After Madrid, W[h]ither the COP?


Posted on January 17th, 2020 by Tiffany Challe

By Susan Biniaz

With Madrid behind us and Glasgow on the horizon, it is a good time for Parties and others to consider the future of the annual COP. (By “COP,” I mean the climate conference writ large, rather than the “Conference of the Parties,” the narrower technical name for the Parties to the UN Framework Convention on Climate Change.) Madrid, while a remarkably successful venue in terms of logistics, left many not only disappointed at the Parties’ failure to reach agreement and signal an increase in ambition but also confused:

o  Why was there such a disconnect between the scientific imperative (as well as the public outcry) and the official outcome?

o  Why were the Parties unable to reach agreement, when the remit was so much smaller than the previous year and the compromises fairly apparent?

o  Did the issuance by a subset of Parties of “principles” they intend to follow have broader significance for climate governance?

o  Why was it like pulling teeth to get an important climate issue (the ocean/climate nexus) considered by the Parties to what is supposed to be the foundational agreement on climate change?

o  Why were emerging issues (e.g., law of the sea implications of sea level rise, carbon removal technologies) discussed only on the sidelines?

o  On the whole, why did the side events seem more like the main event?

Moving forward, these and other questions are likely to be in the minds of COP Presidents, Parties, and climate watchers as they conceptualize, and set expectations for, future COPs.  The design of the Paris Agreement will also be relevant.  With its implementing guidance (the “rulebook”) nearly completed, and its contributions nationally determined, there will be much less for the Parties to negotiate.  This puts a higher premium on other aspects of COPs, particularly their ability to catalyze national action and international support (financial, capacity-building, etc.), and may also affect the type of government representatives that need to attend the annual conference.

In short, 2020 provides an important opportunity to imagine the features of an ideal COP, recognize (and address, if possible) the challenges, and set out a desirable yet workable vision.

Read the full working paper here.

January 2020 Updates to the Climate Case Charts


Posted on January 10th, 2020 by Tiffany Challe

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 # 129.

FEATURED CASE

Trial Court Ruled for Exxon in New York’s Climate Change Securities Fraud Case

After a 12-day trial, a New York court found that the New York Office of the Attorney General failed to establish by a preponderance of the evidence that Exxon Mobil Corporation (Exxon) made any material misstatements or omissions that misled any reasonable investor about its practices or procedures for accounting for climate risk. The court therefore denied claims asserted under the Martin Act—New York’s securities fraud statute—and Executive Law § 63(12), which prohibits repeated or persistent fraudulent acts. Although the court granted the attorney general’s request to discontinue its common law and equitable fraud claims with prejudice, the court also said its decision established that Exxon would not have been held liable on any fraud-related claims since the attorney general failed to establish Exxon’s liability even for causes of action that did not require proof of the scienter and reliance elements of fraud. The court found that Exxon’s public disclosures in the 2013 to 2016 time period at issue in the case—including Form 10-K disclosures and March 2014 reports specifically addressing climate change risk and regulations that were prepared in consideration for withdrawal of shareholder proposals—were not misleading. The court said one of the March 2014 reports identified proxy costs of carbon and GHG costs as “distinct and separate metrics,” one of the factors leading the court to reject the premise of the attorney general’s case that Exxon’s disclosures “led the public to believe that its GHG cost assumptions for future projects had the same values assigned to its proxy cost of carbon.” The court also found that an analyst’s testimony undercut the attorney general’s assertion that information in the March 2014 reports was material to investors and found the attorney general’s expert testimony on materiality to be unpersuasive, “flatly contradicted by the weight of the evidence,” and “fundamentally flawed.” People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Dec. 10, 2019).

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Five Points About the Proposed Revisions to CEQ’s NEPA Regulations


Posted on January 10th, 2020 by Tiffany Challe

By Jessica Wentz and Michael Burger

On January 9 the Council on Environmental Quality (CEQ) published a proposal to dramatically overhaul the federal regulations governing environmental reviews under the National Environmental Policy Act (NEPA). The proposal represents a significant departure from CEQ’s prior interpretation of NEPA as well as decades of agency practice, case law, and guidance consistent with that interpretation. Rather than promoting transparency, public engagement, and informed decision-making consistent with the policy set forth in NEPA, the proposal aims to curtail environmental analyses, limit disclosures to the public, and expedite federal approvals for major projects, including fossil fuel supply infrastructure.

