A July 2016 federal court decision has upheld Wyoming laws that impose criminal and civil penalties for collection of “resource data”[1] when the collection involves trespassing on private lands, even when the trespass is unintentional, and even when the trespass is incidental to the collection.

The Wyoming legislature enacted these laws in 2015, outlawing the collection of “resource data” on any “open land” when the data was submitted or intended to be submitted to the government.  The statutes defined “open land” as “land outside the exterior boundaries of any incorporated city, town, subdivision . . . or development.”  There was confusion as to whether this meant private land only, or whether state or even federal land also qualified.

In 2015, the Western Watersheds Project, a conservation non-profit that monitors water quality in Wyoming and other states, filed a suit challenging the new laws, accompanied by other groups including the National Press Photographers Association and the Natural Resources Defense Council.  The Plaintiffs claimed that these data trespass laws amounted to unconstitutional censorship, violating the First Amendment’s Free Speech clause and the Fourteenth Amendment’s Equal Protection clause, and they argued that Wyoming’s data trespass laws were preempted by various federal environmental statutes. Read more »

lng-terminal-shipBy Michael Burger and Jessica Wentz

Last month, the D.C. Circuit Court of Appeals issued two decisions upholding the Federal Energy Regulatory Commission (FERC)’s environmental impact analysis for liquefied natural gas (LNG) terminals in Louisiana (No. 14-1249) and Texas (No. 14-1275). In both cases, the court rejected claims that FERC should have considered upstream and downstream greenhouse gas emissions as part of their NEPA review. In particular, the court opined that FERC does not have to analyze the extent to which natural gas exports would induce additional natural gas production and the effects of induced production on greenhouse gas emissions as indirect effects of the LNG terminal approvals.

In a thoughtful assessment of the decisions, one group of commentators has suggested that these decisions may make it more difficult for the Council on Environmental Quality (CEQ) and other courts to demand that federal agencies consider upstream and downstream impacts in environmental reviews for fossil fuel-related approvals. But we think this overstates the reach of the D.C. Circuit decisions, both of which were based on the unique set of circumstances surrounding the approval of LNG exports, and that a full accounting of the climate impacts of these and other export projects should still be forthcoming.

Decisions regarding the export of natural gas from the United States are split between two agencies: FERC and the Department of Energy (DOE). While FERC has jurisdiction over the siting, construction, and operation of LNG export terminals, it is DOE that has the sole authority to license the export of any natural gas from those terminals, based on its determination of whether such exports would serve the public interest. Consistent with this division of responsibilities, the court held that FERC’s NEPA analysis did not have to address the indirect effects of the anticipated export of natural gas. The court explained:

The Department’s independent decision to allow exports—a decision over which the Commission has no regulatory authority—breaks the NEPA causal chain and absolves the Commission of responsibility to include in its NEPA analysis considerations that it “could not act on” and for which it cannot be “the legally relevant cause.” (No. 14-1275, p. 18.)

The court cited Public Citizen v. Dept. of Transportation, 541 U.S. 752 (2004) as the primary basis for its decision. There, the Supreme Court held that an agency need not consider environmental effects in its NEPA review when it has “no ability” to adopt a course of action that could prevent or otherwise influence those effects. 541 U.S. at 766.

Importantly, the DC Circuit made clear that it was expressing no opinion on whether FERC’s environmental analysis would have been adequate to satisfy DOE’s independent NEPA obligation in authorizing the export of natural gas, even suggesting that DOE would be the appropriate agency to conduct an upstream/downstream analysis of LNG exports, if such an analysis is required. The DOE’s compliance with NEPA in the context of LNG facilities is the subject of two other lawsuits, one challenging DOE’s order authorizing the LNG exports at issue in these cases (Sierra Club v. DOE, No. 15-1489), and another challenging the DOE export approval for another such facility in Maryland (Sierra Club v. DOE, No. 16-1186).

In short, the D.C. Circuit will not be settling questions regarding the scope of the indirect impact analysis for LNG exports until it issues its opinions in the cases involving DOE’s export authorizations (which will probably be decided this fall or in early 2017).

