Today, the Sabin Center published a new working paper discussing the possibility of federal and/or state regulation to increase fuel octane levels. Many readers may be wondering: what is octane? And why do we want to increase it? In simple terms, octane is a measure of a fuel’s ability to withstand compression in a vehicle engine, without self-igniting. Most fuel sold in the U.S. has a low octane rating, meaning that it is prone to self-ignition when compressed, and thus can only be used in low-compression engines. Those engines are extremely inefficient and emit significant carbon dioxide. It’s not surprising then that transportation is the second largest source of carbon dioxide in the U.S., accounting for a massive 31 percent of national emissions in 2014 according to the Environmental Protection Agency (“EPA”).

Carbon dioxide emissions could be reduced by increasing engine compression ratios. In high compression ratio engines, fuel is subjected to greater pressure in the combustion chamber and therefore burns more completely, producing more power with fewer emissions. Despite these benefits, however, high compression engines are not widely used in the U.S. This is primarily due to concerns over the potential for high compression engines to experience knock, an abnormal combustion phenomenon wherein fuel self-ignites and explodes, resulting in an increase in pressure which can damage the engine and reduce vehicle efficiency. To avoid knock, high compression engines must use premium, high octane fuel. A 2014 study by researchers at the Massachusetts Institute of Technology found that switching to premium fuel would enable the deployment of high compression engines which are 2 to 5 percent more fuel efficient than current models.

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Taking Account of National Circumstances in Environmental Instruments

Posted on January 10th, 2017 by Jessica Wentz

The Sabin Center has just published a new working paper by Susan Biniaz, the lead climate change lawyer for the U.S. Department of State since 1989 – I Beg to Differ: Taking Account of National Circumstances under the Paris Agreement, the ICAO Market-Based Measure, and the Montreal Protocol’s HFC Amendment. The following excerpt introduces the key issues covered in her paper.

Within less than a year, States reached agreement on three major climate change-related instruments:  the Paris Agreement, the International Civil Aviation Organization (ICAO) Resolution on a global market-based measure to address international aviation emissions, and the Kigali Amendment to the Montreal Protocol to phase down production and consumption of hydrofluorocarbons (HFCs).  What is remarkable about these three instruments is not only the short period of time in which they were all completed (and, in the case of the Paris Agreement, entered into force), but the variety of methods by which negotiators took account of different national circumstances in formulating commitments and other aspects of cooperation.

The issue of “differentiation,” or the extent to which an instrument makes distinctions among States in setting out commitments and other features, has been a particularly salient and controversial one in the climate change arena.  The foundational UN Framework Convention on Climate Change set forth a general principle regarding “common but differentiated responsibilities and respective capabilities” and established several categories of countries, including those that are or are not listed in Annexes I and II.  However, all Parties had commitments and, except with respect to finance, the distinctions among such commitments were relatively minor.  The Kyoto Protocol radically changed the differentiation narrative by placing legally binding emissions commitments on “Annex I” Parties and essentially excluding all other Parties from any new commitments.  Kyoto’s stark divide between the two categories of Annex I and non-Annex I Parties (also referred to, somewhat less accurately, as “developed” and “developing” countries) was a major reason why the United States did not join the Protocol and led to many years of diplomatic wrangling.  Even the word “differentiation” was a source of contention; some used it as shorthand for the proposition that “developed countries must take on binding commitments, while developing countries may engage in voluntary actions,” which irritated others.

Nearly twenty years later, the Paris, ICAO, and HFC instruments all fall far from the Kyoto tree.  They reflect a wealth of approaches to addressing various national circumstances, including in relation to participation in the regime per se, the nature of commitments, the timing of commitments, the need for assistance, and other features.

There is substantial variety in approaches to differentiation both within each of the three instruments and among them.  What all of them have in common is how they pragmatically answered the need for accommodation, whether demanded by logic, fairness, limited capacity, or simple negotiating leverage.  Further, they have significantly expanded the arsenal of differentiation tools available to negotiators in the future, in the climate world and other spheres where appropriate.

Climate Case Chart Updates – January 2017

Posted on January 9th, 2017 by Jessica Wentz

Each month, Arnold & Porter Kaye Scholer LLP 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.



