This month, Jacob Elkin joins the Sabin Center as the 2021-2022 Climate Law Fellow. His work at the Sabin Center will include the Renewable Energy Legal Defense Initiative, the Climate Attribution Database, the Climate Reregulation Tracker, the New York State and City Climate Law Trackers, as well as submitting comment letters on administrative proceedings.

Jacob graduated from Columbia Law School in 2021, where he was awarded the Alfred S. Forsyth Price for dedication to the advancement of environmental law. While there, Jacob participated in the Environmental Law Clinic and served as the Managing Online and Symposium Editor for the Columbia Journal of Race and Law. His student Note, Environmental Justice and Pennsylvania’s Environmental Rights Amendment: Applying the Duty of Impartiality to Discriminatory Siting, was published in Volume 11 of the Columbia Journal of Race and Law. He holds a B.A. from the University of Chicago.

Maria Antonia Tigre also joins the Sabin Center as a Global Climate Litigation Fellow, where she will oversee the Non-US Climate Litigation Database, as well as conduct research into emerging trends, theories and developments in global climate change litigation.

Prior to the Sabin Center, she was a senior attorney at the Environment Program of the Cyrus R. Vance Center for International Justice, where she provided pro bono legal services to NGOs across the globe, especially in issues related to protected areas and the interface between human rights and the environment. She was also a fellow at the Word Resources Institute after having worked for several years in private practice.

Maria Antonia serves as the Director of Latin America for The Global Network for the Study of Human Rights and the Environment, is a member of the IUCN World Commission on Environmental Law, and also coordinates the environmental rights research group at the Global Pandemic Network.

In addition to being the author of several publications on regional and international environmental law, she is also a TEDx speaker and a frequent speaker at conferences and symposiums.

Maria Antonia is currently an S.JD. candidate in international environmental law at the Elisabeth Haub School of Law at Pace University. She received a dual LL.M., magna cum laude, with certificates in environmental law and comparative legal studies, from the Elisabeth Haub School of Law at Pace University, in 2013. She received her LL.B. from the Pontifícia Universidade Católica of Rio de Janeiro, Brazil.

We are thrilled to have Jacob and Maria Antonia on board and look forward to sharing their work soon.

By Hillary Aidun

The summer of 2021 underscored that we are all affected by climate change impacts, whether in the form of heatwaves, fires, or extreme flooding. But some Americans are more affected than others. Urban centers are hotter than rural areas due to urban heat island effect, a phenomenon caused by pavement, buildings, and other surfaces in cities that absorb and retain heat. In the United States, urban heat island effect results in a temperature difference of up to 7.2 degrees between cities and their surrounding rural areas. Moreover, within cities, extreme heat disproportionately harms communities of color and low-income communities. As climate change continues to raise baseline temperatures and make deadly heat waves more likely to occur, addressing urban heat island effect has become an urgent issue.

For this reason, cities are increasingly interested in adopting “smart surfaces.” The term refers to a set of surface technologies that allow cities to better manage sunlight and rainwater. While cities have many policy options for expanding smart surfaces, they also face certain legal barriers. In a white paper published today, the Sabin Center for Climate Change Law examines those barriers and seeks to offer potential solutions to local governments. Read more »

September 2021 Updates to the Climate Case Charts


Posted on September 10th, 2021 by tiffanychalle

By Margaret Barry and Korey Silverman-Roati

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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 149.

FEATURED CASE

D.C. Circuit Found Deficiencies in Climate Change and Environmental Justice Analyses for Texas LNG Export Terminals

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) failed to adequately analyze the climate change and environmental justice impacts of two liquefied natural gas (LNG) export terminals on the Brownsville Shipping Channel in Texas and two pipelines that would carry LNG to one of the terminals. The court dismissed a challenge to a third LNG terminal on the Channel as moot after the developer informed FERC that the project would not go forward. With respect to climate change, the D.C. Circuit found that FERC failed to address the significance of a National Environmental Policy Act (NEPA) regulation that the petitioners argued required use of the social cost of carbon or another methodology to assess the impacts of the projects’ greenhouse gas emissions. The regulation provides that “[i]f … information relevant to reasonably foreseeable significant adverse impacts cannot be obtained … because the means to obtain it are not known, the agency shall include within the environmental impact statement … [t]he agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.” The D.C. Circuit agreed with the petitioners that FERC was required to address the significance of this regulation and directed FERC to explain on remand whether the regulation calls for application of the social cost of carbon protocol or another framework. The D.C. Circuit also found that FERC arbitrarily limited the scope of its environmental justice analysis to communities within two miles of the facilities despite acknowledging that impacts would extend beyond a two-mile radius. Because of the deficiencies in the NEPA analyses, the court also found that FERC’s determinations of public interest and convenience under the Natural Gas Act (NGA) were deficient. The court remanded without vacatur, finding that it was reasonably likely that FERC could redress the deficiencies under NEPA and the NGA on remand and that vacating FERC’s orders “would needlessly disrupt completion of the projects.” In an unpublished judgment, the court rejected the petitioners’ other NEPA arguments regarding project design and capacity and cumulative ozone impacts. Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1045 (D.C. Cir. Aug. 3, 2021); Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, Nos. 20-1093, 20-1094 (D.C. Cir. Aug. 3, 2021).