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Community Resilience Indicators: Developing New Standards

Posted on July 21st, 2016 by Justin Gundlach

by Kai Salem
Sabin Center Summer Intern

Concept Paper coverLast month, the Mitigation Framework Leadership Group (MitFLG), whose members represent federal agencies and state and tribal authorities, published an important study: the Draft Interagency Concept for Community Resilience Indicators and National-Level Measures. This report grows out of the Federal Emergency Management Agency’s (FEMA’s) 2011 National Preparedness Goal, which identified community resilience as a key aspect—a “core capability”—of the mitigation of future disasters. Although federal programs have prioritized local resilience to disasters for five years, no federal agency has yet devised metrics to evaluate resilience. This new report, a response to a 2012 recommendation of the National Research Council, is an important step towards identifying indicators by which to measure community resilience. The report and community resilience are discussed further below the jump.

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Justin Gundlach
Climate Law Fellow

The International Energy Agency, a respected source of data and insights into energy markets and technologies, has published a report – Energy and Air Pollution – on how the energy sector affects air quality and public health. As the report explains, “[o]ur energy system contributes vitally to economic and social progress around the world. But there are costly side-effects.” The report marks an important development for the IEA: this is the first time the IEA has conducted a major study on the role energy plays in air pollution. The report is the latest example of a growing recognition that sound energy policy cannot not be indifferent to public health, and that an integration of energy and environmental policy goals can lead to more socially cost-effective economic development.

The three charts below the jump illustrate how the report integrates data and policy information for international comparison.

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Climate Change Litigation Chart Updates – July 2016

Posted on July 11th, 2016 by Jessica Wentz

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 at gmail dot com.

Here are the additions to the litigation charts (Update #88).


Eighth Circuit Panel Agreed That Minnesota Low-Carbon Power Law Was Unlawful But Disagreed as to Why

The Eighth Circuit Court of Appeals affirmed a district court’s conclusion that Minnesota’s Next Generation Energy Act (NGEA) was unlawful. The NGEA barred importing energy from a “new large energy facility” outside Minnesota or entering into new long-term power purchase agreements, where such activities would contribute to statewide carbon dioxide emissions. Only one judge on the Eighth Circuit panel agreed with the district court conclusion that the statute constituted impermissible extraterritorial regulation under the dormant Commerce Clause. The other two judges concluded that the law was preempted by the Federal Power Act, with one of the two judges also concluding that the law conflicted with the Clean Air Act. A blog post about this decision appears here. North Dakota v. Heydinger, Nos. 14-2156, 14-2251 (8th Cir. June 15, 2016): added to the “Challenges to State Action” slide.
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Justin Gundlach
Climate Law Fellow

Biniaz paper cover pageSusan Biniaz, Columbia Law School class of 1983, has been the lead climate change lawyer for the U.S. Department of State since 1989. She recently spoke at the law school about her experience negotiating climate agreements. In the fall of 2016 she will be teaching international environmental law as a newly-appointed member of the law school’s adjunct faculty.

Her new working paper, Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime, resists simple categorization. It is part play-by-play retelling of decades of climate negotiations, part recipe for successful reconciliation among disagreeing parties, part decoder for anyone seeking to comprehend the layered meanings of key words and phrases in the texts of the United Nations Framework Convention on Climate Change or other key documents, including the Paris Agreement. It is also an entertaining set of examples for legal grammarians who are (rightly) certain that small choices of phrasing, punctuation, or syntax can make big substantive differences.

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Arizona Court Reverses Protection for Climate Scientists

Posted on June 22nd, 2016 by Lauren Kurtz

On June 14, an Arizona trial court ruled that the University of Arizona must turn over more than a decade of university climate scientists’ emails to the Energy & Environment Legal Institute (“E&E”), a group that, in its own words, “pepper[s] universities around the country” with open records requests as part of a mission of “free market environmentalism.”  This June 2016 decision is a complete reversal from a March 2015 decision by the same judge, as well as a serious departure from other court cases across the country protecting scientists’ research correspondence.

E&E – formerly named the American Tradition Institute (“ATI”) – has repeatedly used open records laws in attempts to obtain years of publicly funded scientists’ correspondence.  The group’s work has been described as “filing nuisance suits to disrupt important academic research” as part of its work to convince “the public to believe human-caused global warming is a scientific fraud.”  The group has been linked to the coal and oil industries, “major conservative players,” and “organizations opposing action on climate change.”

