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By Romany Webb

Despite scientists’ dire warnings about the catastrophic impacts of climate change, the greenhouse gases that cause it continue to be emitted in substantial amounts. There is no question that deep, across the board cuts in greenhouse gas emissions are essential, but many scientists now agree that simply cutting future emissions will not be enough. It will also be necessary to remove previously-emitted greenhouse gases from the atmosphere. This could be achieved in a number of ways, including through enhanced weathering, which aims to accelerate natural processes whereby carbon dioxide reacts with silicate-rich rocks. While enhanced weathering has been the subject of much scientific research in recent years, it has received little attention from the legal community. A new Sabin Center white paper, published online today, provides the first comprehensive analysis of legal issues associated with the performance of enhanced weathering on land and in the oceans.

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Pipeline Decisions Do Not Spell Doom for Transmission


Posted on September 15th, 2020 by grennanmilliken

                   Wind farm (Source: Z22)

By Michael Burger and Hillary Aidun

Last week the Sabin Center and the American Bar Association held an event on addressing landowner concerns in renewable energy siting. Wind and solar farms often spark siting battles between local residents who welcome renewable energy projects and their neighbors who are concerned about visual or other impacts. But renewable generation is not sufficient to decarbonize the electric sector; infrastructure that delivers clean electricity to consumers is also critical. (The Sabin Center’s Renewable Energy Legal Defense Initiative provides pro bono legal counsel to community members who support renewable energy projects.) 

Transmission lines are, like generation facilities, often held up by litigation. Following a slew of recent cases scuttling or hamstringing new oil and gas pipelines, some have commented that it may now be even harder to develop transmission capacity for renewable energy. However, as explained below, siting decisions for pipelines and transmission lines are governed by different laws, and while both are subject to environmental review, their environmental impacts are not comparable. The recent pipeline decisions turned mostly on water quality concerns that are specific to oil and gas projects. Power lines present their own issues that need to be addressed, to be sure, but they are unlikely to be impacted by the recent spate of pipeline cases.

Three Regulatory Regimes

Natural gas, oil, and electricity transmission are each subject to distinct regulatory schemes. Construction and operation of an interstate natural gas pipeline requires a certificate of public convenience and necessity from the Federal Energy Regulation Commission (“FERC”) under Section 7 of the Natural Gas Act. Local natural gas distribution lines—which connect consumers to interstate pipelines—are owned and operated by local distribution companies, which are typically regulated by state public utility commissions. In contrast to the natural gas permitting scheme, no federal law provides a specific approval process for siting oil pipelines. Depending on the state, a pipeline company may need the state utility commission, governor, or legislature to approve a proposed route; interstate pipelines may require approvals from multiple states. However, both natural gas and oil pipelines that cross the border to Canada or Mexico require a Presidential permit. Additionally, both types of pipelines need approval from a number of federal agencies depending on their routes and potential impacts. For example, a project that may discharge dredged or fill materials into waters of the United States, or that crosses navigable waters, requires a permit from the U.S. Army Corps of Engineers (“the Corps”); a pipeline that traverses public lands needs a right-of-way from the Bureau of Land Management, U.S. Forest Service, or other agency with jurisdiction over the land. Before a federal agency can issue such a permit it must comply with the National Environmental Policy Act (“NEPA”), issuing either an environmental impact statement or a determination that a full review is not needed.

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Korey Silverman-Roati Joins the Sabin Center as New Climate Law Fellow


Posted on September 15th, 2020 by grennanmilliken

This week, Korey Silverman-Roati joins the Sabin Center as a Climate Law Fellow. Korey’s work will focus on, among other areas, international climate change litigation, carbon dioxide removal and solar radiation management research, and other fast action climate strategies.

Korey graduated from Harvard Law School in 2017, where he spent three years editing with the Harvard Environmental Law Review and worked with both the environmental and international human rights clinics. He received a Public Service Venture Fund Fellowship to start work at IGSD and a Chayes International Public Service Fellowship to work for a summer at the Center for Public Interest Law in Accra, Ghana. Prior to law school, Korey spent a year in Erzurum, Turkey on a Fulbright English Teaching Assistantship and graduated from Arizona State University with a B.S. in Sustainability.

September 2020 Updates to the Climate Case Charts


Posted on September 11th, 2020 by grennanmilliken

By Margaret Barry

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 # 137.