D.C. Appellate Court Said Climate Scientist Michael Mann’s Defamation Claims Could Proceed Against Authors and Publishers of Two Articles

The District of Columbia Court of Appeals upheld in part and reversed in part a trial court’s denial of special motions to dismiss defamation claims made by the climate scientist Michael Mann against three authors of online articles and Competitive Enterprise Institute and National Review, Inc., which published the articles on their websites. The Court of Appeals also reversed the denial of special motions to dismiss Mann’s claim of intentional infliction of emotional distress because the appellate court concluded that Mann had not demonstrated that he was likely to succeed in proving that he suffered severe emotional distress. The articles at issue in the action asserted that Mann had been “shown” to have behaved in a “deceptive” and “most unscientific manner” because he “molested and tortured data in the service of politicized science”; that he engaged in “academic and scientific misconduct”; that an investigation by his employer Pennsylvania State University was a “whitewash” or “cover-up”; and that a lawsuit threatened by Mann was “fraudulent” or “intellectually bogus and wrong.” The articles also likened Penn State’s investigation of Mann’s work to the university’s investigation regarding its former assistant football coach Jerry Sandusky, who was convicted of child sexual abuse. The appellate court concluded that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. In finding that Mann had met his burden of showing that a jury could find “actual malice” with respect to two of the articles, the appellate court said it would be for a jury to determine the credibility of the appellants’ assertions of “honest belief” in the truth of their statements and whether the belief was maintained “in reckless disregard of its probable falsity.” It would also be for a jury to consider the appellants’ objections to multiple investigation reports that found no evidence of misconduct by Mann. Competitive Enterprise Institute v. Mann, Nos. 14-CV-101, 14-CV-126 (D.C. Ct. App. Dec. 22, 2016).

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coal-fired-power-plantEleven of the world’s top experts on carbon capture and storage (“CCS”) have joined an amicus brief in support of the U.S. Environmental Protection Agency’s emission standard for new coal-fired power plants. The standard is based on the greenhouse gas emissions reductions that can be achieved through the implementation of partial CCS, and one of the central issues in the case is whether CCS technologies are adequately demonstrated and available for installation at coal-fired power plants. The scientists that signed on to the brief believe that the answer to this question is a resounding “yes.”

“The Republican state attorneys general and fossil fuel industry groups that have sued to overturn EPA’s emission standard for new coal-fired power plants want to keep polluting the atmosphere with greenhouse gases for free,” said Michael Burger, author of the brief and executive director of the Sabin Center for Climate Change Law at Columbia Law School. “But leading scientists on carbon capture and sequestration agree with EPA that this technology is readily available and deployable, and will only get cheaper and better over time. This rule is a wholly reasonable approach to helping solve our climate crisis.”

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philippines-coastToday, the Sabin Center made a submission to the Philippines Commission on Human Rights in support of a petition requesting an investigation into the responsibility of the investor-owned “Carbon Majors” for human rights violations resulting from the impacts of climate change. The Commission has already launched the investigation, and is now in the process of determining whether and how these companies may be held accountable for their contribution to climate change. The companies under investigation are coal, oil, natural gas and cement producers that are jointly responsible for approximately one fifth of global greenhouse gas emissions.

Our submission focuses on two critical components of the investigation: (1) the nexus between climate change and the effective enjoyment of human rights, and (2) the legal basis for holding private companies accountable for human rights violations arising from their contribution to climate change.

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Climate Litigation Chart Updates – December 2016

Posted on December 12th, 2016 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.



Oregon Federal Court Said Young People Could Pursue Constitutional Claims to Compel Federal Climate Action

In an action seeking to compel federal action to reduce carbon dioxide emissions, the federal district court for the District of Oregon denied motions to dismiss public trust and due process claims against the United States and federal officials and agencies. The plaintiffs—young people who alleged that excessive carbon emissions were threatening their future, a non-profit group, and “Future Generations” represented by a climate scientist—alleged that the defendants had known for decades of the dangers of carbon dioxide pollution and had nonetheless take actions that increased emissions. The court held that the action did not raise a nonjusticiable political question because it asked the court to determine whether defendants had violated the plaintiffs’ constitutional rights, a question “squarely within the purview of the judiciary.” The court also concluded that the plaintiffs had adequately alleged standing to sue. In determining that the plaintiffs had adequately alleged a due process claim, the court said that the plaintiffs had asserted a fundamental right “to a climate system capable of sustaining human life” and that the plaintiffs’ allegations regarding the defendants’ role in creating the climate crisis, the defendants’ knowledge of the consequences of their actions, and the defendants’ deliberate indifference in failing to act to prevent the harm were sufficient to state a “danger-creation” due process claim. In finding that the plaintiffs had adequately stated a public trust claim, the court said that it was not necessary to determine whether the atmosphere was a public trust asset because the plaintiffs had also alleged the claim in connection with the territorial sea, to which the Supreme Court had said “[t]ime and again” that the public trust doctrine applies. The court also rejected the arguments that the public trust doctrine does not apply to the federal government and that federal environmental statutes displaced public trust claims. The court also was not persuaded that plaintiffs lacked a cause of action to enforce public trust obligations, concluding that the public trust claims were substantive due process claims and that the Fifth Amendment provided a right of action. Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Nov. 10, 2016).