State and federal open records laws promote government transparency by allowing citizens to request copies of administrative records, but these powerful tools can also be misused:  the Union of Concerned Scientists has found that “open records requests are increasingly being used to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.”  Over years of protracted litigation, courts have often ruled for the protection of academic research in cases from California to West Virginia.  But even when plaintiffs lose, they can still succeed in “confus[ing] the public debate, and forc[ing] universities and scientists to spend hundreds of thousands of dollars defending themselves.”  Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” Read more »

Justin Gundlach
Climate Law Fellow

Heydinger case captionAs round after round has passed in the political and legal struggle at the federal level over regulating sources of greenhouse gas (GHG) emissions, states have rushed in to try to fill the void. Minnesota sought to do so in 2007 when it passed the Next Generation Energy Act. That Act defines the emissions footprint of Minnesota’s retail electricity market—including both in-state generation and imports from other states—and establishes several prohibitions to prevent that footprint from growing.

In North Dakota v. Heydinger, several entities that generate electricity in coal-fired facilities within and outside of Minnesota, and the state of North Dakota which is home to several such entities, challenged the Minnesota Act. A federal district court ruled in 2014 that Minnesota’s Act was unconstitutional for impermissibly regulating out-of-state commercial transactions. The state appealed that decision, and, on June 15, 2016, a three-judge panel of the Federal Court of Appeals for the Eighth Circuit upheld the district court’s decision—but not its reasoning. The judges’ differing opinions are discussed in more detail below the jump.

Minnesota has not been alone in trying to reduce the emissions intensity of its particular corner of the decidedly inter-state electricity sector. Nor is it alone in getting sued over its attempt. Similar suits have been brought in more than a dozen other states, including Colorado and California. Those suits tend to base their challenges to state-level policies on either the U.S. Constitution’s (dormant) Commerce Clause or its Supremacy Clause. The first inhibits states from regulating interstate commerce (even where the federal government has not done so). The second is the basis for preemption of state law by a conflicting federal statute. Crucially, the latter is treated by courts as a statutory question rather than a constitutional one, meaning that a court hearing both sorts of argument should ground its decision in the latter if possible, in accordance with the canon against making avoidable constitutional interpretations. Both types of argument featured in the Eighth Circuit’s decision in North Dakota v. Heydinger.

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A Remarkable Papal Conference: A Personal Report

Posted on June 10th, 2016 by Justin Gundlach

by Michael Gerrard
Faculty Director

ITN_Vatican Summit photo (caption)In January my Columbia colleague Jeffrey Sachs told me that the Pontifical Academy of Social Sciences (with which he had worked for several years) was organizing a conference at the Vatican of judges, prosecutors and legal scholars from around the world to discuss how the law can address the scourge of human trafficking, and that Pope Francis would attend. He asked my help in identifying some individuals who should be invited, and I was happy to help.

I was not certain that I would be able to go until I received a letter in April from the Academy’s Chancellor, Monsignor Marcelo Sanchez Sorondo, which began, “Following Pope Francis’ wish, it is my pleasure to invite you” to this meeting on June 3-4. Though the dates conflicted with another commitment, this was an invitation I could not decline, so I found a substitute for that and booked a room in the Crowne Plaza St. Peter’s, as recommended by the Vatican. I also found a web site with the protocol for addressing certain personages, including the Pope, the Queen of England, and various heads of state. (The Pope should be addressed as Your Holiness. Catholics should kiss his ring if it is offered; non-Catholics like me should simply shake his hand.)

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Total SATim Wang, Sabin Center Intern

Total S.A., the fourth largest oil and gas producer worldwide, has published a comprehensive plan explaining how the company intends to alter its business practices and energy holdings in order to be consistent with the International Energy Agency’s 2°C Scenario in the next twenty years. “Integrating Climate into our Strategy” is the first strategic plan published by a large fossil fuel corporation that seeks to achieve a concrete climate change mitigation goal. Total will focus on portfolio overhaul, technological innovation, and policy advocacy, as its three-pronged approach to helping the world keep cumulative emissions under 1000 gigatons of carbon dioxide equivalent from 2013 to 2050.

One of the company’s top priorities is to exit the coal business. Total already ceased its coal production, in August 2015, after selling its affiliate Total Coal South America, and plans to withdraw from coal marketing by the end of 2016. At the same time, the company will turn its focus towards increasing the proportion of natural gas in the mix, which already accounts for roughly half of its reserves and production. Total also confirms in this report that it does not conduct oil exploration or production in the Arctic ice pack, and that it has recently decreased its exposure to Canadian oil sands, as well.

Read more »

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