Read more »

States Prohibiting Natural Gas Bans Feign Concern for “Energy Choice”


Posted on September 9th, 2021 by tiffanychalle

By Hillary Aidun and Claire Hodges, 

As Senior Fellow Amy Turner documented last year, a number of local governments around the country have moved to prohibit natural gas hookups in buildings. These prohibitions are part of cities’ broader effort to participate in the transition away from fossil fuels. However, some state governments have blocked those local measures, preventing municipalities from enacting natural gas bans. Legislators pushing proposals to preempt local gas restrictions often claim the mantle of defending consumers’ “energy choice.”

A story published this summer in E&E News revealed that the term  “energy choice” was coined by a consortium of gas utilities that have put their heads together to develop talking points for legislators. And it has always been clear that “energy choice” is not the true motivation behind state preemption of natural gas bans. To see this, one need only look at other energy policies in the very states that have prohibited local restrictions on natural gas. Many of those states have also taken steps to block development of renewable energy—giving lie to the notion that pro-natural gas legislators are concerned about “energy choice.”

For example, in the past two years, Oklahoma, Alabama, Texas, Kentucky, and Kansas have adopted legislation preempting local natural gas bans. Those same states, however, have made it difficult or impossible for consumers to purchase electricity from renewable energy sources. In 2014, SB 1456 became law in Oklahoma, allowing utilities to charge higher rates to consumers generating electricity through small-scale solar panels or wind turbines. Alabama has one of the highest solar fees in the country, which was approved in 2020. Last year Kentucky enacted SB 100, which increased electricity rates for solar consumers. In July of this year, Texas Governor Greg Abbott directed the Public Service Commission to raise the price of electricity from renewable energy sources. Kansas had a law levying fees on solar consumers until the state supreme court declared it discriminatory last year. These measures to make renewable energy uneconomical all create a burden on consumers who would choose to receive their electricity from wind or solar energy sources.

Meanwhile, Ohio and Wyoming have recently adopted legislation prohibiting local governments from banning natural gas hookups and legislation aimed at sinking new renewable energy projects. Last year Wyoming enacted SF 36, which effectively gives local governments veto power over new large-scale wind and solar energy projects. Similarly, this summer Ohio enacted SB 52, which requires new wind or solar projects to receive approval from local counties in addition to the state siting board. In both states, fossil fuel projects do not need to clear the new regulatory hurdles, which are likely to block new renewable energy facilities.

These anti-renewable policies underscore that concern for “energy choice” is not the real impetus behind prohibitions on local gas bans—and, coupled with our research on local efforts to halt wind and solar energy projects, make painfully clear the need to actively support renewable energy in order to achieve an emission-free electricity grid.

By Korey Silverman-Roati and Romany M. Webb

The Sabin Center today released the second in a series of white papers discussing legal issues associated with different ocean-based carbon dioxide removal techniques. Today’s paper focuses on seaweed cultivation—i.e., the growing of kelp and other macroalgae which may be harvested for food, bioenergy, or other uses or sunk in the ocean to sequester the carbon it contains. The first paper in the series discussed ocean alkalinity enhancement for carbon dioxide removal.

To date, most carbon dioxide removal research has focused on terrestrial-based approaches, but they often have large land requirements and may present other risks and challenges. This has led to increased interest in using the oceans which have already absorbed about 30% of human carbon dioxide emissions since the Industrial Revolution. Carbon storage in the oceans could be further increased through large-scale seaweed cultivation. Like terrestrial plants, seaweed uptakes carbon dioxide from the atmosphere as it grows and stores it in biomass. To offset emissions, cultivated seaweed could be used to replace more greenhouse gas-intensive products, or could be sunk in the deep sea. If the seaweed is sunk towards the deep-sea floor, the biomass-stored carbon may be sequestered for centuries to millions of years.

