Keystone EISOn December 24, 2014, the Council on Environmental Quality (CEQ) released Revised Draft Guidance on how federal agencies should evaluate GHG emissions and the impacts of climate change when conducting reviews under the National Environmental Policy Act (NEPA).[1] The revised guidance is significantly more detailed than the draft guidance released by CEQ in February 2010, and unlike its predecessor, it applies to all proposed Federal agency actions, including land and resource management actions.

The guidance directs agencies to consider the potential effects of a proposed action on climate change, using projected GHG emissions as a proxy for those effects. Consistent with its earlier guidance, CEQ identifies a reference point of 25,000 metric tons of CO2-e annually as a threshold below which a quantitative analysis of GHG emissions is not recommended unless it can be easily accomplished. However, CEQ does not specify whether agencies should consider both direct and indirect emissions when applying this benchmark.

The guidance also directs agencies to consider the implications of climate change impacts on the proposed action, including potential adverse environmental effects that could result from drought or sea level rise. According to CEQ, such considerations are squarely within the realm of NEPA and will enable the selection of smarter, more resilient actions. This component of CEQ’s guidance accords with the Sabin Center’s recommendations on reverse environmental impact assessment, as outlined in some of our recent publications and in comments submitted to the Federal Energy Regulatory Commission (FERC).

The key elements of the Revised Draft Guidance are summarized after the jump. Note: The Revised Draft Guidance will be open for a 60-day public review and comment period, with comments due by February 23, 2015. Comments can be submitted online at the federal registrar website. If you would like to learn more about this issue, the National Association of Environmental Professionals (NAEP) is hosting a webinar on Wednesday, January 28 at 2:00 pm ET.  The speakers will include Horst Greczmiel of CEQ, Cheryl Laskowski of Atkins North America, and Sabin Center Director Michael Gerrard.

Read more »

January 2015 Update to Climate Litigation Charts

Posted on January 21st, 2015 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.


 Additions to the U.S. Climate Case Chart since Update #69


California Appellate Court Ruled That Environmental Review of Landfill Expansion Was Adequate. The California Court of Appeal reversed a trial court and ruled that an environmental impact report (EIR) for a proposed landfill expansion was adequate, including the EIR’s consideration of climate change-related impacts. The case concerned the 420-acre Redwood Landfill in Marin County, which accepts most of the county’s solid waste. The appellate court found that the EIR did not improperly defer mitigation of projected sea-level rise. The court said that, given uncertainty regarding the timing and extent of sea-level rise, the measures required by the EIR were “specific enough” to address potential future impacts. The appellate court also concluded that the EIR sufficiently analyzed cumulative greenhouse gas emissions. The court said that the California Environmental Quality Act did not mandate that the EIR analyze all methane-producing landfills or the cumulative impacts of all “related projects” on greenhouse gas emissions. In addition, the appellate court found that substantial evidence supported methods used to estimate landfill gas emissions and that the EIR properly offset an increase in greenhouse gas emissions with a reduction of greenhouse gas emissions due to the use of engines fired by landfill gas.  No Wetlands Landfill Expansion v. County of Marin, No. A137459 (Cal. Ct. App. Dec. 12, 2014): added to the “State NEPAs” slide.

Read more »

Jennifer M. Klein, Esq.
Associate Director & Fellow

MiamisummershowerSea level rise is an “inevitable consequence” of global warming and requires innovative capital planning, according to a new Report by the Miami-Dade Sea Level Rise Task Force. The Task Force will present its recommendations to the Miami-Date County Commission on January 21, 2015. Southeast Florida is already vulnerable to flooding, severe rainfall, and storm surge; according to the Task Force, sea level rise and other effects of climate change will exacerbate these events, eventually causing some low-lying areas in Southeast Florida to be abandoned or re-purposed.

Read more »

Lessons from Lima

Posted on December 19th, 2014 by Jennifer Klein

Associate Directors Jennifer Klein and Jessica Wentz

logoWorking into the early morning on Sunday, negotiators from almost 200 nations finally reached an agreement after the two-week United Nations Conference of the Parties (COP) in Lima, Peru. UN officials were scheduled to release the agreement at noon on Friday. However, the negotiations ran past the deadline, and delegates spent the final 36 hours scrambling to finalize the draft document which will form the framework for a global accord to be signed next year in Paris.

