On September 14, the Arizona Court of Appeals, Division II, ruled that a trial court decision to release climate scientists’ emails had improperly ignored an Arizona statutory protection for university records.  In this case, the Energy & Environment Legal Institute (“E&E Legal”) has been attempting to use open records laws to obtain a 13 year span of emails from two University of Arizona climate scientists. This ruling returns the case to the trial court for a consideration of whether the statutory protection applies to the emails sought here.

State and federal open records laws promote government accountability by allowing citizens to request copies of administrative records, but these powerful tools can also be misused “to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.”  Overly intrusive open records requests, particularly for emails, can discourage the candid exchange of ideas (including “devil’s advocate” arguments and “what if” debates), and provide opportunities for hostile actors to take phrases, including scientific jargon, out of context in order to mislead and confuse the public.  Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” Read more »

By Dena Adler

A Texas National Guardsmen carries a resident through floodwaters left by Hurricane Harvey. Army National Guard photo by Lt. Zachary West.

It has been widely reported that Hurricanes Harvey and Irma inundated industrial plants, wastewater treatment plants, and Superfund sites, causing a stew of toxic chemicals and sewage to leak into floodwaters and releasing almost 1 million pounds of seven deadly pollutants into the air. The Union of Concerned Scientists, for instance, has identified more than 650 energy and industrial facilities potentially exposed to Hurricane Harvey’s floodwaters. In the days following Hurricane Harvey, The New York Times reported at least 14 toxic waste sites were flooded or damaged and roughly 100 spills of hazardous substances were phoned in to the National Response Center from Southeast Texas.  Liquid mercury was found washing ashore residential riverfront property east of Houston and the AP tracked 3 potentially contaminated leaks from one of Texas’ dirtiest Superfund toxic waste sites. Though Florida may not have the same chemical epicenter as Houston, its nuclear reactors, mines, and low-lying Superfund sites could wreak havoc if flooded, and Irma resulted in more than 28 million gallons of sewage gushing into streets, homes, and waterways in 22 counties.

In addition to posing a public health nightmare, these contaminated floodwaters and toxic air emissions could indicate potential environmental statutory violations under the Clean Water Act (CWA), the Oil Pollution Act of 1990 (OPA), the Resource Conservation & Recovery Act (RCRA), the Clean Air Act (CAA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). While a comprehensive review of liability is beyond the scope of this blog, below, I discuss several of the legal requirements possibly violated which could usher in a wave of climate change-related lawsuits. Notably, this litigation dodges the sticky issue of climate change attribution – facilities and municipalities are liable for failing to undertake adequate preparatory, safety, and control measures without needing to prove a link between global climate change, the particular storm, and actual harms suffered. Read more »

By Michael Burger

This past July, three local governments in California filed three different lawsuits in California state courts, claiming that the extraction, promotion, and sale of fossil fuels by a group of oil, gas, and coal companies constituted torts under a number of different state common law theories. (I previously discussed the lawsuits here.) In August, some of the defendants in one of the cases filed a notice of removal, seeking to transfer the case from state to federal court, arguing that the federal court has original jurisdiction. Among the seven rationales defendants offer, one is that the local governments’ claims, though styled as state common law claims, are necessarily federal common law claims. This argument is important beyond the outcome of the removal notice – if defendants are right, then similar lawsuits that seek to obtain damages from climate change impacts, whether from slow onset changes like sea level rise or extreme events like Hurricanes Harvey and Irma, would necessarily become federal cases. And if that’s right, then it is possible all of them could be dismissed out of hand, as the U.S. Supreme Court has held that the Clean Air Act has displaced federal common law suits against greenhouse gas emitters. But I don’t think it is right.

Read more »

Keeping the Lights on These Days Means Planning for Climate Change


Posted on September 13th, 2017 by Justin Gundlach

by Justin Gundlach

Due to damage from Hurricane Irma, the lights are out in much of southern Florida—an inconvenience to many and fatal to some. Meanwhile, in Texas, power still has not been restored everywhere in the aftermath of Hurricane Harvey. As the Wall Street Journal headline says of both states, “Power Outage Pushes Limits.” Utilities and utility commissions in those states and others must learn the lesson these storms have to teach. It is one that New York City and the State’s Public Service Commission (PSC) learned following Hurricane Sandy: as the climate changes, electricity grids designed to deal with historical weather and temperature patterns will become less resilient and, consequently, less reliable.

