factorysmokeOn numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by Senator McConnell in his letter. The essay points out that the letter erroneously describes both EPA’s proposed regulations and the agency’s legal authority under the Clean Air Act. It examines how the letter does not fully delineate the consequences that will occur if states follow the letter’s advice and refuse to prepare plans that comply with the EPA regulations. Finally, the essay addresses claims in the letter regarding EPA’s ability to take control of state energy policy.

Professor Selmi is the Fritz B. Burns Professor of Real Property Law at Loyola Law School, Los Angeles, and a Visiting Scholar at the Sabin Center for Climate Change Law.

 1 comment  

Jennifer M. Klein, Esq.
Associate Director & Fellow

Coal_mine_WyomingA federal judge in Colorado has vacated a permit to expand a coal mine in New Mexico, finding that the agency approving the permit failed to consider the mercury pollution that would be released into the air when the coal is burned at a nearby power plant. While this case deals with the local environmental impacts of mercury pollution, it bears on federal agencies’ obligation to consider the climate impacts of fossil fuel extraction.

The Navajo Mine, located on a reservation in New Mexico, is the sole supplier of coal to the Four Corners Power Plant. In 2005, the mine operator, the Navajo Transitional Energy Company (NTEC)[1], sought to expand the mine’s operations and submitted an application for a revised permit to the Office of Surface Mining Reclamation and Enforcement (OSM). Pursuant to its obligations under the National Environmental Policy Act (NEPA), OSM completed an Environmental Assessment (EA) for NTEC’s permit revision application. OSM concluded that the proposed mine expansion would not have a significant impact on the environment and granted NTEC’s application.

Read more »

APRIL 2015 UPDATE TO CLIMATE LITIGATION CHARTS


Posted on April 8th, 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 latest additions to the Climate Case Chart

Update #73 (April 8, 2015)

FEATURED DECISION

Massachusetts Court Rebuffed Challenge to Adequacy of State’s Greenhouse Gas Reduction Measures

A Massachusetts Superior Court ruled that the Massachusetts Department of Environmental Protection (MassDEP) had substantially satisfied the requirements of the Global Warming Solutions Act, a 2008 law that required MassDEP to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” MassDEP argued that it had satisfied this mandate by developing three programs: limitations on sulfur hexafluoride leaks, participation in a regional cap-and-trade program for carbon dioxide emissions, and a Low Emission Vehicle program. The court found that each of these programs satisfied the statutory mandate, and said that the plaintiffs’ “various quarrels” with the regulatory actions were “hypertechnical and overly exacting.” One of the plaintiffs, Conservation Law Foundation, announced on March 25, 2015 that it would appeal the decision. Kain v. Massachusetts Department of Environmental Protection, No. SUCV2014-02551 (Mass. Super. Ct. Mar. 23, 2015): added to the “Force Government to Act/Other Statutes” slide.

DECISIONS AND SETTLEMENTS

Federal Court Rejected EPA Defense That Coal Companies Lacked Standing to Bring Jobs Case

The federal district court for the Northern District of West Virginia ruled that coal companies had standing to claim that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. The court said that the alleged injuries from the power industry’s discontinuance of the use of coal were fairly traceable to EPA actions, including EPA’s failure to conduct the employment evaluations. The court further found that such injuries would be redressable because conducting the evaluations could result in reversal of prior EPA actions. The court also found that the coal companies fell within the zone of interests protected by the Clean Air Act provision requiring the evaluations. In addition, the court held that the companies had procedural and informational standing. Murray Energy Corp. v. McCarthy, No. 5:14-CV-39 (N.D. W. Va. Mar. 27, 2015): added to the “Challenges to Federal Action” slide.

Read more »

 3 comments  

On March 24, after years of litigation, the Arizona Superior Court, Pima County, ruled in favor of the University of Arizona and its efforts to protect climate scientists’ correspondence and prepublication work.[1]  In particular, in Energy & Environment Legal Institute v. Arizona Board of Regents, et al., the court upheld the University’s decision to deny large portions of open records requests by Energy & Environment Legal (known as E&E, and formerly named the American Tradition Institute or ATI), a group that has repeatedly sought to use open records laws to access troves of researchers’ private files.[2]  E&E has been described as having “a core mission of discrediting climate science and dismantling environmental regulations” in part through “filing nuisance suits to disrupt important academic research,” and the group has been linked to the fossil fuel industry, “major conservative players,” and “organizations opposing action on climate change.”[3]

State and federal open records laws promote government transparency by allowing citizens to request administrative records, with exemptions for national security, trade secrets, and similar issues.  But open records laws have also become common tools of those seeking to harass scientists,[4] and open records requests for large swaths of documents (including private emails) have been made on scientists employed by the government or public universities, or who otherwise receive public funding.  The scientists must then review and produce potentially thousands of documents – sometimes in a matter of days, depending on the applicable laws – or marshal a legal response explaining why the requests are invalid.

In the Arizona case, E&E filed multiple requests under Arizona’s open records laws for the files of University of Arizona climate scientists Dr. Malcolm Hughes and Dr. Jonathan Overpeck, seeking thirteen years of documents – including emails dating back to the 90s.  (E&E has also unsuccessfully gone after Dr. Michael Mann’s emails in Virginia,[5] as well as many others.[6])  The University of Arizona produced some documents but denied release of several thousand others.[7]  The University stated the withheld documents contained protected intellectual property, including trade secrets and prepublication data and drafts; it also applied Arizona’s general records exemption that it was “in the best interests of the state” to withhold the documents.[8]  The University argued that releasing the scientists’ files would undermine academic collaboration and chill researcher correspondence – particularly between publicly funded scientists and privately funded ones, who are not at risk of such disclosure.  This in turn would harm the scientific process and reduce the competitiveness of Arizona’s public universities, as researchers would become more reluctant to work at Arizona public universities or with public university scientists.[9]

Read more »

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, www.columbiaclimatelaw.com, 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 http://climatesciencedefensefund.org

 

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.

 

[1] http://www.courts.gov.bc.ca/jdb-txt/SC/15/01/2015BCSC0165.htm

[2] http://www.desmogblog.com/2015/02/06/climate-scientists-andrew-weaver-wins-50-000-defamation-suit-against-national-post-terence-corcoran

[3] http://www.ucsusa.org/global_warming/solutions/fight-misinformation/debunking-misinformation-stolen-emails-climategate.html#.VPNuSEu0HKE

[4] http://news.nationalpost.com/2015/02/07/climate-scientist-wins-defamation-suit-against-national-post/#__federated=1

[5] It is also generally harder to prove defamation in the United States than in Canada:  http://kellywarnerlaw.com/chart-differences-between-united-states-and-canadian-defamation-law/

[6] http://www.salon.com/2014/01/30/a_defamation_lawsuit_may_kill_national_review/

[7] http://www.climatesciencewatch.org/wp-content/uploads/2014/01/Mann_v_NR_Weisberg_Order_1-22-14.pdf

[8] http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/09/mann-v-steyn-steyn-goes-his-own-way/

[9] http://sciencecareers.sciencemag.org/career_magazine/previous_issues/articles/2015_01_28/caredit.a1500026

[10] http://bos.sagepub.com/content/71/1/33.abstract

[11] For more on that case, see here:  http://www.washingtonpost.com/blogs/local/wp/2014/04/17/va-supreme-court-rules-for-u-va-in-global-warming-foia-case/

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.

 

FEATURED DECISION

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.

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