By Diane Jung, Undergraduate Intern

6101300489_ed46866554_zOn June 19, 2014 both houses of the Rhode Island legislature passed the Resilient Rhode Island Act of 2014, which addresses climate mitigation, adaptation and resilience, and establishes greenhouse gas emissions reductions targets of 10% below 1990 levels by 2020, 45% by 2035, and 85% by 2050. The bill also provides many guidelines for meeting these targets, such as a focus on improving efficiency in order to reduce its need for “energy from out-of-state sources.” It also calls for “intentional community effort that networks existing capacities in state agencies” and declares a need to establish “new capacities, purposes, goals, indicators, and reporting requirements for climate change mitigation and adaptation in public agencies.” [1] The Resilient RI Act was supported by Governor Lincoln Chafee, a number of state agencies, and academic institutions including Brown University.

With a greenhouse gas reduction target of 85% by 2050, the Resilient RI Act can claim the most ambitious mitigation goal in the nation. Rhode Island is not, however, acting alone: with the impacts of climate change increasingly tangible in the US Northeast, efforts to create and to support effective climate plans and bills have been active in many states. For instance, Massachusetts passed the Global Warming Solutions Act (GWSA) in August of 2008, which is a climate bill similar to the Resilient RI Act, in that it requires reductions of greenhouse gas emissions from all sectors of the economy with targets of a 25% reduction by 2020 and an 80% reduction by 2050. [2] The Massachusetts government has touted that bill’s role in fostering of economic growth, as the number Massachusetts’s clean energy employers has increased by 24% since 2011. [3] Rhode Island also seeks to expand its job market with its new climate bill.

The Resilient RI Act is the latest step in Rhode Island’s efforts to make the state more equipped to deal with climate change impacts. A Climate Change Commission was created by the General Assembly in 2010, and the Commission’s report in 2012 addresses key evidence, impacts, and risks of local climate shifts. The report finds that average air temperatures in Rhode Island have increased 1.7℉ from 1905 to 2006, and in an extreme case, the surface temperature of Narragansett Bay has risen four degrees since the 1960s. Furthermore, the average rate of sea level rise in Rhode Island at Newport’s tide is 0.1 in. per year since 1930, and the rate increased to 0.14 in. between 1990 and 2009. This makes the rate of sea level rise in Rhode Island higher than the global average rate of sea level rise of 0.07 in. per year in last 100 years. [4]

This evidence of severe localized climate change impacts, combined with recent memories of Hurricane Irene’s and Sandy’s devastation and recognition of the vulnerability caused by large coastal populations, seems to be a driving force behind strong climate action in the US Northeast. In addition to setting ambitious targets for reducing emissions, many Northeastern states have been widely promoting climate adaptation and risk management plans and programs. The Resilient RI Act of 2014 adds to these efforts and sets a new bar for mitigation targets, making it a noteworthy and commendable model in state actions to combat climate change.



[1]“Resilient Rhode Island Act of 2014.” Accessed July 3, 2014.


[2],[3] “Massachusetts Global Warming Solutions Act (GWSA).” Energy and Environmental Affairs, June 3, 2014.


[4] “Adapting to Climate Change in the Ocean State: A Starting Point ,” May 2012.


*image source



Judge Endorses Use of the Social Cost of Carbon in NEPA Analysis

Posted on July 21st, 2014 by Akiko Shimizu

By Ellii Cho, Summer Legal Intern

smoke-238241_640In 2010, the U.S. government formed an interagency working group of scientific and economic experts to develop an estimate of the social cost of carbon (SCC). The SCC puts a dollar figure on the damages done or damages avoided for possible scenarios resulting in discrete amounts of carbon dioxide emission. Designed for use in federal rulemakings, the SCC aims to provide a consistent and defensible quantification of the economic impacts of climate change. For example, it is used to assess the climate impact of regulations such as fuel economy standards for cars or appliance efficiency standards. Although the SCC is intended to be comprehensive, some critics have argued that the 2015 estimate of $37 per metric ton of CO2 underestimates the damages by failing to consider all relevant and material data. Read more »