Seaweed cultivation may also have climate adaptation and environmental co-benefits. Dense seaweed areas may be able to protect other organisms from ocean acidification, can provide oxygen-rich habitats, and can buffer against coastal erosion. However, because large-scale cultivation has not been implemented in many regions, its ultimate environmental impacts, including potential harms to local ecosystems, are not well understood.

The Sabin Center’s new white paper analyzes the international and U.S. legal frameworks applicable to research and deployment of seaweed cultivation for the purposes of carbon dioxide removal and storage. While there are currently no international or U.S. federal laws dealing specifically with seaweed cultivation, various general environmental and other laws could apply to projects. At the international and regional levels, these include the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, and the Protocol to that Convention, the Convention on Biological Diversity, the United Nation Convention on the Law of the Sea, and the European Union Marine Strategy Framework Directive.

Read more »

Reducing pollution from the transportation sector is one of the most important steps to sustaining a livable climate. The transportation sector is the leading source of greenhouse gas emissions in both the United States and New York. Cars, trucks and buses also emit other harmful air pollutants that more immediately contribute to public health threats such as asthma, heart disease, and premature death. These negative impacts are concentrated in low-income communities and communities of color, which are often located near highways, transportation depots, and freight hubs.  In addition to being disproportionately exposed to air pollution and affected by related health problems, these communities often have inadequate access to public transportation options, which limits access to health care, services, and jobs.

In response to these climate and equity challenges, the Transportation and Climate Initiative (TCI) seeks to reduce greenhouse emissions from the transportation sector while investing in communities that are overburdened by transportation pollution and underserved by transit. The initiative seeks to reduce greenhouse through a cap-and-invest model that taxes fuel providers and reinvests the proceeds in clean transportation. Four jurisdictions (Rhode Island, Massachusetts, Connecticut and the District of Columbia) have signed a Memorandum of Understanding committing to the TCI program. Nine other states, including New York, are considering joining the program.

Read more »

Environmental Rights in State Constitutions


Posted on August 31st, 2021 by Romany Webb
 1 comment  

By Michael B. Gerrard

Photo by Mark Koch on Unsplash

The constitutions of more than three-quarters of the countries on earth have explicit reference to environmental rights or responsibilities  In the last several years courts in the Netherlands, Germany, France, Australia, Pakistan, Nepal and Colombia have held that these provisions, or similar non-statutory doctrines, require national governments to act on climate change.

Not so in the United States.  The U.S. Constitution has no explicit right to a clean environment, and efforts to persuade judges to find an implied right have not succeeded.  Most recently, in the famous Juliana v. United States case, plaintiffs sought an order directing the federal government to slash the nation’s greenhouse gas emissions.  The district court in Oregon in 2016 seemed to favor such a right, but a divided Ninth Circuit concluded in 2020 that the plaintiffs lacked standing. (The plaintiffs are now back in the district court seeking much more modest relief.)

However, the constitutions of six states do have provisions with explicit environmental rights – Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island.   Several other states’ constitutions have language about protecting the environment, but without clearly creating any rights.  Most of these provisions were enacted in the early 1970s during that great period of environmental lawmaking, but they received relatively little attention until a 2013 decision by the Pennsylvania Supreme Court, Robinson Township v. Commonwealth, which used the state constitution’s Environmental Rights Amendment to invalidate a state statute that had prevented municipalities from barring hydraulic fracturing.

Read more »

By Romany M. Webb and Korey Silverman-Roati

Ocean alkalinity enhancement (OAE) is one of several proposed techniques for removing carbon dioxide from the atmosphere and storing it in the oceans. As a result of natural processes, the oceans have already absorbed around 30% of all carbon dioxide emitted by humans since the start of the Industrial Revolution, helping to reduce the rate of climate change. This natural absorption has, however, also led to ocean acidification which threatens corals, crustaceans, and other calcifying organisms by making it more difficult for them to build their skeletons and shells. OAE seeks to counteract ocean acidification, while also increasing carbon storage in the oceans. In OAE, alkaline materials such as ground rock are added to ocean waters, increasing pH levels (and thus reducing acidity) and enabling greater uptake of carbon dioxide. After a series of chemical reactions, the carbon dioxide ends up stored in carbonate sediments on the ocean floor, likely for tens of thousands of years.