FEATURED CASE

Second Circuit Reinstated Penalty Increase for Fuel Economy Violations

The Second Circuit Court of Appeals vacated the National Highway Traffic Safety Administration’s (NHTSA’s) reversal of a 2016 increase to the penalty for violations of fuel economy standards. In 2016, NHTSA increased the penalty pursuant to Federal Civil Penalties Inflation Adjustment Act Improvements Act (the Improvements Act) from $5.50 to $14 for every tenth of a mile per gallon below the applicable standard, multiplied by the number of cars in a manufacturer’s fleet. In 2019, NHTSA reversed the increase based on its conclusion that the Improvements Act did not apply to the fuel economy penalty and that, even if the Act did apply, the penalty’s “negative economic impact” was sufficient to support reversal. The Second Circuit rejected both rationales. First, the Second Circuit held that the penalty was a “civil monetary penalty” under the Improvements Act. NHTSA therefore was required to adjust the penalty rate in accordance with the Improvements Act’s requirements. Second, the court held that reconsideration and reversal of the increase based on economic consequences was untimely and therefore beyond NHTSA’s authority. New York v. National Highway Traffic Safety Administration, Nos. 19-2395 & 19-2508 (2d Cir. Aug. 31, 2020).

DECISIONS AND SETTLEMENTS

Ninth Circuit Order Stayed Mandate After Affirming Remand of California Local Governments’ Climate Cases to State Court

In cases brought by San Mateo County and other California localities seeking climate change-related damages from fossil fuel companies, the Ninth Circuit granted the companies’ motion to stay the mandate after the Ninth Circuit affirmed a district court order remanding the cases to state court. The companies argued that a stay was warranted because their petition for writ of certiorari would raise the substantial question of whether a court of appeals may review any issue in a district court order granting remand where removal was based in part on the federal-officer removal statute or whether, as the Ninth Circuit ruled, the appellate court’s jurisdiction is limited to reviewing the district court’s decision on the federal-officer removal issue. The companies also argued there was good cause for a stay because remand would result in six cases being returned to four different state courts for proceedings, potentially forcing the defendants “to incur substantial burden and expense.” The Ninth Circuit stayed the mandate pending the Supreme Court’s action on the certiorari petition and, if the Supreme Court grants the petition, pending disposition of the case. The companies also filed a motion in the district court to confirm that the court’s orders staying issuance of the remand orders pending appeal would extend to the conclusion of any Supreme Court proceedings. On August 20, the court issued an order clarifying the stay was intended to remain in place until the mandate issued and that the companies could have requested an additional stay. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. Aug. 25, 2020), Nos. 3:17-cv-04929 et al. (N.D. Cal. Aug. 20, 2020).

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By Christine Weniger

The Adirondacks, NY (Source: Colin Hughes)

In April 2019, both houses of the New York legislature voted to add a new section to New York’s constitutional Bill of Rights declaring: “ENVIRONMENTAL RIGHTS: EACH PERSON SHALL HAVE A RIGHT TO CLEAN AIR AND WATER, AND A HEALTHFUL ENVIRONMENT” (capitalization in original). If the amendment is passed by both houses again in the 2021-2022 legislative session, voters will have the final word on its adoption in a state-wide referendum. This could happen as early as November 2021. According to the bill’s very brief official justification, constitutionalizing a right to the environment is warranted by “recent water contamination and ongoing concerns about air quality” in the state and “intends to ensure that clean air and water are treated as fundamental rights for New Yorkers”. 

Inserting an environmental right into New York’s constitution sparked heated debates ahead of a 2017 referendum giving New Yorkers the opportunity to convene a Constitutional Convention, which is the other way to amend the state constitution. The New York State Bar Association’s Environmental and Energy Law Section published a detailed analysis and recommended the adoption of a constitutional environmental right. It advised that such a right should include a governmental public trust duty, expressly reference the interests of future generations, and be made self-executing against all state government bodies (but not against private parties). In November 2017, the referendum to call a Constitutional Convention overwhelmingly failed; non-environmental issues dominated the debate. The State Assembly passed bills adopting the environmental amendment in 2017 and 2018, but they got nowhere in the Senate until the Democrats took over control of the Senate in 2019. Read more »

Climate Reregulation in a Biden Administration


Posted on August 26th, 2020 by grennanmilliken
 1 comment  

The White House, Washington, D.C. Source: Cezary P, Creative Commons

Since January 2017, the Sabin Center for Climate Change Law at Columbia University has been tracking the Trump administration’s ongoing efforts to rewrite federal climate change policy and deconstruct climate governance. Today, the Sabin Center released a collaboratively authored report that outlines a series of executive actions that a Biden administration could take to do the opposite: reregulate greenhouse gas emissions (GHGs) and achieve other mitigation and adaptation goals.