Although the proposed regulations do not explicitly mention “climate change” there are many provisions that would potentially limit or even eliminate analysis of climate change-related issues for fossil fuel extraction leases and infrastructure, such as natural gas pipelines. Here are five key points about the proposal and its implications for fossil fuel projects and analysis of climate change-related issues:

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Municipal Natural Gas Bans: Round 1


Posted on January 9th, 2020 by Amy Turner

By Amy Turner

In July 2019, Berkeley, California made news with the first-ever municipal ban on new natural gas hookups in the U.S. Hailed as “momentous” and a “landmark move,” Berkeley’s ordinance inspired other municipalities in California and beyond to consider and enact similar bans. At latest count, more than 50 municipalities – mostly in California and Massachusetts – have considered or enacted an all-electric requirement for new construction. Though they differ in their details — some exempt uses such as cooking ranges, laboratories and more; some include major renovations in addition to new construction — these bans are largely aligned with local climate action planning and municipal goals to reduce greenhouse gas emissions. They are also giving rise to legal questions and challenges. This post offers a quick survey of the state of play.

Authority under applicable state law

The bans in California and Massachusetts rely on different sources of authority. Many of the California bans are structured as amendments to the local building codes. In that state, municipalities are permitted to adopt building energy code provisions that are more stringent than the state code with California Energy Commission approval. San Jose, Menlo Park, San Mateo, West Hollywood and Santa Monica, and Marin County have obtained this approval, while other municipalities have proposals pending before the Commission. Berkeley took a different approach, relying on its local police powers to ban natural gas connections, and the city of Morgan Hill followed Berkeley’s lead. Berkeley later supplemented its police power ban with updates to the local building energy code (still pending approval before the CEC).

In Massachusetts, where municipalities generally do not have the authority to augment the state building energy code, the tension between state and municipal authority takes a different form. Brookline’s ban relies on its “its home rule powers and its police powers” under Massachusetts law, which include the authority to “direct[] and manag[e] their prudential affairs” and to “regulat[e] the inspection, materials, construction, installation, alteration or use of pipes, fittings and fixtures through which gas is supplied within buildings.” Because Brookline is a town, Massachusetts law requires that it submit the by-law implementing the ban to the state attorney general’s office for approval, which is pending.

Massachusetts cities, which are not subject to the same attorney general approval as towns, also face unresolved questions about their authority to implement natural gas bans. The Cambridge city attorney shared her office’s view with the city’s council that the a ban on new natural gas hookups would be preempted by state building code law. This has not deterred some city lawmakers, including a Cambridge city council member who told Inside Climate News that “if this boils down to a fight in court over whether or not we ban gas, I welcome the fight.”

Other localities are waiting in the wings. The city of Newton appears poised to take the same tack as Cambridge, while the town of Lexington has indicated it will wait to see the outcome of the attorney general’s review of the Brookline ban.

Court challenges

Not surprisingly, litigation has been filed to challenge these local government actions.

In November, the California Restaurant Association sued the city of Berkeley seeking to enjoin that city’s ban.[1] The complaint claims that the Berkeley ban is preempted by the U.S. Energy Policy and Conservation Act, or EPCA, which preempts state and local promulgation of energy efficiency standards for certain household appliances such as furnaces, air conditioners, water heaters, dishwashers, clothes washers and dryers, kitchen ranges and ovens and more. (See 42 U.S.C. §§ 6297(a) and 6292.) The California Restaurant association also claims in its suit that the Berkeley ban is preempted by the California Building Standards Code and the California Energy Code, and that Berkeley should not have relied on its police power but rather pursued approval from the California Building Standards Commission or the California Energy Commission for an update to the building or energy code. As noted above, Berkeley has sought CEC approval for an electrification component in its “reach code” to supplement the ban; it is not yet clear whether or how this will impact the litigation.

The building code and energy code amendment approach is also being challenged in court. Two local home builders have filed suit[2] against the town of Windsor, CA’s ban – structured as an amendment to the local building energy code –  alleging, among other things, that the municipality failed to properly consider under the state’s environmental review statute hazards and reliability concerns that could result from increased electrification, particularly in the face of increasing wildfires.

