Advancing Consistency in NEPA Disclosures on Climate Change

Posted on March 25th, 2015 by Jessica Wentz

EIS Power PlantLast December, the Council on Environmental Quality (CEQ) issued revised draft guidance on the consideration of greenhouse gas (GHG) emissions and the effects of climate change in National Environmental Policy Act (NEPA) reviews. As noted in a previous blog post, the proposed guidance directs federal agencies to consider: (1) the potential effects of a proposed action on climate change as indicated by its GHG emissions, and (2) the implications of climate change for the environmental effects of a proposed action.

The Sabin Center recently submitted comments in support of the proposed guidance. In our comments, we describe how the proposed guidance comports with both NEPA and national climate policy. We also explain why the proposed guidance is necessary to promote consistency in NEPA disclosures and ensure that federal agencies are accountable for the full range of environmental consequences associated with their decision-making. Finally, we offer two recommendations on how CEQ could modify the final guidance to further clarify agency obligations under NEPA.

We are pleased to note that the proposed guidance comports with several of the Sabin Center’s recommendations for improving NEPA disclosures on climate change. In particular, the guidance:

  • Advances consistency in NEPA disclosures by instructing agencies on how and when they should address climate-related considerations. The Sabin Center conducted a survey of 227 federal EISs prepared between January 2009 and December 2011, which revealed “disparate treatment of climate change impacts in federal EISs, with significant variation correlating with state, agency and project type.” We are conducting a follow-up assessment of EISs prepared between 2012 and 2014, and our preliminary findings suggest that agency treatment of climate change remains quite varied in the absence of binding guidance on this topic.


  • Instructs agencies to consider the impacts of climate change when assessing the current and expected future state of the affected environment and when analyzing the impacts of the proposed action. The Sabin Center has submitted letters to federal agencies requesting that they conduct this analysis (sometimes referred to as “reverse environmental impact analysis”) during the NEPA review of federal infrastructure projects. We were pleased to report that the Federal Energy Regulatory Commission appears to have acted on these recommendations. Our director and affiliates have also written several articles on this topic, which are available for download at our publications page.


  • Instructs agencies to assess upstream and downstream emissions from activities that have a “reasonably close causal relationship” to the federal action. In our 2009-2011 survey, we found that agencies often failed to assess upstream and downstream emissions, despite a regulatory requirement that agencies consider impacts from “connected actions”, including any actions that: (i) automatically trigger other actions which may require environmental impact statements, (ii) cannot or will not proceed unless other actions are taken previously or simultaneously, or (ii) are interdependent parts of a larger action and depend on the larger action for their jurisdiction. 40 C.F.R. § 1508.25(a)(1). In 2013, we published a white paper on NEPA and Downstream GHG Emissions of U.S. Coal Exports, which explained why downstream events, such as the combustion of exported coal, fall within the scope of NEPA review.


Associate Director Jessica Wentz also recently wrote an article discussing the evolution of CEQ’s proposed guidance and summarizing the key elements of the latest proposal. The article will be featured in the April 2015 issue of Environmental Law in New York.


The Constitutional foundation for the Clean Power Plan

Posted on March 20th, 2015 by Jessica Wentz

By Michael B. Gerrardpower-lines-1-1426298-m

As members of Congress wisely examine the legal basis for the Clean Power Plan, they should feel confident that the Environmental Protection Agency is acting with a solid constitutional foundation.

At a Tuesday hearing of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce, two eminent legal scholars engaged in an intellectual duel over the plan– EPA’s proposed regulations on fossil fuel-fired power plants.  Laurence H. Tribe, a professor at Harvard Law School, argued that the EPA proposal is unconstitutional and contrary to the Clean Air Act.  Richard Revesz, a professor and Dean Emeritus of New York University Law School, took the opposite position, asserting EPA is acting constitutionally and well within its authority under the Clean Air Act. Putting aside Professor Tribe’s well-reported retention by Peabody Energy, let’s examine these arguments on legal merits alone.