In Contrast to U.S., South Korea Aggressively Pursues Nuclear Power

Posted on July 16th, 2014 by Akiko Shimizu

By Yeein Lee, Summer Legal Intern

namdaemun-326138_640Even as President Obama’s commitment to fight climate change has led his Administration to support low-carbon nuclear power,[1] many U.S nuclear power plants are being shut down or slated to shut down, and fewer companies are seeking licenses to build new plants. Although the US is still the world’s largest producer of commercial nuclear power, with 100 commercial reactors licensed to operate at 65 nuclear power plants and whose nuclear power comprised about 19.4% of the nation’s total electricity in 2013,[2] continued low natural gas prices will likely drive more plant closures, given the high maintenance and capital investment requirements for the ageing fleet. In contrast, nuclear power in South Korea is growing. The growth in nuclear power is particularly interesting, given the considerable public hostility towards nuclear power in South Korea following the 2011 Fukushima disaster in nearby Japan, as well as corruption scandals in its domestic nuclear industry. The trend of net nuclear electricity generation in the U.S. and South Korea can be found in Figure 1.

South Korea already ranks fourth in the world in nuclear power, following the US, France and Russia, and has the highest density of nuclear reactors in the world. Its 23 reactors provide almost one-third of the nation’s electricity, and its government aims to provide about half of the electricity from over 30 units by 2022.[3] Five new nuclear plants are under construction, and four new nuclear plants have been authorized this year. According to the government’s Second Basic Energy Plan from January 2014, which maps out the general national energy policies until 2035, the government aims to reduce total energy consumption by 13% and electricity demand by 15%.[4] The proportion of fossil energy would be reduced from 2011’s 65.5% to 52%, which would require the construction of more nuclear plants, resulting in a total of 41 nuclear plants in 2035. Read more »

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By Brian Park, Summer Legal Intern

seal-39732_640On June 11th, 2014, the Oregon Court of Appeals in Chernaik v. Kitzhaber reversed an Oregon trial court’s dismissal of a climate change challenge mounted under the public trust doctrine. The Court of Appeals ruled that the trial court was required to reach the merits of plaintiffs’ contentions that atmospheric resources constitute a public trust and that the state of Oregon, as a trustee, has failed to fulfill its fiduciary obligation to protect them from adverse impacts of climate change. Although it may seem a minor victory, this opinion represented a meaningful outcome to plaintiffs, coming as it did just six days after the outright denial of a federal public trust doctrine claim by the U.S. Court of Appeals for the D.C. Circuit in Alec L. v. Gina McCarthy.

This Oregon case is one of many across the country brought by Atmospheric Trust Legal Actions (ATL), a coordinated legal effort under the public trust doctrine supported by Our Children’s Trust (OCT) and other non-profit organizations on behalf of youth to compel governments to protect the atmosphere from the dangerous effects of climate change. The public trust doctrine, a common law doctrine that long predated modern environmental law, imposes a duty on governments to protect certain natural resources. The scope of coverage under the doctrine varies considerable from state to state, but in some states water, soil, ocean, seashores, and parklands can neither be privatized nor substantially damaged, but have to be held by the government in trust for the benefits of its citizens, at least unless the state legislature explicitly declares otherwise. ATL advocates are asking courts to apply the doctrine to recognize and protect the collective right to a stable and habitable climate, requiring the protection of the atmosphere as property of present and future generations. Read more »

July Updates to the Climate Litigation Charts

Posted on July 7th, 2014 by Shelley Welton

Update #64 July 2014


Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-US climate litigation charts. The July additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)


Utility Air Regulatory Group v. EPA, Nos. 12–1146, 12–1248, 12–1254, 12–1268, 12–1269, and 12–1272 (U.S. June 23, 2014): added to the “Challenges to Federal Action” slide. The United States Supreme Court ruled that the United States Environmental Protection Agency (EPA) had impermissibly interpreted the Clean Air Act as compelling or permitting a facility’s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA’s determination that “anyway” sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ “best available control technology” (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions “would place plainly excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court rejected EPA’s attempt to fix these problems by “rewriting” statutory emissions thresholds, which the Court said “would deal a severe blow to the Constitution’s separation of powers.” The Court went on to hold, however, that the Clean Air Act’s text clearly supported an interpretation that required BACT for “anyway” sources and that applying BACT to greenhouse gases “is not so disastrously unworkable” and “need not result in such a dramatic expansion of agency authority” as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source’s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase “any air pollutant.” Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it “curious” that the Court departed from a literal interpretation of “pollutant” in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for “anyway” sources. Read more »