The Sabin Center for Climate Change Law led the effort to guide New York to this lesson by intervening in a proceeding before the New York PSC after Sandy had wreaked havoc on downstate electricity distribution grids. Consolidated Edison, the utility company responsible for New York City’s grid, had conducted a narrowly focused assessment of its vulnerabilities to climate risks, and as part of its rate request sought funding for routine triennial operations, maintenance, and investment, and for certain measures to protect against the next Sandy-like event. The Sabin Center argued that ConEd’s assessment was inadequate and proposed to the PSC that electricity ratepayers’ money should also be allocated to (1) a thorough Climate Change Vulnerability Assessment of ConEd’s facilities, and (2) efforts to adapt the grid to the circumstances revealed by the vulnerability assessment’s findings. The PSC endorsed this proposal—not only for ConEd but for utilities statewide. After some delay, ConEd’s thorough vulnerability assessment is underway, and is slated for completion in late 2019.

In a rational world, New York’s experience of flooding amid Superstorm Sandy, complete with an exploding substation and long power outage, would have prompted other state commissions to call on their utilities to examine whether they would be able to keep the lights on amid storms—and other weather events, like heat waves—amplified by climate change. But few have done so (California is a notable exception). Indeed, in May 2016, Florida Power & Light’s (FPL) parent company rejected shareholder calls for an assessment of FPL’s vulnerabilities to sea level rise and related hazards, such as larger storm surges. Consequently, while FPL has buried power lines and replaced many of its wooden utility poles with concrete ones, it remains exposed to unexamined climate-driven hazards. In this, it is not unusual. Few utilities—in Florida, Texas, or elsewhere—have examined their vulnerabilities to climate-driven hazards, much less taken steps to reduce those vulnerabilities. Of course, blindness to vulnerabilities only lasts until dire moments, such as Hurricanes Harvey and Irma, reveal them, too late to mitigate the damage.

Below the jump, I describe the rudiments of climate change vulnerability assessments and adaptation planning, and offer suggestions for how commissions and advocates can push utilities in their states to follow the trail blazed by New York and California.

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Dena Adler Joins the Sabin Center as a New Climate Law Fellow


Posted on September 12th, 2017 by Tiffany Challe

Last week, Dena joined the Sabin Center as our 2017-2019 Climate Law Fellow. Dena’s work at the Sabin Center will focus on developing legal and regulatory tools to advance the efforts of governments and private actors to adapt to a changing climate and to mitigate the effects of climate change. She is particularly interested in cultivating solutions that can work cohesively across jurisdictional scales.

Before starting at the Sabin Center, Dena completed a J.D. at Yale Law School and a Masters of Environmental Management at Yale School of Forestry & Environmental Studies. While at Yale, Dena worked with the Yale Climate Change Dialogue and City of Paris to expand global action on climate change by designing legal mechanisms that could link climate change action commitments from cities, regional governments, and corporate actors to the international treaty regime. She has previously completed legal internships at the Environmental Defense Fund, Earthjustice, and the White House Council on Environmental Quality.

Dena first became passionate about advancing climate change policy as an undergraduate conducting aerial and backcountry surveys to measure the effects of climate change on vulnerable species in the Greater Yellowstone Ecosystem. As she photo-documented the unprecedented outbreak of mountain pine beetle devastating the region due to warming temperatures, she grew increasingly alarmed by the impacts of climate change on the most remote and wild corners of our planet. Witnessing how that data helped support litigation to relist the grizzly bear to the Endangered Species Act, she began a joint J.D./M.E.M. degree at Yale to better understand how to advance legal and policy solutions that mitigate the extent and impacts of climate change.

You can reach Dena at dpa2126@columbia.edu.

 

by Justin Gundlach

Hurricanes like Harvey and Irma do not wipe clean the slate of prior plans, designs, and construction choices in the communities they afflict, but they do require officials, planners, and home and business owners to decide whether and how to alter those plans as they rebuild. As Governor Abbott of Texas said shortly after Harvey inundated the Houston region, recovery should involve “rebuilding in a way that will prevent a disaster like this from happening again.” (At right: a home damaged by Harvey.)

Much of the financial support for rebuilding comes from federal money directed to presidentially-declared disaster areas—like Harris County, Texas. The words Congress uses to direct that money can matter quite a lot.

Read more »

September 2017 Updates to the Climate Case Charts


Posted on September 7th, 2017 by Tiffany Challe

Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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 # 101.