These cases, though in preliminary stages, may influence future municipal efforts and the lawsuits challenging them.

More opposition

Municipal natural gas bans offer an area ripe for continued opposition by the natural gas industry and others. An industry group has indicated it will file suit challenging the Brookline, MA ban. Some environmental advocacy organizations have suggested that natural gas interests may be behind the California Restaurant Association suit in Berkeley. Natural gas groups are also intervening at the local level. For example, opposition letters came in from such groups in the days before the Brookline vote. A California gas company has also apparently funded “grass-roots” anti-ban advocacy in that state as well. Other interest groups have also expressed reservations about these natural gas bans, leading Seattle to table voting on a proposed ban there while it considers input from labor and industry groups. Given the essential interest of the natural gas industry in maintaining the ability to connect to new customers, we are sure to continue seeing anti-ban advocacy during the lawmaking process and in the courts.

The Cities Climate Law Initiative is continuing to monitor developments in the promulgation of municipal bans on new natural gas hookups and related litigation in order to help advise municipalities on structuring such bans, or electrification requirements, in their jurisdictions.

[1] Cal. Restaurant Ass’n v. City of Berkeley, Case No. 3:19-cv-07668 (N.D. Cal. 2019).

[2] Gallagher v. Town of Windsor, Docket No. SCV-265553 (Cal. Super. Ct. Nov 19, 2019) and Windsor Jensen Land Company, LLC v. Town of Windsor, Docket No. SCV-265583 (Cal. Super. Ct. Nov 22, 2019).

 

 

December 2019 Updates to the Climate Case Charts


Posted on December 6th, 2019 by Tiffany Challe

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 # 128.

FEATURED CASE

Supreme Court Denied Publishers’ Petitions in Climate Scientist’s Defamation Case; Alito Issued Written Dissent

The U.S. Supreme Court denied two petitions for writ of certiorari seeking review of a D.C. Court of Appeals decision that allowed climate scientist Michael Mann to proceed with a defamation lawsuit against the authors and publishers of articles attributing scientific misconduct to Mann. Justice Alito issued a written dissent asserting that the questions raised by the petitioners “go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” Alito wrote that one of the questions raised—whether a court or a jury should determine the truth of allegedly defamatory statements—was a “delicate and sensitive” question that “has serious implications for the right to freedom of expression,” especially given the “highly technical” matter at issue in this case and the “intense feelings” that the issue of climate change arouses in the jury pool. Alito also said the petitioners raised the “very important question” of where to draw the line between “a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day” (which Alito said would be protected by the First Amendment and “a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false” (which the First Amendment would not protect). Alito noted that he recognized that the D.C. court’s decision was “interlocutory” and that an ultimate outcome adverse to the petitioners could be reviewed later, but he said requiring a “free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden.” National Review, Inc. v. Mann, No. 18-1451 (U.S. Nov. 25, 2019); Competitive Enterprise Institute v. Mann, No. 18-1477 (U.S. Nov. 25, 2019).

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12 Legal Tools to Push Climate Preparedness


Posted on December 5th, 2019 by Tiffany Challe

By Michael B. Gerrard

This blog is based on a talk given to the Climate Change: Response and Resilience Leadership Forum at Columbia University on November 20, 2019, sponsored by RenaissanceRe.

We know that, mostly as a result of climate change, extreme weather events are becoming more frequent and severe.  Reducing greenhouse gas emissions should be the highest priority, but that won’t be enough to prevent severe impacts, some of which are already occurring. Here are twelve ways the law can help society cope with these impacts.