First, in predicting the likely outcome of the inevitable litigation over the rules, it’s important to emphasize that the Supreme Court has upheld EPA’s powers under the Clean Air Act to regulate greenhouse gases three times.

In 2007 the Court declared that greenhouse gases are air pollutants and are subject to EPA’s powers under the statute.  In 2011, the Court rejected an attempt to get the federal courts to order a reduction in the emissions from fossil fuel plants, finding that such restrictions are exclusively EPA’s job.  The Court relied on exactly the same provision of the Clean Air Act (Section 111(d)) that EPA is now using.

And in 2014 the more than 100 lawsuits challenging EPA’s prior round of greenhouse gas regulations culminated in a Supreme Court decision that left them all standing, except for one provision that applied to only three percent of stationary source emissions.

In all of these cases, the Supreme Court (like all other courts to consider the issue) cast aside vigorous objections to the scientific findings that human activities are contributing to climate change, and reaffirmed EPA’s authority.

Tribe did not contest the science, instead arguing EPA is usurping the power of the states, requiring them to adopt onerous rules that would disrupt their energy systems.  But EPA’s proposal would afford maximum flexibility to the states in meeting their share of emissions reductions.  These goals can be met with energy efficiency, clean fuels, renewable energy sources, nuclear power, or other methods chosen by the states, and in whatever proportions and whatever schedules they want, provided it adds up to enough to meet the standards.

Several states (including some that rely mostly on coal) have already indicated that they can readily meet these standards under their existing plans; for some other states it will be more challenging, but doable.  Only if a state fails to send EPA a satisfactory plan – or any plan at all – will EPA step in with its own plan.  The flexibility given the states should shield the plan from a successful attack under the Tenth Amendment.

The other major objection raised by Tribe stems from a clerical mistake made by staff when Congress amended the Clean Air Act in 1990. The final bills passed by the Senate and the House were slightly different (which isn’t supposed to happen).  Under one version, the Clean Power Plan is valid; under the other it falls. Which should prevail is the subject of a lot of fine legal argumentation (as seen in the opposing views from the two law professors), but ultimately it will be for the Supreme Court to decide.

Both agree that new legislation would be the best way to address the climate problem.  However, Congress has not passed a major environmental law since 1990, and given the current partisan divisions, there is no telling when it will. Thus, as the bulk of scientific opinion acknowledges that climate change is a major threat, it is incumbent on those who wish to shut down EPA’s efforts, either in Congress or the courts, to suggest an alternative that works under existing statutes.

The constitutional soundness of the Clean Power Plan is clear.   Those who oppose it should come up with something better.


Michael Gerrard is Andrew Sabin Professor of Professional Practice and Director of the Sabin Center for Climate Change Law at Columbia Law School.

This article was originally posted on The Hill on March 19, 2015.


Sabin Center Creates Database of Climate Change Laws of the World

Posted on March 10th, 2015 by Jennifer Klein

TPPThe Columbia Law School Sabin Center for Climate Change Law has created a comprehensive database with links to climate laws and policies around the globe. The collection currently includes information for more than 100 countries, organized by continent.

Researchers at the Sabin Center developed the database as a new resource for the climate change law and policy community and have expanded the project due to demand from users of its website,, one of the world’s leading reference sources for climate change law. The center will continue adding new countries over the next six months and will regularly update the resource as new laws are enacted. Read more »

Attacks on Canadian Climate Scientist Ruled to be Defamation

Posted on March 9th, 2015 by Lauren Kurtz

On February 5, a trial court in British Columbia awarded $50,000 CAD (roughly $40,000 USD in current exchange rates) to distinguished climate scientist Dr. Andrew Weaver, finding that a collection of articles had defamed him.[1]  The judgment is controlling authority only within British Columbia, but it is still significant:  the decision makes clear that smear campaigns against scientists based on untruthful and fraudulent claims are not legally defensible, at least under Canadian law.

