstrate that jurisdiction existed under the Outer Continental Shelf Lands Act, or that the claims were removable under the federal officer removal statute, the bankruptcy removal statute, or admiralty jurisdiction. Pursuant to a stipulation by the parties, the remand order is temporarily stayed. The defendants are seeking to stay the order pending their appeal to the Fourth Circuit. Mayor & City Council of Baltimore v. BP p.l.c., No. 1:18-cv-02357 (D. Md. June 10, 2019).


Read more »

On Friday the White House Council on Environmental Quality (CEQ) unveiled new draft guidance on the consideration of climate change in National Environmental Policy Act (NEPA) reviews. This is intended to replace the final CEQ guidance that was issued by the Obama administration in 2016 and subsequently revoked by President Trump. As with the 2016 version, this new draft guidance reflects CEQ’s interpretation of NEPA requirements but does not in and of itself create new legal obligations or affect existing obligations.

The draft guidance is not as significant a departure from its 2016 predecessor as one might expect based on other actions that the Trump administration has undertaken to roll back federal climate protections and advance its pro-fossil fuel agenda. The draft guidance acknowledges that greenhouse gas (GHG) emissions are an environmental impact, that both direct and indirect GHG emissions should be quantified where it is practicable to do so, and that “comparing alternatives based on potential effects due to GHG emissions… can help agencies differentiate among alternatives.” It also acknowledges that agencies should account for the effects of climate change on baseline environmental considerations where that analysis would not be overly speculative. These provisions are generally consistent with judicial interpretations of what NEPA requires.

The draft guidance does contain a number of statements which appear aimed at limiting NEPA disclosures of GHG emissions and climate change impacts, but these are unlikely to have a significant effect on agency practice or judicial review for several reasons: (i) as noted above, the guidance does not carry the same legal force as the statute or implementing regulations; (ii) the guidance does not represent a major departure from current agency practice, and (iii) many of these statements are too vague to contain meaningful instruction.

Read more »

Four Important Points About EPA’s Affordable Clean Energy Rule


Posted on June 20th, 2019 by Jessica Wentz

By Dena Adler, Jessica Wentz, and Romany Webb

On Wednesday, June 19, the U.S. Environmental Protection Agency (EPA) finalized its so-called Affordable Clean Energy (ACE) rule. The ACE rule repeals and replaces the 2015 Clean Power Plan (CPP) which aimed to reduce carbon dioxide emissions from existing power plants by 30% below 2005 levels by 2030. To that end, the CPP established state-specific targets for reducing emissions from the electric power sector, and required states to develop plans for achieving those targets. The ACE Rule takes a different approach, directing states to set standards of performance for individual power plants, and thus effectively allowing them to decide how much to cut emissions. Here are 4 important things to know about the ACE Rule:

1. The ACE Rule Directs States to Establish Performance Standards for Power Plants Based Solely on Heat Rate Improvements: Section 111(d) of the Clean Air Act (CAA) provides for the establishment of “standards of performance” for certain existing sources of air pollution. Under the Act, the standards must reflect the emissions reductions that can be achieved through application of the “best system of emission reduction” (BSER) for the pollutant and source.

In the CPP, the EPA defined the BSER for carbon dioxide emissions from existing power plants based on three “building blocks,” reflecting (1) heat-rate improvements at coal-fired power plants, (2) increased utilization of natural gas combined cycle units, and (3) increased use of renewable energy. However, EPA has now concluded that BSER should not include so-called “outside the fence line” measures, such as those in building blocks 2 and 3. To justify that conclusion, EPA points to section 111(a) of the Clean Air Act, which requires standards of performance to reflect the emissions reductions achievable through “application” of the BSER. Thus, according to EPA, the BSER must comprise systems that can be “applied” or “put into operation” at the emissions source (i.e., in the case of the ACE Rule, the power plant). Contrary to its previous view, EPA asserts that the BSER “cannot be premised on a system . . . that is implementable only through the combined activities” of multiple sources, such as generation switching (see point 2 below for more on this).

The ACE Rule redefines the BSER to only include on-site, heat-rate efficiency improvements at coal-fired power plants. The Rule includes a list of “candidate technologies” for improving heat-rate efficiency that states can use to establish standards of performance for individual power plants. (This is consistent with the approach in the proposed rule published by EPA in August 2018 and discussed in our previous blog post here). The standards will, therefore, be significantly less stringent than those established under the CPP and result in fewer emissions reductions. According to EPA, the ACE Rule will reduce carbon dioxide emissions by just 11 million short tons in 2030, whereas the CPP would have delivered emissions reductions of 415 million tons (both relative to a no action baseline).