  1. Flood maps – The Federal Emergency Management Agency should update its flood maps and make them reflect anticipated future climate conditions, not just past experience.
  2. Disclose flood risks – Prospective buyers of property should be given information about any flood risks faced by the property.
  3. Environmental impact assessments – Environmental reviews under the National Environmental Policy Act and its state counterparts should consider the climate conditions expected at the end of a project’s useful life, not just at the start, to help ensure the project can withstand those conditions.
  4. Public utility regulation – Other states should follow the lead of the New York Public Service Commission in requiring major utilities (in this case, Con Edison) to study expected future climate conditions going out decades, and prepare plans to cope with those conditions in order to maintain reliability.
  5. Permit conditions – Several statutes require permit holders to have and implement plans to prepare for extreme events – e.g., Clean Air Act; Clean Water Act; Oil Pollution Act; Resource Conservation and Recovery Act. The Conservation Law Foundation is pushing these requirements in lawsuits in Massachusetts and Rhode Island.
  6.  Securities disclosure – As required (but not enforced) by the Securities and Exchange Commission, and as advanced by the Task Force on Climate-Related Financial Disclosures, public companies should disclose the physical risk to their facilities and operations from climate change.
  7.  Heat – To cope with the dangerous heat conditions to come, cities should require landlords, including of public housing, to provide air conditioning or otherwise keep apartments cool enough to not endanger health. They should also require suitably-shaped roofs to be white, green, or topped with solar panels; and they should require large-scale tree planting.
  8. Building codes – Codes should require buildings to be designed and built so as to withstand anticipated flooding, wildfires, and other risks.
  9. Inspections – Flooding-vulnerable infrastructure such as levees and dams should be inspected frequently and repaired when needed.
  10. Toxic sites – The remediation of contaminated sites under the Comprehensive Environmental Response, Compensation and Liability Act and other programs should reflect future flood risk.
  11. Architects’ training – The states’ architects licensing boards should require architects to take continuing education courses on climate risks.
  12. Managed retreat – Though politically toxic almost everywhere, cities that are vulnerable to future extreme flooding should begin planning to retreat from shorelines and riverbanks that will become uninhabitable, and to relocate uses to safe areas.
 2 comments  

By Romany Webb

On Friday, November 22, the Sabin Center submitted comments opposing an Environmental Protection Agency (“EPA”) proposal to rescind regulations limiting methane emissions from new oil and natural gas facilities (the “Methane New Source Performance Standards” or “Methane NSPS”). The primary component of natural gas, methane is emitted throughout the oil and gas production process, primarily through accidental leaks and intentional venting. The emissions make a significant contribution to climate change because methane is a highly potent greenhouse gas which, in the first 20 years after it is released, traps approximately 84 times more heat in the earth’s atmosphere than carbon dioxide (on a per ton basis). Methane also contributes to the formation of ground-level ozone which is itself a heat-trapping greenhouse gas and, when inhaled by humans, can trigger a variety of health problems from throat irritation and coughing to bronchitis, asthma, and reduced lung function.

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By Madeleine Siegel and Alexander Loznak

Climate change is already generating enormous costs to the environment and public health both in the United States and around the world. These costs will only escalate over time with increasing greenhouse gas (GHG) emissions.  Under the National Environmental Policy Act (NEPA), U.S. federal agencies must assess the environmental effects of proposals for major federal projects, plans and programs before deciding if they should proceed. To conduct a meaningful environmental review of proposed projects, federal agencies must carefully consider how these projects contribute to climate change and greenhouse gas emissions—particularly for projects concerning fossil fuel extraction, transport, and use. The courts have established that NEPA includes obligations to consider climate change effects. Under the Obama administration, the Council for Environmental Quality sought to clarify those obligations by issuing guidance on how NEPA analysis and documentation should address GHG emissions. The Trump administration has sought to roll back and replace those recommendations, raising new questions about how federal agencies have assessed, and will continue to assess, climate change effects during environmental review.

To evaluate how federal agencies are addressing climate change in environmental reviews under NEPA, this report surveys federal environmental impact statements (EISs) and environmental assessments (EAs) completed in 2017-2018 for projects related to fossil fuel production, processing, and transport. In total, the report reviews sixteen EISs and ten EAs which met these criteria within the selected timeframe. The report focuses on fossil fuel project proposals because of their contributions to greenhouse gas emissions.

