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.

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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.

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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 »

New White Paper: Electricity Sector Adaptation to Heat Waves

Posted on February 4th, 2015 by Jessica Wentz

sun and power linesThe Sabin Center has published “Electricity Sector Adaptation to Heat Waves” by Sofia Aivalioti, a student in the Joint European Master in Environmental Studies – Cities & Sustainability program and a Visiting Scholar at the Center last fall. The white paper takes an up-close look at the impacts of extreme heat events on the electricity generation, transmission and distribution system and makes a series of recommendations for adaptive responses that can help states and localities avoid blackouts and brownouts and the risks to public health, public safety and local economies they pose. The recommendations include sweeping technological fixes and grid modernization, behavioral changes by utilities and end users alike, and managing the complexity of a multi-scalar, multi-sectoral problem through transparency and communication. The paper also provides comparative case studies of heat waves and adaptation responses in France, California, New York City and Australia.

February 2015 Update to Climate Litigation Charts

Posted on February 3rd, 2015 by Jessica Wentz

gavelEach 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 #70.



Federal Court Rejected Plaintiffs’ Standing Arguments in Challenge to Ex-Im Bank Loan Guarantee for Coal Company

The federal district court for the District of Columbia ruled that environmental groups did not have associational or organizational standing to challenge a loan guarantee by the Export-Import Bank of the United States (Ex-Im Bank) to Xcoal Energy & Resources, LLC (Xcoal). The environmental groups contended that the $90-million loan guarantee facilitated export of $1 billion in U.S. coal, and that Ex-Im Bank had failed to comply with the requirements of the National Environmental Policy Act. The court ruled that the environmental groups asserting associational standing had failed to establish the redressability component of standing because they had not established a likelihood that a change in Ex-Im Bank’s authorization of the loan guarantee  would affect Xcoal’s export of coal. Noting that, in a case like this one, the agency’s action is “only one piece of the redressability puzzle,” the court found that a declaration submitted by Xcoal’s vice president of finance supported the defendants’ assertion that Xcoal had obtained enough alternative sources of credit so that rescission of the loan guarantee would not impede coal exports; the court further found that the environmental groups had not brought forward any facts to rebut this testimony. The court also held that two other environmental groups—Pacific Environment (PE) and the Center for International Environmental Law (CIEL) —failed to establish organizational standing. The two groups had asserted that Ex-Im Bank’s actions caused injuries to their missions, activities, and resources. The court found that neither group had established injury-in-fact. The court found that PE had not established either a conflict between approval of the loan guarantee and PE’s mission, an impediment to the PE’s activities, or a drain on PE’s resources. With respect to CIEL, the court was not persuaded by arguments that CIEL’s policy work had been undermined because CIEL was forced to direct time and resources towards monitoring Ex-Im Bank’s policies, or that CIEL’s public education efforts had been injured by its inability to provide input during the course of Ex-Im Bank’s decision-making process. Chesapeake Climate Action Network v. Export-Import Bank of the United States, No. 13-cv-1820 (D.D.C. Jan. 21, 2015): added to the “Stop Government Action/NEPA” slide.

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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 »

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