The Lima Accord provides that countries will submit plans indicating their emissions mitigation targets and the steps they will take, including implementing new domestic laws, to reach these targets. These mitigation plans, known in UN parlance as Intended Nationally Determined Contributions (INDCs), are to be submitted by the first quarter of 2015 for “those Parties ready to do so.” By November 1, 2015, the UNFCCC will prepare a report on the gap between the Parties’ aggregate pledges and the emissions pathway consistent with avoiding severe climate change impacts.

Read more »

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. The additions to the charts from August to December 2014 are included below, organized by their case chart category. 

U.S. Climate Litigation Chart


Non-U.S. climate Litigation Chart

Read more »

81gM5SUia7LA comprehensive 602-page survey of state climate change laws has been posted as a supplement to GLOBAL CLIMATE CHANGE AND U.S. LAW, 2d ed. (Michael B. Gerrard and Jody Freeman, editors).

The survey was prepared by Kelly Nishikawa, Benjamin Lowenthal and other students at Pace Law School’s Global Center for Environmental Legal Studies, under the oversight of the Associate Director of Environmental Law Programs, Laura Jensen. This very valuable reference document accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014), available online at the ABA webstore. It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels and renewable energy legislation (such as tax credits for hybrid vehicles) are very similar from state to state; some laws have a short duration and therefore may not be codified (such as temporary tax credits); energy legislation is being enacted at an increasing pace. As a result, not all energy efficiency, alternative fuels and renewable energy legislation and other activity in every state are included in this compilation.

A PDF of the supplement is available at the ABA Website.

Italian Scientists’ Convictions for Not Predicting Earthquake Reversed

In the early hours of April 6, 2009, a magnitude 6.3 earthquake struck central Italy, with the epicenter near the medieval city of L’Aquila.  The 20-second earthquake left over 300 people dead, over 1,500 injured, and over 65,000 homeless in L’Aquila and 45 surrounding towns. [1] [2]

In a 2012 decision widely condemned by the international scientific community, an Italian judge ruled that six scientists and one government official had committed manslaughter by failing to inform local residents of the risks prior to the earthquake.  The judge sentenced the seven defendants to six years in prison, permanently barred them from public service, and ordered them to pay court costs and damages totaling roughly $10.2 million.[3]  Last month, an appellate court overturned the six scientists’ convictions; it upheld the government official’s conviction, although it reduced his sentence to two years on “suspension,” meaning he only will serve time if he commits another crime.[4]

Some early media reports claimed that science itself had been on trial but the initial ruling, while still disturbing to many observers, was a bit more complicated:  The trial judge (Italy does not generally use juries) found that the seven defendants were criminally negligent because of their participation in a government meeting on seismic risks the week before the earthquake struck.[5]  Frequent tremors had been occurring near L’Aquila for months, and the scientists advised the government official and others that a large earthquake was possible but unlikely.  Separately, the government official promulgated a message that there was “no danger” of an earthquake and he theorized the tremors even indicated “it’s a favorable situation because of the continuous discharge of energy” (a claim most seismologists dispute).[6]

The prosecution alleged that the defendants had failed to fulfill their duty to supply residents “all the information available to the scientific community on the seismic activity of the last few weeks” before the earthquake.[7]  The trial judge agreed, finding that the defendants had directly contributed to the deaths of at least 29 specific people who had stayed in their homes as a result of the government official’s message but normally would have evacuated.[8]  The defendants appealed, and under Italian law, they were free during the appeal process.[9]

The appellate court reversed the scientists’ convictions, and shortened the government official’s conviction.  Although lessened, the official’s conviction remained because of his role in reassuring the public with claims that were contradicted by science, which included a recommendation that locals sit back and enjoy a glass of wine instead of worrying about earthquakes.[10]  While the trial judge found that the scientists had implicitly supported the official’s mistaken statements – or had not done enough to counteract them – and were therefore equally guilty, the appellate court announced that any evidence of crimes by the scientists “does not exist.”[11]

Scientists the world over have expressed relief, and the attorney for one scientist defendant said his client could never understand why he was “put on trial for having expressed a scientific opinion.”[12]  The American Geophysical Union, an international association of geophysicists, released a statement that the “acquittal is an important step in sanctioning the role scientists play in advising governments and communicating the results of their research to the public.  Scientists must be able to exchange data and information in an unfettered manner and make good-faith efforts to present the results of their research without fear of prosecution.”[13]  However, many L’Aquila residents were upset with the appellate court’s decision, shouting “Shame! Shame!” when the decision was read.[14]

