The Columbia Environmental Law Clinic wins a critically important case involving the regulation of greenhouse gas emissions in Massachusetts.

Today, the Massachusetts Supreme Judicial Court released a unanimous decision ordering the state’s Department of Environmental Protection (DEP) to take additional measures to implement the 2008 Global Warming Solutions Act. Specifically, the Court held that DEP must impose volumetric limits on the aggregate greenhouse gas emissions from certain types of sources and that these limits must decline on an annual basis.  The Columbia Environmental Law Clinic was one of the groups representing the plaintiffs in this case.

The case involved a provision of the Global Warming Solutions Act requiring DEP to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” DEP claimed that it had complied with this provision through several regulatory initiatives, such as the Regional Greenhouse Gas Initiative cap and trade program. The court disagreed, finding that these initiatives did not satisfy the requirements of the Act because they did not entail the imposition of legally binding mass-based emission caps that declined on an annual basis. The court noted that two of the programs involved rate-based emission limitations, which were not sufficient for compliance because they did not ensure actual reductions in aggregate emissions.  Thus, the court held that DEP must promulgate new regulations to implement this provision of the Act.

The plaintiffs had also argued that the requirement to limit “aggregate” emissions from sources or source categories should be interpreted as requiring the establishment of annual statewide emission caps that cover all sources of greenhouse gas emissions. The court disagreed with this argument, holding that the Act only requires DEP to establish limits on aggregate emissions from “multiple” sources, not all sources.

The court concluded by noting that the regulatory programs cited by DEP “are important to the Commonwealth’s overall scheme of reducing greenhouse gas emissions over time” but more must be done to attain “actual, measurable, and permanent emissions reductions” required by the Act. It is now up to DEP to decide how to proceed with implementing its statutory mandates.

The Supreme Judicial Court’s decision in this case, Kain et al. v. Massachusetts Department of Environmental Protection (DEP), is available here.

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New York’s 2014 Community Risk and Resiliency Act (CRRA) instructs the Department of State and the Department of Environmental Conservation to create model local laws thatGundlach Warrent cover local governments can use in developing and implementing climate change adaptation policies related to sea level rise and flood risk. The Sabin Center’s new resource, Local Law Provisions for Climate Change Adaptation, complements the state agencies’ ongoing efforts by compiling existing provisions of state and local laws—and suggesting some new ones—that can help local governments looking to adapt effectively to these climate impacts. The provisions are broadly divided into the categories of Permitting Review, Targeted Development Restrictions and Prudent Development, and Shoreline Protection/Armoring. They codify a host of policies, ranging from giving due consideration to sea level rise to imposing setbacks on development approvals to creating transferable development rights schemes that support adaptive reconfigurations of existing and planned structures.

Publication of the state-authored model local laws document is expected later this year.

Justin Gundlach
Climate Law Fellow

In an opinion issued on May 11, 2016, a two-judge panel of India’s Supreme Court chastised that country’s federal and regional governments for their recent responses to severe India drought 1droughts, which the Court said contravene key provisions of the National Disaster Mitigation Act of 2005 (DM Act). The case was brought in challenge to refusals on the part of federal and regional government authorities to acknowledge or respond to severe drought conditions across large parts of country. The Court was careful to explain that its criticisms relate to unwillingness on the part of government authorities rather than ineffectiveness:

A candid admission does not imply a loss of face or invite imputations of ineffective governance – it is an acknowledgement of reality. An ostrich-like attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of society. The sound of silence coming from these States subjects the vulnerable to further distress. During the hearing of this public interest petition, no one alleged a lack of effective governance, only the lack of an effective response and therefore we are at a loss to understand the hesitation of these States.

The Court’s 53-page opinion made no mention of climate change, but did acknowledge what it called the “changing face of drought in India,” characterized by rainfall and drought conditions in unexpected places and at unexpected times of year. Given the growing susceptibility of India’s population to harms arising from drought, sea level rise, and air pollution, it is easy to see how subsequent petitions or statements in other contexts could analogize to the Court’s analysis with regard to climate change-related impacts.

The Court also issued several instructions, listed below the jump.

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In recent months, there has been a growing succession of actual and proposed investigations into fossil fuel companies, and their purported collaborators, over whether these groups lied to the public or investors about the risks of climate change.

The investigations come amid a series of reports that the fossil fuel industry – Exxon Mobil in particular – participated in a longstanding campaign of “disinformation, denial and delay” to sow doubt about climate change and undermine climate science findings. Most prominent among these accounts are from September and October 2015, in InsideClimate News and the Los Angeles Times, which detailed a $30 million, multi-decade effort led by Exxon Mobil to promulgate doubt about climate change, despite evidence that the company knew as early as 1977 that its product was contributing to climate change. Another report, released in April 2016 by the Center for International Environmental Law (CIEL), provides documents showing that Exxon and other fossil fuel companies participated in studies on fossil fuel burning and climate change starting in the 1950s. CIEL also claims that fossil fuel companies had longstanding initiatives “to use science and public skepticism to prevent environmental regulations they deemed hasty, costly and unnecessary.” Read more »

oil rigBy Jessica Wentz and Michael Burger

The Bureau of Ocean Energy Management (BOEM) has proposed a leasing program to continue oil and gas production on the Outer Continental Shelf (OCS) for the next five years. BOEM estimates that the program could result in the production of up to 13,139 million barrels of oil and 39,218 billion cubic feet of natural gas. Unlocking these new carbon reserves could undermine our ability to achieve key climate goals, including the internationally agreed upon target of  limiting global warming to “well-below” 2 °C and preferably 1.5°C. Unfortunately, the draft programmatic environmental impact statement (PEIS) for the lease sale plan fails to address this critical issue.