This report, Climate Reregulation in a Biden Administration, focuses on actions a new administration could take to change course on these deregulatory measures. We assume, for purposes of this report, that a Biden administration would face a divided Congress unwilling to implement any legislative reregulation measures, including invoking the Congressional Review Act, and so focus only on executive actions. Numerous steps are described in this report, ranging from revoking President Trump’s executive orders on Day One, to initiating new rulemakings to begin the long process of undoing the Trump administration’s climate-damaging final rules. The report will be periodically updated between now and Election Day.

Some of the most significant of the reregulatory actions detailed in the report include those that will be most familiar; for example, rejoining the Paris Agreement, reversing the so-called Affordable Clean Energy (“ACE”) Rule, and reinstating GHG emissions standards for motor vehicles. But these actions are just a few of the many that a Biden administration could take in January 2021 and onward. From the muzzling of the science and assessment that informs environmental regulation and federal decision-making, to weakening hallmark public health protections like the Clean Air Act and forward-looking initiatives like enforcing a federal flood protection standard, to endangering America’s largest tract of wilderness in Alaska for the sake of a declining oil market, the Trump administration’s attacks on climate and environmental protections have been vast and insidious. But as this report makes clear, a Biden administration could quickly overturn many of them—reregulate as opposed to deregulate—and get the United States back on track with climate policy.

To see a table summarizing the reregulatory actions detailed in the report, see here.

To see our model Executive Order, see here.

EPA Rescinds Methane Standards for Oil and Gas Facilities


Posted on August 14th, 2020 by Romany Webb
 1 comment  

By Romany Webb

Map of methane hotspots based on satellite data (Source: Kayrros analysis, Graphic: Business Wire)

On Thursday, August 13, the Environmental Protection Agency (EPA) issued a final rule rescinding the new source performance standards for methane emissions from facilities used in the production, processing, transmission, and storage of oil and natural gas. At the same time, EPA also rescinded the standard for volatile organic compound (VOC) emissions from facilities used in oil and natural gas transmission and storage. Production and processing facilities remain subject to the VOC standards, which EPA claims also adequately control methane emissions, since the two pollutants are typically released together. However, in a separate rule, EPA finalized various changes to the VOC standards that limit their effectiveness in controlling pollution. Among other things, EPA has weakened the requirements for leak detection and repair, which it admits will lead to higher emissions.

EPA’s announcement came just weeks after satellite images revealed a 300 metric ton plume of methane, possibly originating from a natural gas pipeline, moving across Florida. Another review of satellite data, published in July, identified major methane hotspots thought to be associated with oil and gas production and transportation in and around Pennsylvania and Texas. Nevertheless, in announcing its rescission of the methane standards, EPA boldly declared that “regulation of methane . . . [is] both improper and redundant.” That is simply not the case.

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August 2020 Updates to the Climate Case Charts


Posted on August 12th, 2020 by tiffanychalle

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 # 136.

FEATURED CASES

Methane Waste Prevention Rule Cases: California Federal Court Vacated BLM Repeal of 2016 Rule, Wyoming Federal Court Restarted Challenge to 2016 Rule

A federal court in California vacated the U.S. Bureau of Land Management’s (BLM’s) 2018 rule repealing most of the 2016 Waste Prevention Rule, finding that the process that resulted in the 2018 rule was “wholly inadequate.” First, the court found that BLM ignored the Mineral Leasing Act’s statutory mandate by adding an “economic limitation” to the interpretation of “waste” and through a “blanket delegation” to state and tribal authority. Second, the court found that BLM did not comply with the Administrative Procedure Act, finding fault with all of BLM’s grounds for the rescission. The court found that BLM did not provide adequate justification for reversing its position that the 2016 rule’s requirements were “economical, cost-effective, and reasonable”;  impermissibly relied on President Trump’s Executive Order 13783 in a manner that was inconsistent with statutory mandates; arbitrarily and capriciously used a new “interim domestic” social cost of methane to analyze costs and benefits; arbitrarily ignored the Waste Prevention Rule’s benefits; arbitrarily overstated the administrative burden and failed to explain the “dramatic recalculation” of administrative costs; and arbitrarily and capriciously calculated compliance costs. Third, the court found that BLM did not satisfy its “hard look” obligation under NEPA with respect to impacts on public health (including impacts on tribal communities), impacts on climate, and cumulative climate impacts of BLM’s fossil fuel program. The court further found that BLM erred by not preparing an environmental impact statement. The court stayed its vacatur of the 2018 rule and re-implementation of the 2016 rule for 90 days to allow the parties to determine next steps. Five days later, four states (North Dakota, Texas, Wyoming, and Montana) moved to lift a stay on litigation challenging the 2016 rule in the federal district court for the District of Wyoming. The Wyoming court granted the motion the following day and ordered the parties to propose an expedited merits briefing schedule premised on completion of briefing by September 4, 2020. California v. Bernhardt, No. 4:18-cv-05712 (N.D. Cal. July 15, 2020); Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. July 21, 2020).