A full written opinion by the appellate court is due to be filed in February 2015.[15]

Even after the appellate court files its full written opinion, this story may not be over.  The prosecutor or the victims’ families may choose to appeal once more, to Italy’s highest court (the Court of Cassation).  The prosecutor may also choose to prosecute the government official’s boss, who was recorded as referring to the seismic risk meeting as a “media move” to calm the public.[16]


Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund


















Lima Report: Thursday, December 4, 2014 & Friday, December 5, 2014

Posted on December 5th, 2014 by Jennifer Klein

WRI on the development of a 2015 agreement

Jennifer M. Klein, Esq., Associate Director & Fellow
Meredith Wilensky, Esq., 2013-2014 Associate Director & Fellow

During the past two days, negotiators have continued to work their way through draft text. When observing negotiations, it quickly becomes clear that the COP has its own distinct vernacular, with commonplace terms taking on new meaning. Here, we define a few of the most prevalent terms demonstrating key issues underlying the negotiations.

Adequacy – This term refers to the ability of any agreement to achieve the COP’s ultimate objective to stabilize atmospheric GHG levels so as to prevent dangerous anthropogenic interference with the climate system. Parties have repeatedly noted that for the 2015 agreement to be “adequate,” countries’ Intended Nationally Determined Contributions must reduce GHG emissions enough to stay within the global carbon budget. Dr. Pachauri emphasized during the opening session on Monday that, according to the IPCCC’s Fifth Assessment Report, we have already used 65% of this budget.

Ambition – This term refers to the collective will of the Parties to cut global GHG emissions enough to achieve adequacy. Throughout the Lima negotiations and side events, parties have worked to raise ambition for the 2015 agreement by highlighting the need to commit to deeper emissions cuts. Read more »

Lima Report: Wednesday, December 3, 2014

Posted on December 4th, 2014 by Jennifer Klein

Jennifer M. Klein, Esq., Associate Director & Fellow
Meredith Wilensky, Esq., 2013-2014 Associate Director & Fellow

Source: UNFCCC

     Source: UNFCCC

On Day 3 of COP20, the ADP continued detailed discussions of the draft negotiating text in breakout sessions. The morning sessions addressed portions of the text by topic, including adaptation and finance. Tensions built in the afternoon session surrounding disagreement over the negotiation process.

A few themes emerged in the ADP session focused on adaptation. Discussions highlighted questions about how much reporting and international review is appropriate to monitor adaptation efforts. Parties also discussed the text’s inclusion of a long-term adaptation goal, with many challenging the goal’s link to a temperature limit. Many parties weighed in on whether loss and damage should be included under adaptation or addressed as a separate component of a 2015 agreement. A number of issues also arose with respect to developing countries, including concerns about the burdens of additional obligations and the lack of differentiation between developed and developing nations in the draft text. Read more »

Shipping emissions issues make an appearance at Lima negotiations

Posted on December 3rd, 2014 by Jennifer Klein

Meredith Wilensky, Esq.
2013-2014 Fellow

contianer ship NOAASCCCL has been on the lookout at the Lima climate negotiations for developments related to reducing GHG emissions from international shipping. The Kyoto Protocol excluded shipping emissions from reductions targets.[1] Instead, the Protocol directed countries to work through the International Maritime Organization (IMO), the United Nations’ specialized agency on shipping, to limit emissions from this sector.

Efforts by the IMO to address shipping emissions have been underwhelming. The agency has developed two emissions reductions measures: the Energy Efficiency Design Index (EEDI) is a technical measure that sets mandatory efficiency requirements for new ships, and the Ship Energy Efficiency Management Plan (SEEMP) is an operational management tool to improve efficiency primarily through fleet management. While these measures will improve overall shipping efficiency, the IMO has acknowledged that they will be insufficient to prevent a future rise in emissions from the sector. The limited effect of the measures is due in part to their focus on new ships. Existing ships have a long life expectancy and will be responsible for the majority of emissions from the sector in coming decades. The IMO’s unambitious measures inspired SCCCL’s white paper published earlier this year addressing state authority to regulate shipping emissions beyond international standards. Read more »

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