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Sabin Colloquium on Innovative Environmental Law Scholarship, May 4-5, 2017

Posted on December 6th, 2016 by Justin Gundlach

Columbia Law School, New York, NY    |    May 4-5, 2017

The 5th Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions. Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.

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by Michael Burger & Justin Gundlach

Deliberately attempting to alter the climate, either by removing greenhouse gases (GHGs) from the atmosphere or by reducing the amount of sunlight that hits the earth’s surface, would take humanity into uncharted territory, both in scientific and political terms. Given the precarious state of the climate and the world’s current rate of GHG emissions, many argue that research into climate engineering must begin now, lest we encounter a climate emergency and lack the tools to address it. Others, however, argue that investing in research on how to (re)engineer the climate puts humanity at a different type of risk – namely, trying to figure out how to govern climate engineering without first answering the question of whether climate engineering should be pursued at all.

Research Governance” is a chapter in the forthcoming volume from Cambridge University Press, edited by Michael B. Gerrard and Tracy Hester, Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal. The chapter describes the nascent and inchoate current state of climate engineering research governance, as well as the key issues that any effort to govern climate engineering must address. After surveying research efforts, issues, and institutions – or institutional gaps – the authors conclude as follows: “there is a very real and increasingly urgent need to answer the key questions surrounding governance: what qualifies as climate engineering research subject to governance, at what point do governance requirements kick in, what substantive rules should apply, and who should do the governing.”

Report from COP22: Conclusion of Talks in Marrakech

Posted on November 20th, 2016 by Romany Webb
Flags of the 197 parties to the UNFCCC outside COP22

Flags of the 197 parties to the UNFCCC outside the blue zone at COP22

For the last two weeks, representatives of almost 200 countries have been in Marrakech for the 22nd Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change, known as COP22. Coming into the conference, there were high hopes that it would be the “COP of Action,” with countries working to implement the Paris Agreement, reached at COP21 last year. Aimed at limit global warming to “well below” 2oC above pre-industrial levels, the Paris Agreement establishes an overarching framework for action to address climate change, but leaves much of the detail to be worked out through future negotiations. These negotiations began in May in Germany and continued in Morocco at COP22.

There was broad agreement, among country representatives at COP22, on the need to advance implementation of the Paris Agreement. Reaching consensus on how to do proved difficult, however. Discussions continued into the early hours of the morning for several days, finally wrapping up around 4am on Saturday, with the adoption of thirty-five decisions, establishing a detailed plan for moving forward to implement the Agreement. Most significantly, it was decided that all preparatory work for implementation should be completed by 2018, with a progress review in 2017. While that is longer than many had hoped, it bears remembering that completion of work to implement the Kyoto Protocol took four years. Whereas the Kyoto Protocol required only developed countries to take action to address climate change, the Paris Agreement requires action by developing countries as well.

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Government agencies are often required to conduct some form of environmental impact assessment (EIA) before approving a major project or proposal. The documents generated during these assessments contain a wealth of information about baseline environmental conditions, impact assessment methodologies, predicted impacts, and environmental mitigation measures. But these documents are often filed away and forgotten after the proposal is approved, and as a result, the valuable information contained therein is rarely utilized in future applications.

The Sabin Center has published a paper describing how public access to and utilization of EIA data could be improved through the development of a centralized and fully searchable online database. The paper first outlines the rationale for undertaking such an endeavor: it describes the type of information contained in EIA documents, potential applications of this information, and the limitations of existing EIA databases (which only cover a subset of the total universe of EIA documents). The paper then describes four steps that could be taken to create a more comprehensive and user-friendly EIA database:

  1. Connect existing databases, preferably through the creation of a centralized database.
  2. Expand the scope of the documents that are accessible through the centralized database to include older documents, documents from other jurisdictions, and different types of EIA documents (e.g., to include Environmental Assessments as well as Environmental Impact Statements).
  3. Add searching, sorting, and filtering features that make it easier for users to find specific documents as well as specific types of data contained in those documents.
  4. Prepare new EIA documents in a manner that will streamline the process of adding these to the database and make it easier for users to find relevant information within the document.

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