Dr. Weaver brought the lawsuit after Canada’s National Post refused to retract the articles that, in his own words, “attributed to me statements I never made, accused me of things I never did, and attacked me for views I never held.”[2]  In particular, four articles published in the National Post in 2009 and 2010 claimed that Dr. Weaver fabricated stories to distract from the so-called “Climategate”[3] incident, including that he had concocted tales that fossil-fuel industry agents were behind break-ins in his faculty office; that he had manipulated and distorted scientific data to mislead the public and promote a public agenda; that he had corruptly received government funding to further his biased research; and that he was generally unscientific and incompetent, among other accusations.  The articles also referred to Dr. Weaver variously as an “alarmist,” “sensationalist,” and “Canada’s warmest spinner-in-chief” who “cherry-picked data” and was an “insider” for the Intergovernmental Panel on Climate Change (IPCC), which itself was accused of “cooking the books.”

The court found that the articles went beyond the “debate [of] the merits of a theory” and acted instead to “impugn a person’s character with innuendos concerning honesty, ethics and competence.”  The articles “implie[d] a serious defect in character that impacts Dr. Weaver’s academic and professional world” and the court noted that “Dr. Weaver was deeply affected by what he perceived as a barrage of articles impugning his integrity and academic reputation.”

The defendants (the National Post, its publisher, and the relevant authors) argued that these articles were protected by the defense of fair comment which, under Canadian law, shields even defamatory statements if they are made on a matter of public interest, based on fact and made honestly, and made without malice.  The court acknowledged that these articles were on matters of public interest, and “[w]hile some of these references may be characterized as simply derogatory. . . the factual foundation to the four articles was distorted or false” in numerous ways.  For example, the court found that while Dr. Weaver had made comments regarding the fossil fuel industry in the context of an interview regarding the “war for public opinion,” he had never linked the fossil fuel industry to office break-ins at the University of Victoria, as several of the articles had claimed.  The articles also falsely claimed that Dr. Weaver was trying to dissociate himself from the IPCC, and misquoted Dr. Weaver to falsely claim that he incorrectly conflated individual weather events with global warming trends.  Ultimately, the court found that the “selection of the words, the tone and misstatement of central facts distorted Dr. Weaver’s words such that the articles were defamatory and not protected by the fair comment defense.”

These articles were widely published, including being “reproduced many times over the Internet,” from blogs to electronic databases, and each article contained an “invitation to email the article to a friend.”  In addition, the publication of these articles followed several incidents where Dr. Weaver had been misquoted in the National Post years earlier, and where he had previously worked with two of the defendants to correct the misinformation.  Thus, this time around, these defendants specifically “knew about Dr. Weaver’s cautious views. . . and ignored them in the pertinent articles.”  And in contrast with the earlier misquotes where Dr. Weaver had succeeded in getting the National Post to publish corrections, the defendants had also refused to remove the offending articles or publish any retractions or apologies, despite Dr. Weaver’s pre-litigation efforts to correct the record here.

The court concluded that “the defamation in this case was serious.”  Quoting from the Supreme Court of Canada, the court wrote that free speech did not permit individuals to become “regrettable but unavoidable road kill on the highway of public controversy.”  In addition to awarding Dr. Weaver $50,000 in damages from all defendants, jointly and severally, the court directed defendants to remove the articles from any websites over which they had control, to expressly withdraw any consent for third party publications and require these third parties to remove the articles, and to publish a complete retraction of the defamatory material.  The National Post is considering whether or not to appeal the decision.[4]

The court did make clear to distinguish the defamatory content in the articles in question from non-defamatory commentary regarding any debate over climate change:  “[w]hether or not a particular theory is ‘debunked’ is regularly debated in the scientific community.  It would, in my view, impede the necessary debate to find such commentary defamatory in the circumstances of this case.”  The court also found that the defendants could not be held liable for defamatory reader comments because they had removed them within a day or two of being alerted to the offensive comments and “that is all the defendants could realistically do in the circumstances.”