FEATURED CASE

D.C. Circuit Said FERC Needed to Provide More Information on Pipelines’ Downstream Greenhouse Gas Emissions—Or Explain Why It Couldn’t

In a split opinion, the D.C. Circuit Court of Appeals found that the environmental impact statement (EIS) prepared by the Federal Energy Regulatory Commission (FERC) for the Southeast Market Pipelines Project did not contain enough information on the greenhouse gas emissions that would result from combustion of the gas that the project would carry. When completed, the project—which comprises three interstate natural-gas pipelines in the southeastern United States—would be able to carry one billion cubic feet of natural gas per day. The D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible” because it was reasonably foreseeable that the transported gas would be burned in Florida power plants. The court distinguished its conclusion in earlier cases that FERC had no legal authority to consider the environmental effects of natural gas that would be exported from the liquefied natural gas (LNG) facilities it authorized. The D.C. Circuit said that while FERC was forbidden from relying on the environmental effects of gas exports as a justification for denying an upgrade license for an LNG facility, FERC’s authority over pipelines permitted FERC to deny a pipeline certificate on the ground that it would be too harmful to the environment. The D.C. Circuit also was not persuaded by FERC’s “practical objection” regarding the impossibility of knowing “exactly what quantity of greenhouse gases will be emitted as a result of this project being approved.” The court said FERC should have either made a quantitative estimate of downstream greenhouse gas emissions or “explained more specifically” why it could not do so. The court also indicated that the fact that downstream emissions might be offset by reductions elsewhere (from the retirement of coal-fired plants, for example) did not excuse FERC from making emissions estimates. In response to petitioner Sierra Club’s argument that FERC should use the Social Cost of Carbon to convert emissions estimates to concrete harms, the D.C. Circuit directed FERC to explain in the EIS whether it would adopt the position it took in the EIS for an LNG terminal that the Social Cost of Carbon was not useful for purposes of environmental review under the National Environmental Policy Act. In addition to its holdings regarding FERC’s greenhouse gas emissions analysis, the D.C. Circuit also determined as a threshold matter that the petitioners had standing to challenge all three segments of the pipeline project, not just the segment alleged to have caused an injury-in-fact and upheld other aspects of FERC’s environmental review. Judge Janice Rogers Brown dissented on the issue of downstream emissions, writing that in her view such emissions did not need to be considered because FERC did not control whether the greenhouse gas emissions would occur. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Aug. 22, 2017).

Read more »

Join Our Team: 2018-2020 Fellowship in Climate Change Law


Posted on September 5th, 2017 by Romany Webb

The Sabin Center for Climate Change Law is now accepting applications for a two-year fellowship to commence on September 1, 2018. The fellow will work on a wide variety of research and writing projects concerning climate change; contribute to advocacy-oriented programs and projects; and help organize conferences and seminars.

Applicants must have received a J.D., J.D. equivalent, or LL.M. within three years of beginning the fellowship. Strong academic qualifications and a background in environmental, natural resources, or energy law and policy will be expected.

For more information, please visit our website.

Climate Law Issues Related to Hurricane Harvey


Posted on August 31st, 2017 by Romany Webb

By The Sabin Center for Climate Change Law

Flooding in Houston following Harvey

The onslaught of Hurricane Harvey has provoked a widespread reckoning with the foreseeability of such extreme events in the age of climate change, and with how institutionalized shortfalls in preparedness have contributed to the unfolding disaster. Flooding from Harvey’s tremendous rainfall has led to direct impacts on critical public infrastructure, private infrastructure, and millions of homes and businesses, including in many instances complete destruction, as well as secondary or spinoff effects, such as the release of toxic pollutants into the environment from industrial facilities in the hurricane’s path. All of this raises critical questions for climate change law and policy. Here, the team of lawyers at the Sabin Center offers a brief primer on eleven key climate law issues highlighted by and likely to arise due to Hurricane Harvey:

Read more »

On August 21, the federal District Court for the District of Columbia upheld the decision by the National Oceanic and Atmospheric Administration (NOAA) to withhold NOAA climate scientists’ research documents from release to the conservative group Judicial Watch.

Judicial Watch sought to use the Freedom of Information Act (FOIA) – which allows citizens to request copies of government documents – to obtain NOAA scientists’ emails, drafts, and peer review comments regarding a June 2015 paper published in Science.  This paper, sometimes referred to as the “Hiatus Paper,” found that recent ocean surface temperature increases were greater than some other studies had indicated, and that there had been no “hiatus” in ocean warming as some have argued.  Judicial Watch’s president claimed that the requested NOAA documents “will show that the Obama administration put politics before science to advance global warming alarmism.” Read more »

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