OAE has the potential to remove large amounts of carbon dioxide from the atmosphere which, together with emissions reductions, would help to mitigate climate change. OAE also presents risks, however. For example, some materials proposed for use in OAE contain heavy metals, which could contaminate ocean waters and harm marine organisms. They could also act as fertilizers, stimulating the growth of certain organisms, and thereby disrupting ecosystems. Field trials in the ocean are needed to fully assess these and other effects and verify the long-term carbon storage potential of OAE. Such research and any subsequent deployment of OAE could raise a host of legal issues.

The Sabin Center’s latest white paper – Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges and Opportunities – analyzes the international and domestic (U.S.) legal frameworks for OAE research and deployment. As explained in the paper, there are currently no international or U.S. laws specifically governing OAE, but a number of general environmental and other laws could apply. At the international level, potentially applicable instruments include the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, and the London Convention and Protocol on Ocean Dumping. Our paper provides an in-depth analysis of whether, when, and how those and other international agreements and customary international law will apply to OAE. We also discuss the application of domestic laws, such as the federal Marine Protection, Research, and Sanctuaries Act, Clean Water Act, Coastal Zone Management Act, and National Environmental Policy Act.. As we show, none of these laws were developed with OAE in mind, creating significant uncertainty as to how projects will be treated. Much is likely to depend on exactly where and how projects are conducted. Some projects could be subject to multiple permitting and other requirements, which could create challenges for developers and add time, cost, and uncertainty.=

Read the full paper here.

Related work: The Sabin Center is preparing a series of white papers examining legal issues associated with carbon dioxide removal and storage. Previous papers have discussed the legal framework for carbon removal via enhance weathering, as well as carbon storage in the sub-seabed off the east and west coasts of the United State and the west coast of Canada. For more information about this and other related work, visit our website here.

In January 2021, the Sabin Center released a paper discussing key legal challenges and opportunities associated with both OAE and seaweed cultivation for the purposes of carbon dioxide removal. This paper builds on that prior work. It focuses solely on OAE and includes additional analysis of applicable customary international law, state permitting and other requirements, and issues relating to tribal rights (among other additions). Separate papers analyzing the international and domestic legal frameworks for seaweed cultivation, artificial upwelling and downwelling, and ocean fertilization for carbon dioxide removal are currently in development. This work is generously supported by ClimateWorks Foundation.

Carbon Storage in the Bipartisan Infrastructure Bill


Posted on August 10th, 2021 by Romany Webb
 1 comment  

By Romany M. Webb

This week’s IPCC report is another stark reminder of the need to dramatically reduce greenhouse gas emissions to avoid climate disaster. While the U.S. has started down the path of decarbonizing its economy, there remains significant work to do, and many challenges ahead. Some sectors, including certain heavy industries and freight transport, will be hard to fully decarbonize. To the extent those sectors continue emitting carbon dioxide and other greenhouse gases, those gases will need to be captured prior to release into the atmosphere. Most climate models suggest that it will also be necessary to remove previously emitted carbon dioxide from the atmosphere – a process known as carbon dioxide removal – to stay within the 1.5 to 2oC target set in the Paris Agreement. This necessarily raises the question: what should be done with all of the carbon dioxide?

Some have proposed using carbon dioxide for enhanced oil recovery or to produce fuels or other products, but the climate benefits of such utilization are uncertain. Another option is to store the carbon dioxide in a way that prevents its release (or re-release) into the atmosphere. One promising option involves injecting carbon dioxide into underground basalt rock formations, where it would rapidly mineralize and become solid carbonate rock. There are large basalt formations, capable of storing massive amounts of carbon dioxide, in the sub-seabed off the U.S. coast. However, under existing law, those formations likely could not be used for carbon storage. The INVEST in America Act (also known as the bipartisan infrastructure bill) that just passed the Senate could change that if it becomes law.

Read more »

Community Group Welcomes Step Forward for Solar Energy in New York


Posted on August 4th, 2021 by hillaryaidun

By Hillary Aidun

On Wednesday, August 4, the New York Board on Electric Generation Siting and the Environment (Siting Board) approved a 100-megawatt solar facility in New York State. The Flint Mine Solar Project will displace up to 4.9 million metric tons of carbon dioxide-equivalent greenhouse gas emissions over its lifetime and infuse $15 million directly into the local economy through payments to participating landowners. The Siting Board’s decision was celebrated by a group of local farmers, residents, and other stakeholders called Friends of Flint Mine Solar, which has advocated for the project for years. Read more »

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