By Alyssa Kutner, Summer Legal Intern                      

air-19417_640On June 30, 2014, the Environmental Protection Agency released a new Policy Statement on Climate Change Adaptation, building on the last policy statement released by the EPA in June 2011. In the statement, the EPA has developed a more direct, urgent tone in describing the initiatives to be taken in adapting to the changing climate while updating goals it set forth three years ago. The 2014 statement includes multiple references to human-induced climate change having a wide range of impacts; there were none in the 2011 statement. There is also a greater focus on creating a strong social infrastructure through community partnerships, and a more straightforward recognition that climate change is inevitable and must be prepared for. The EPA has found that in the time since the 2011 statement was released, “new and stronger evidence indicates that human-caused climate change is affecting people in every region of the U.S.”  Read more »

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By Alyssa Kutner, Summer Legal Intern

chimney-1733_640There has been a lot of discussion and press around the EPA’s new Clean Power Plan, which is intended to reduce CO2 emissions from existing power plants by 30% from 2005 levels by 2030. The EPA proposed this plan on June 2nd under its Clean Air Act §111(d) authority, which “requires states to develop plans for existing sources of noncriteria pollutants…whenever EPA promulgates a standard for a new source.”The EPA proposed greenhouse gas standards for new sources earlier this year, triggering the §111(d) requirement for existing sources. The EPA will review and approve or disapprove all state plans created under Section 111(d). Public comments and suggestions from states and other interested parties will be considered by the EPA as it refines its proposal over the next year. The rule is to be finalized in June 2015. This post focuses on one interesting element of this larger plan: the EPA’s decision to encourage states to keep old nuclear plants in operation, rather than decommissioning them. Read more »

By Isabelle Aubrun, CCCL Intern (Brown University)

On June 2, Secretary of the US Department of Housing and Development (HUD) Shaun Donovan announced the Rebuild by Design Competition’s six winners. Created by President Obama’s Hurricane Sandy Rebuilding Task Force in 2013, ‘Rebuild by Design’ awards HUD funding to infrastructure projects in locations hardest hit by Superstorm Sandy in 2012. Rebuild by Design drew engineers, designers, urban planners, local government officials and community members together to collaboratively identify regional vulnerabilities and devise creative, implementable solutions.

fallen-229864_640All six winning projects are committed to building a more ecologically, economically, and environmentally resilient coast. The competition sought “fundable and implementable” solutions specifically to rebuild in Sandy’s wake, as well as models that could protect New York and New Jersey from increasingly severe weather in coming years. Many hope that these design proposals will also serve as a model for coastal cities nationwide.[1] Read more »

By Ellii Cho, Summer Legal Intern

The National Environmental Policy Act of 1970 (NEPA) requires federal agencies to prepare environmental impact statements (EISs) for all “major Federal actions significantly affecting the quality of the human environment.”[1] This includes the issuance of federal permits. Even after an EIS is completed and a proposed project has been implemented, the acting agency may need to further prepare a supplemental environmental impact statement (SEIS) if there are substantial changes to the proposed project or if there is significant new information relevant to environmental concerns.

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By Hunter Book, Summer Legal Intern

chicago-143888_640On June 3, 2013, a group of lawsuits that generated significant interest among environmental lawyers were abruptly withdrawn.[1]  The cases notably alleged a novel theory of liability and duty of care regarding climate change projections.  In Illinois Farmers Insurance Co. v. Metro Water Reclamation District of Greater Chicago[2](and related cases found here,[3] here,[4] here,[5] and here[6]), Farmers requested class certification to represent all property insurance companies, affected policyholders, and other affected property owners in connection with severe rains that hit the Chicago area on April 17, 2014.  The suits alleged that the Reclamation District and Chicago-area governments breached their duty to store storm water safely and to remedy property damage from the resulting flood.  Farmers alleged that the Defendants were responsible for flood damage caused by the overflowing storm basins.  The Defendants allegedly determined the capacity needed to avoid floods with historical data that did not account for the effects of climate change.  Since the climate change projections indicate greater rainfall than in the past, the Defendants had a duty to plan for the increase.
Read more »

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