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Climate Change and COVID-19: The Denial Playbook is the Same


Posted on July 30th, 2020 by Romany Webb

By Augusta Wilson*

The phrase “every disaster movie begins with a scientist being ignored” resonates more than ever as two disasters unfold: the COVID-19 pandemic and climate change. One is occurring with horrifying rapidity and one more slowly; both would be far less damaging if scientific advice were heeded earlier.

In the United States, the Trump administration has responded to the COVID-19 crisis using tactics it honed in the climate arena: ignoring or burying relevant scientific information, pushing misinformation, and silencing scientists who warn us of the dangers. This pervasive “see no evil, hear no evil” approach has handicapped the U.S.’s ability to respond to both of these unfolding crises.

From the start of the pandemic, scientists who spoke out about the increasing threat from COVID-19 were ignored and pushed out. The same thing has happened to climate scientists since the early days of the Trump administration. The mentality that climate change is a taboo subject has taken root so firmly that it filtered down from top-level political officials and is now enforced by lower-level career employees in scientific agencies.

In the early days of the administration, climate change information disappeared at an alarming rate from government websites. There was a considerable public outcry in late July when the Centers for Disease Control and Prevention appeared to cave to pressure from the administration and removed crucial coronavirus data from its website. Yet this event parallels the Trump administration’s behavior around climate change.

The similarities do not end there, as the Climate Science Legal Defense Fund and Columbia Law School’s Sabin Center for Climate Change Law are documenting in our Silencing Science Tracker. We have found that limiting or interfering with scientists’ ability to communicate publicly about their work is a frequent theme of the Trump administration. For example, the administration prevented a scientific expert from providing relevant testimony to Congress about the threats posed by climate change. It repeated this tactic when it blocked Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, from testifying to Congress about COVID-19.

Similarly, the administration prevented publication of politically unpalatable climate change research, and it has now done the same with COVID-19 research. The use of budget cuts to halt inconvenient research is another common tactic. The administration defunded politically undesirable research on climate change and has now cut funding for coronavirus research.

Other patterns include overruling or revising scientific conclusions because of political considerations and forbidding scientists to mention climate change or the pandemic.

This is far from a complete list of parallels. Unfortunately, when faced with inconvenient scientific research, the current administration only digs deeper into its toolkit of censorship and misinformation.

In April, policy experts at the Rocky Mountain Institute wrote that accurate and transparent data is crucial to informed decision-making about both COVID and climate change, and to maintaining public trust. They wrote that to combat COVID and climate change effectively, it will be necessary to “ambitiously connect data across diverse global systems to make the right investments at the right time.”

One of the first and most pressing tasks for the next administration will be to restore science to its rightful place and restore a culture of scientific integrity to institutions across the federal government. These are among the reasons why the Climate Science Legal Defense Fund has joined dozens of other organizations to promote pro-science measures for the next presidential term, written guides for federal scientists to understand existing scientific integrity protections, and supported expanding safeguards for federal scientists under the bipartisan Scientific Integrity Act.

Without the federal government re-prioritizing science, we cannot hope to effectively address both the COVID-19 and climate change crises we currently face.

*Augusta Wilson is a Staff Attorney at the Climate Science Legal Defense Fund

By Amy Turner

Earlier this year, I published on this blog about the wave of municipal natural gas bans enacted by municipalities in California and Massachusetts. At that time, two legal frameworks for these policies — which generally prohibit or restrict natural gas infrastructure in new buildings — had emerged. First, Berkeley, California used its municipal police powers to ban natural gas connections in new buildings, an approach later followed by Brookline, Massachusetts. Second, several other municipalities in California amended their local building energy codes to require all-electric construction (all-electric construction codes are a legal tool that accomplish the goals of a natural gas ban; if a new building is wired for and has only electric appliances, no natural gas connection is needed). Berkeley later supplemented its ban ordinance with a building energy code amendment. Municipalities in Massachusetts do not have building code authority.

In the months since these so-called bans were enacted, new legal arguments have been developed for why these prohibitions — particularly but not exclusively the policies formulated as outright bans rather than building code requirements — are or should be preempted by state or federal law. This blog post will examine three recent developments in the potential preemption of these bans. 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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