While this decision is not controlling authority outside of British Columbia, as mentioned above, it may prove to be influential in a similar defamation case that is currently working its way through the U.S. courts.[5]  In 2012, Dr. Michael Mann filed a defamation suit, Mann v. National Review, Inc., over a National Review Online blog post by Mark Steyn.  The post claimed Dr. Mann’s work was “fraudulent” and, using quotes from another blog post, called Dr. Mann – a climate scientist at Penn State University – “the Jerry Sandusky of climate science” because “he has molested and tortured data.”[6]

In January 2014, the D.C. trial court in the Mann case ruled that “[o]pinions and rhetorical hyperbole are protected speech under the First Amendment,” but “[a]ccusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth” are defamatory if proven to be false.[7]  The court denied the defendants’ motion to dismiss, allowing the case to move forward towards a trial.  Three of the defendants have appealed this decision.[8]

Protecting against defamation while also protecting free speech rights is a complex balance, and it remains to be seen if the D.C. trial court will go the same way as the decision in Weaver.  But either way, widely accusing peer-reviewed work to be products of fraud and comparing climate scientists to child molesters is, unfortunately, part of a larger trend of attacks on scientists.[9]  In the words of Dr. Mann, these attacks seek “to dismiss, obscure, and misrepresent well-established science and its implications” as well as “create an atmosphere of intimidation.”[10]  For more information on attacks on scientists, please visit


Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which previously assisted with the representation of Dr. Mann in a separate dispute over open records requests,[11] although it is not involved in Dr. Mann’s defamation litigation described above.






[5] It is also generally harder to prove defamation in the United States than in Canada:






[11] For more on that case, see here:

March 2015 Update to Climate Litigation Charts

Posted on March 3rd, 2015 by Jennifer Klein

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 Climate Case Chart since Update #71.



California Appellate Court Upheld AB 32’s Offset Program

The California Court of Appeal ruled that the offset component of California’s cap-and-trade program for greenhouse gas emissions did not violate the California Global Warming Solutions Act of 2006 (AB 32). Two environmental groups had charged that the offset program did not satisfy AB 32’s additionality requirements, and in particular that the California Air Resources Board (CARB) had not ensured that offset projects’ emission reductions would be “in addition to … any other greenhouse gas emission reduction that otherwise would occur.” The court was not persuaded by “the rather pedantic position” that AB 32 required “unequivocal proof” that an offset project’s emission reduction would not otherwise occur. The court called this interpretation “unworkable” and said that such a requirement would not account “for the fact that is virtually impossible to know what otherwise would have occurred in most cases.” The appellate court instead concluded that AB 32 delegated rulemaking authority to CARB to establish a “workable method of ensuring additionality” and that CARB had not acted arbitrarily or capriciously in formulating the offset protocols. The court also ruled that AB 32 authorized CARB to grant early action credits for offset projects previously undertaken pursuant to Carbon Reserve protocols. Our Children’s Earth Foundation v. California Air Resources Board, No. A138830 (Cal. Ct. App. Feb. 23, 2015): added to the “Stop Government Action/Other Statutes” slide. Read more »

windmillThe date is approaching for EPA to finalize its rules for controlling carbon dioxide emissions from existing power plants, and states are contemplating their responses to those rules. A number of commentators have recommended that states “just say no” to EPA and refuse to prepare state plans complying with the rules. Some states are considering bills and a few have enacted laws that would make it difficult for their state environmental agencies to prepare responses that EPA could accept. In turn, EPA has announced it will release a “federal implementation plan” (FIP) for states that fail to submit legally adequate plans.

Daniel P. Selmi, a professor of law at Loyola Law School, Los Angeles, and a visiting scholar at the Sabin Center for Climate Change Law, has written an essay arguing that states should think carefully before “saying no” and refusing to submit a complying plan to EPA. The essay discusses five consequences of not participating: (1) EPA must impose FIPS that will probably focus on power plants, and states will cede regulatory control to the federal government; (2) Ratepayers likely will fare worse under a FIP than under a state-crafted plan; (3) Temporizing now and deciding to prepare a compliance plan later will involve delays in extracting the state from the FIP; (4) Late compliers may lose important opportunities for efficient compliance and informational benefits that accrue from participating at the outset; and (5) “saying no” to avoid a predicted political backlash is unnecessary. Finally, the essay argues that, because the need to respond to climate change will not disappear, states are better off beginning now to plan their transition to a power system with reduced carbon emissions.