Read more »

The Trump administration has undertaken a sweeping portfolio of actions aimed at weakening federal climate protections and promoting the development and use of fossil fuels.

A new report from Columbia Law School’s Sabin Center for Climate Change Law takes a critical look at what this effort has actually accomplished. It concludes that the administration has achieved far less than meets the eye, due to the statutory safeguards for federal agency rulemaking and judicial intervention to enforce those safeguards. There are dozens of different deregulatory actions underway at various agencies, the most notable examples being the planned rollbacks of rules like the Clean Power Plan and the motor vehicle greenhouse gas emission standards. But in most cases, the pace of the rollbacks has been slow. This is particularly true where the administration is seeking to repeal or revise major regulations, as the administration must adhere to notice-and-comment procedures and must also justify changes to these rules in light of the statutory provisions it is implementing.

The following figure shows the status of efforts to rollback regulations aimed at controlling greenhouse gas emissions and other externalities of fossil fuel use:

 

Read more »

By Romany Webb

Last Tuesday, June 4, the D.C. Circuit decided the latest in a string of cases challenging the Federal Energy Regulatory Commission (FERC)’s approval of new interstate natural gas pipelines. The case – Birckhead v. FERC – focused largely on FERC’s obligation to consider the climate change impacts of pipeline development, which has recently become a key point of debate both within and outside the Commission. Much of the debate has centered on FERC’s obligations under the National Environmental Policy Act (NEPA). Comparatively little attention has been devoted to the obligations imposed on FERC by other statutes. That is the focus of a new Sabin Center working paper – “Climate Change, FERC, and Natural Gas Pipelines”– published today. The paper argues that the Natural Gas Act (NGA) establishes an independent requirement for FERC to consider climate change impacts when approving interstate natural gas pipelines. To support that argument, the paper provides a detailed analysis of section 7 of the NGA, which governs FERC’s pipeline approval process.

Under section 7 of the NGA, before approving an interstate natural gas pipeline, FERC must find that it “is or will be required by the present or future public convenience and necessity.” FERC’s finding must be based on an evaluation of “all factors bearing on the public interest,” which necessitates a broad-ranging assessment of the need for pipeline development and its likely impacts. While FERC purports to consider both economic and environmental impacts as part of its assessment, a review of recent pipeline approvals shows that it often focuses solely on economic issues. Even where environmental factors are considered, FERC typically fails to assess the full climate change impacts associated with pipeline development, including the greenhouse gas emissions resulting from “upstream” natural gas production and “downstream” use. This not only undermines the quality of FERC’s decision-making, but also arguably violates section 7 of the NGA.

In Birckhead v. FERC, as well as numerous other cases, the courts have recognized that the environmental impacts of pipeline development are relevant to FERC’s assessment of public convenience and necessity under section 7 of the NGA. In its early decisions under section 7, FERC routinely considered upstream and downstream environmental impacts, often with the approval of the courts. The court decisions, as well as the language and history of section 7, strongly suggest that FERC is legally required to consider upstream and downstream impacts under the NGA. FERC must, therefore, change its approach to evaluating pipeline projects. Going forward, FERC must consider projects’ full climate change impacts, including upstream and downstream greenhouse gas emissions. That could have significant implications for the approval of projects since, after accounting for upstream and downstream emissions, FERC may be unable to conclude that pipeline development is required by the public convenience and necessity.

By Dena Adler

The Trump Administration is losing on climate in the courts. More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge.   Nevertheless, climate change is one arena where the Trump Administration’s rollbacks have been both visible and real. In total, the Sabin Center’s U.S. Climate Deregulation Tracker identifies a total of 94 actions taken by the executive branch in 2017 and 2018 to undermine and reverse climate protections.

But despite the Trump Administration setting a high-water mark for climate change deregulation, a new Sabin Center working paper, “U.S. Climate Litigation in the Age of Trump: Year Two” finds that due to vigilant litigation, the courts have largely constrained extralegal rollbacks and other attempts by the Trump Administration to undermine climate protections by overreaching executive authority, violating statutory requirements for environmental review, or flouting administrative law—at least thus far. (An executive summary of the paper is also available.) This paper updates a report on climate change litigation during the first year of the Trump Administration. Read more »

June 2019 Updates to the Climate Case Charts


Posted on June 6th, 2019 by Tiffany Challe

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 # 122

FEATURED CASE

D.C. Circuit Upheld FERC Approval of Pipeline Project Despite Concerns About Analysis of Upstream and Downstream Greenhouse Gas Impacts