Top-level findings from the survey include:

  • When reviewing proposals for coal, oil, and gas extraction, agencies did typically quantify both direct and indirect emissions from the proposal, including emissions associated with the combustion of the produced fuels. However, in resource management plans that would open federal lands for fossil fuel extraction, the reviewing agency did not quantify emissions.
  • There are no instances in which agencies determined that the impact of fossil fuel leasing on greenhouse gas emissions would be “significant” despite predicting that these leases would generate millions of tons of carbon dioxide equivalents (CO2e).
  • Projects found to have “insignificant” environmental effects would collectively contribute substantial greenhouse emissions.Although federal agencies produce EAs exclusively for proposed projects which have been determined not to have significant impacts, the ten EA projects alone would contribute between 654 and 683 million metric tons of CO2e over their lifetime, approximately one-tenth of the annual GHG emissions of the entire United States.
  • Agencies rarely quantify the cumulative emissions of the proposed action when added to other recent and reasonably foreseeable federal leases for fossil fuel production. While the majority of surveyed EISs and EAs disclose GHG emissions quantitatively, or in some instances only qualitatively, most do not contain a more comprehensive analysis of how fossil fuel production on public lands will affect fossil fuel consumption and greenhouse gas emissions in the aggregate.
  • Agencies fail to account for the public health and environmental costs of GHG emissions with a social cost of carbon metric and rarely consider opportunities to mitigate GHG emissions associated with a project.Less than one-sixth of the analyzed environmental reviews mention commitments to reducing GHG emissions. Further, the reviewing agencies do not estimate the social costs to better understand the magnitude of the emissions’ impacts in any of the surveyed documents.

 

Read the executive summary and full report here.

 

November 2019 Updates to the Climate Case Charts


Posted on November 6th, 2019 by Tiffany Challe

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 # 127.

FEATURED CASE

State and Local Government Climate Cases to Proceed Against Fossil Fuel Companies in State Courts After Supreme Court Declined to Stay Remand Orders

On October 22, 2019, the U.S. Supreme Court denied fossil fuel companies’ application for a stay pending appeal of a district court’s remand order returning Baltimore’s lawsuit seeking to hold the companies liable for impacts of climate change. The application was presented to Chief Justice Roberts, the circuit justice for the Fourth Circuit, who referred the application to the Court. The Court’s order denying the application indicated that Justice Alito did not take part in the consideration or decision of the application. Also on October 22, the circuit justices for the First Circuit (Breyer) and Tenth Circuit (Sotomayor) denied applications from fossil fuel companies for stays pending appeal of remand orders in cases brought by Rhode Island and Colorado municipal governments. The companies’ appeal of the remand order in Baltimore’s case has been fully briefed in the Fourth Circuit and is scheduled for oral argument on December 11. As of November 5, the district court in Maryland had not yet issued an order to lift its temporary stay on the remand order. In the Rhode Island case, the federal district court issued a text order granting the motion to remand two days after the Supreme Court denied a stay. The companies’ brief in their First Circuit appeal of the remand order is due on November 20. The federal district court in the Colorado case notified the state court of the remand order on October 8, immediately after denying oil and gas companies’ emergency motion for a stay. Other developments in governmental climate change cases against fossil fuel companies included the scheduling of oral argument in the Second Circuit for November 22 in New York City’s case. BP p.l.c. v. Mayor & City of Baltimore, No. 19A368 (U.S. Oct. 22, 2019); BP p.l.c. v. Rhode Island, No. 19A391 (U.S. Oct. 22, 2019); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 19A428 (U.S. Oct. 22, 2019); City of New York v. BP p.l.c., No. 18-02188 (2d Cir. Sept. 30, 2018).

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By Arianna Menzelos

Columbia University–a multi-campus institution of over 44,000 employees, residents, and students–has significant impact on New York’s carbon footprint as well as on national leadership in sustainability. As one of the largest private landowners in the City of New York, Columbia’s institutional decisions directly impact local and regional emissions levels. Two recent legislative developments–the City’s Local Law 97 and the State’s Climate Leadership and Community Protection Act–have the potential to profoundly implicate Columbia’s facilities and sustainability planning. Local Law 97 provides mandates that govern building emissions in New York and has explicit implications for campus infrastructure alterations. In contrast, as the specific requirements of the Climate Leadership and Community Protection Act will not be clear until an implementation plan is issued in two years. Both laws will eventually require the campus to lower its carbon footprint. As a leader in climate research and education, Columbia should not only follow but also embrace the goals of these landmark pieces of environmental legislation.

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This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

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