Summer 2015 Internships

Posted on March 2nd, 2015 by Jennifer Klein

Newly posted summer internship positions

Law Students

The Sabin Center for Climate Change Law is hiring for its 2015 summer internship program.  Legal interns at SCCCL work with Center Director, Professor Michael Gerrard, Executive Director Michael Burger, and current fellows on a wide range of cutting-edge climate change, energy, and environmental law topics.  The Center does both domestic and international work on mitigation and adaptation.  Past summer legal interns have drafted a white paper to assist regulators in the design of carbon cap-and-trade programs, contributed sections of white papers on state energy efficiency laws and state disaster preparedness plans, advocated to improve the New York electricity grid’s ability to withstand future storms like Hurricane Sandy, and researched legal issues related to sea level rise in the Marshall Islands.  Internships are full time for 8-10 weeks.  Although SCCCL cannot provide direct funding for summer legal internships, SCCCL interns are able to qualify for CLS non-profit summer funding. Non-CLS students may also apply for the summer internship program.

To apply, please send a copy of your resume and an unofficial transcript to Executive Director Michael Burger,

Undergraduate and Graduate Students

The Sabin Center for Climate Change Law at Columbia Law School is currently seeking a few exceptional undergraduate and/or masters students to serve as interns for summer 2015.  Undergraduate & masters-level interns at SCCCL work with the Center’s faculty director, Prof. Michael Gerrard, Executive Director Michael Burger, and current fellows on a wide range of cutting-edge climate change, energy, and environmental policy issues. The Center does both domestic and international work on mitigation and adaptation. Students will be assigned to projects that are policy oriented, or may work jointly with law student interns on those projects with a legal component, and should receive broad exposure to the field of climate change law.  Students with some background in environmental policy, energy policy and/or sustainable development are particularly encouraged to apply.  Internships are full time for 8-10 weeks.  Unfortunately, SCCCL is not able to provide funding for summer internships, but Columbia students may apply for funding through the Earth Institute’s summer grants program and we are happy to support applications for outside funding.

To apply, please send a copy of your resume to Jessica Wentz,

Global litigationThe first comprehensive survey  ever conducted of climate change litigation outside the United States has been released by Columbia Law School’s Sabin Center for Climate Change Law. It finds that there is far more climate litigation in the United States than in the rest of the world combined, and that the country with the second largest number of cases is Australia. The survey also finds that unlike the U.S., which has experienced substantial litigation intended to shape the development of climate regulations, non-U.S. climate-related cases have focused on specific projects and implementation of specific policies.

In 2012, Professor David Markell of Florida State University College of Law and Professor J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. That study largely drew on the SCCCL’s and Arnold and Porter’s U.S. Climate Change Litigation Chart. Based on the data compiled in the SCCCL’s Non-U.S. Climate Change Litigation Chart, the Center’s new publication takes a similar approach, casting light on the “who, what, why, and how” of non-U.S. climate change litigation and investigating the role of the courts in the development of climate change policy outside of the United States.

The publication, entitled Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation, identifies 173 climate change cases decided through 2013 outside the U.S., compared to the over 420 U.S. cases identified in the U.S. chart during that time period. Non-U.S. climate change litigation is almost entirely concentrated in five jurisdictions: Australia, New Zealand, the European Union, Spain and the United Kingdom.

The nature of these suits varies widely across jurisdictions, reflecting each jurisdiction’s unique legislative and regulatory frameworks, energy portfolios, and legal systems. Generally, however, non-U.S. climate change cases have mostly been tactical suits aimed at specific projects or details regarding implementation of existing climate policies, especially emissions trading systems. This is different from the U.S., which has seen a considerable amount of strategic litigation intended to spur and halt climate regulations.

Read more »

 1 comment  
La Faute-sur-mer after storm Xynthia (2010).