The D.C. Circuit Court of Appeals rejected a challenge to the Federal Energy Regulatory Commission’s (FERC’s) environmental review for a natural gas compression station in Tennessee despite the court’s “misgivings” regarding FERC’s “decidedly less-than-dogged efforts” to obtain the information it would need to determine that greenhouse gas emissions were a reasonably foreseeable indirect effect of the project. FERC had declined to consider the impacts of upstream gas production and downstream gas combustion in its National Environmental Policy Act (NEPA) review, concluding that such impacts did not qualify as indirect effects of the project. With respect to upstream emissions, the D.C. Circuit found that the petitioners had failed to rebut FERC’s conclusion that the record did not provide evidence to establish the necessary causal relationship between the project and upstream gas production. The court indicated that such evidence might include the number and location of any wells that would be drilled as a result of production demand created by the project. The court also said the petitioners failed to “meaningfully dispute” FERC’s assertion that it would be futile to ask applicants to provide such information. Regarding downstream emissions, the court rejected FERC’s position that downstream emissions were not reasonably foreseeable because gas associated with the project might displace higher-emission fuels or otherwise offset emissions. The court also rejected FERC’s contention that FERC could not be considered the “legally relevant cause” of downstream emissions because it lacked jurisdiction over any party other than the project applicant. The court concluded that FERC is a “legally relevant cause” of such effects because the Natural Gas Act directs FERC to consider “the public convenience and necessity” and therefore provides FERC with statutory authority to act on information about the direct and indirect environmental effects of projects it approves. The court also said it was “troubled” by FERC’s reliance on a lack of information about the destination and end use of gas to justify its decision not to consider the downstream impacts. The court wrote: “It should go without saying that NEPA also requires the Commission to at least attempt to obtain the information necessary to fulfill its statutory responsibilities.” In this case, however, the petitioners had not raised the issue of FERC’s failure to develop the record in the proceedings before FERC. The court therefore concluded that it lacked jurisdiction to decide whether FERC had violated NEPA by failing to further develop the record. The court also rejected an argument that FERC had failed to adequately assess alternative sites for the project. Birckhead v. Federal Energy Regulatory Commission, No. 18-1218 (D.C. Cir. June 4, 2019).

Read more »

The Paris Agreement – Au Revoir?


Posted on May 24th, 2019 by Tiffany Challe

by Susan Biniaz*

On June 1st, we will hit the two-year mark since President Trump announced his intention to pull the United States out of the Paris Agreement.  We are also getting closer to November 4th, the first day on which the withdrawal process can actually begin.  While there is no realistic expectation that the Administration will reconsider its decision to withdraw, it is nonetheless worth stepping back to examine various facts and fictions surrounding the Agreement, U.S. withdrawal, and related issues.

 

What Does the Paris Agreement Do?

  • The Paris Agreement combines agreed global goals with national flexibility.
  • A key goal is to limit the increase in global average temperature to well below 2oC (and to pursue efforts to limit it to 1.5o).
  • Each Party decides on its own greenhouse gas emissions targets, reflected in a so-called “nationally determined contribution,” taking into account its unique national circumstances. Targets are not legally binding, meaning it is not a violation of the Paris Agreement if a Party does not achieve its target.
  • There are strong reporting and review provisions, so we know the level of greenhouse gases each Party is emitting and what kind of progress it is making in implementing its targets.
  • There are also regular global reviews, so we can assess how the world is doing collectively.
  • All countries are covered by the terms of the Agreement, and nearly all of them have joined.

 

That Sounds Like the Opposite of the Kyoto Protocol.

  • That’s right.
  • As will be recalled, the United States never joined the Kyoto Protocol.
  • Kyoto contained emissions targets that were internationally negotiated and legally binding. Developing countries, even those with significant rising emissions, had no targets.
  • Even before the Kyoto negotiations were concluded, the Senate expressed its (95-0) view, in the “Byrd-Hagel Resolution,” that any future climate change agreement should neither harm the U.S. economy nor contain legally binding emissions commitments for the United States without also containing binding commitments for developing countries.
  • President Clinton did not pursue Kyoto, in the absence of “meaningful participation” from “key” developing countries, and President George W. Bush more forcefully rejected Kyoto, citing the standard reflected in the Senate Resolution.
  • Late in the second term, President Bush rejoined negotiations under the Framework Convention on Climate Change, an agreement that the United States had joined under President George H.W. Bush.

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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