       La Faute-sur-mer after storm Xynthia (2010).

Jessica Anne Wentz
Associate Director and Postdoctoral Fellow

In the early morning of February 28, 2010, storm Xynthia hit the French Atlantic coast, overwhelming coastal defenses and flooding over 50,000 hectares of land. The storm caused over one billion euros of damage and 47 fatalities in the Vendée Department of France.[1] Over half of these fatalities occurred in the neighboring villages of La Faute-sur-Mer and L’Aiguillon-sur-Mer, where rapidly rising flood waters trapped hundreds of residents in their homes and killed 29 people. The next day, French President Nicolas Sarkozy visited the villages and announced plans to investigate the causes of the disaster: “We have to find out how families in France in the 21st century can be surprised in their sleep and drowned in their own houses,” Sarkozy said, “we have to shed light as urgently as possible on this unacceptable and incomprehensible drama.”[2]

The investigation uncovered a number of alarming details about the physical vulnerability of France’s coastal infrastructure, the inadequacies of the country’s spatial planning policies, and serious problems with national emergency notification and response procedures. But the most egregious findings related to the conduct of local public officials who encouraged residential development in the areas that were hit hardest by the flood. French authorities discovered evidence that the mayor of La Faute-sur-Mer, René Marratier, and his deputy, Françoise Babin, had overseen the construction of single-story homes in an area known as “the deadly bowl” due to extreme flood risk, and that they had failed to take adequate precautions to protect the houses from flooding or warn the residents of the flood risk.[3] In addition, the mayor and his staff failed to issue adequate warnings or evacuation orders when storm Xynthia made landfall. The investigating authorities also found evidence of negligent and wrongful conduct by Françoise Babin’s son, Philippe Babin, a real estate agent who was responsible for maintaining and monitoring the local dike, and Patrick Maslin, a construction company manager who also served as a municipal counselor. All four individuals were charged with manslaughter for their contribution to the drowning deaths in La Faute-sur-Mer and L’Aiguillon-sur-Mer that night.

Last December, the criminal court of Sables d’Olonne reached a verdict on the charges against René Marratier, Françoise Babin and Philippe Babin. All three defendants were convicted of manslaughter. The court found that the Mayor and his assistant were fully aware of the flood risks but had deliberately concealed these to avoid hindering real estate development in the area, thus breaching their “duty to protect and safeguard the population.”[4] The court also found that Marratier had intentionally obstructed the implementation of a Flood Risks Prevention Plan for this same reason. Finally, the court noted that the defendants had “unacceptable personal motives” for issuing the permits, since they had personally profited from the real estate boom. However, the case was ultimately decided on a theory of negligence, not criminal intent. Marratier was sentenced to 4 years in prison and Françoise Babin was sentenced to 2 years. The third defendant, Philippe Babin, received an 18-month sentence for failing to maintain and monitor the dikes.

Read more »

 1 comment  

Mark Bond
Columbia Law School, Class of 2015

In 2011, governments around the world committed to deliver a new, universal, and binding greenhouse gas (GHG) reduction agreement for the period beyond 2020 by 2015. This agreement is to be adopted this December at the twenty-first Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) in Paris, France.  The credibility and overall success of the so-called ‘Paris Agreement’ is tied to whether the United States, as one of the planet’s foremost emitters of GHGs, enters into it. President Obama has clearly signaled his intention to do so. But, given the politics of climate change in the United States, it is almost certain that the Senate will not ratify the agreement. This will inevitably lead some to question the agreement’s constitutional basis and legal effect.

The traditional view is that under Article II of the United States Constitution two-thirds of the Senate must provide their backing to allow any international agreement to bind the United States into a course of action. But conventional alternatives to Article II ratification do exist. As the Supreme Court noted in United States v. Belmont, there are “many such [international] compacts, of which a protocol, a modus vivendi, a postal convention, and agreements … are illustrations,” that “do not require the participation of the Senate.”[1] Such internationally binding agreements are not uncommon; in fact, they are five times more prevalent than agreements entered into through the Article II process.[2] Read more »

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