Earlier this week we submitted a comment letter urging BOEM to consider the following key issues in the final PEIS for the OCS leasing program:

  • Downstream GHG Emissions: The draft PEIS contains no discussion of emissions from the transportation or end-use of oil and gas produced under the proposed program. This is inconsistent with federal guidance and case law requiring agencies to consider such downstream emissions in environmental review documents for projects involving fossil fuel extraction. (See our working paper on this topic). We urge BOEM to include emissions from both transportation and end-use in its GHG inventory and to use this information to decide whether and how to proceed with the leasing program. Accounting for end-use emissions is particularly important given the scale of this action—using data from EPA, we estimate that the oil and gas produced under the program could generate up to 8.3 billion metric tons of CO2 when combusted. This is equivalent to the GHG emissions generated from 1.7 billion passenger vehicles in a year, or the electricity use in 1.2 billion homes in one year.
  • Social Cost of Carbon: BOEM conducted a cost-benefit analysis for the proposed program that is incorporated by reference into the draft PEIS. Without any explanation, BOEM excluded greenhouse gas emissions from its valuation of environmental costs. We urge BOEM to use the social cost of carbon and other available tools to assign a cost value to both direct and indirect greenhouse gas emissions from the proposed program so that these costs are fully accounted for in its decision-making process.
  • Consistency with Federal Policies and Commitments: Our final recommendation is that BOEM consider whether the proposed program, in light of all greenhouse gas emissions, is consistent with federal policies and commitments, including: (i) our Intended Nationally Determined Contribution (INDC) to the UNFCCC, under which we have pledged to reduce economy-wide greenhouse gas emissions by 26-28% below 2005 levels by 2025; (ii) the attainment of the 2 °C / 1.5 °C global warming target (taking into account the fossil fuels that must be left in the ground to meet that target); and (iii) the Clean Power Plan, which will drive a shift towards cleaner fuel sources in the electricity sector.

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by David Markell
David Sive Visiting Scholar, fall 2016

The legal environment for local government indmarkell Florida is beginning to change when it comes to sea-level rise (sometimes referred to as SLR). Innovations in institutional structure and governance strategies are underway in the State as well. This paper, Sea-Level Rise and Changing Times for Florida Local Governments, reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others. It begins with the State’s decision, in 2011 legislation, to give local governments a new, optional tool – referred to as “Adaptation Action Areas” (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The paper then turns to a second piece of Florida legislation, this one enacted in 2015, which also identifies sea-level rise as a concern but this time mandates that local governments begin to address it and other causes of flood-related risks through their comprehensive planning process. Finally, the paper discusses a third initiative, launched in 2009 by four Southeast Florida counties – Miami-Dade, Broward, Palm Beach, and Monroe – to foster local government and regional coordination on sea-level rise and other climate change issues. This review of these three developments provides a relatively in-depth starting point for understanding key features of the emerging legal and institutional landscape in Florida for addressing sea-level rise, especially with respect to comprehensive planning. It thereby contributes to filling an enormous knowledge deficit concerning adaptation initiatives.

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by Michael Gerrard, Faculty Director

Coffin opinionYesterday Magistrate Judge Thomas Coffin of the U.S. District Court of Oregon recommended denial of motions to dismiss a suit brought by a group of young people who alleged that excessive carbon emissions are threatening their future. The plaintiffs also include Dr. James Hansen, who is named as a guardian for plaintiff “future generations.” The case is Kelsey Cascade Rose Juliana v. United States. It is one of the numerous suits organized by Our Children’s Trust.

The Magistrate Judge emphasized that, on a motion to dismiss, he was accepting all the complaint’s allegations as true. In view of that, among the notable aspects of his Findings and Recommendation, linked here:

  • “Given the allegations of direct or threatened harm, albeit shared by most of the population or future population, the court should be loath to decline standing to persons suffering an alleged harm of a constitutional magnitude,” citing US v. SCRAP.
  • “[P]laintiffs differentiate the impacts [of climate change] by alleging greater harm to youth and future generations… Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society… [T]he intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”
  • With respect to redressability, “Assuming plaintiffs are correct that the United States is responsible for about 25% of the global CO2 emissions, the court cannot say, without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm.” Here the Magistrate Judge cited the Hague trial court decision in Urgenda Foundation v. State of Netherlands.
  • Rejecting the political question defense, “The complaint does raise issues of whether government action/inaction violates the Constitution and these issues are committed to the courts rather than either of the political branches.”
  • A substantive due process claim has been adequately pled. “Plaintiffs allege that the defendants’ action in this case has created a life-threatening situation and that defendants have willfully ignored long-standing and overwhelming evidence of that impending harm to the young and future generations.”
  • “At this stage of the proceedings, the court cannot say that the public trust doctrine does not provide at least some substantive due process protections for some plaintiffs within the navigable water areas of Oregon. Accordingly, the court should not dismiss any claims under the public trust doctrine to that extent.”

The document from Magistrate Judge Coffin is in the form of Findings and Recommendation to the district judge. It gives the parties 14 days to file written objections, to be followed by 14 days for responses to the objections. Then the district court will issue its judgment or order, and only then can an appeal be taken to the Ninth Circuit.

If these recommendations are adopted by the district court and upheld on appeal, the case will have opened up a major new front on climate litigation. This is all worth following closely.

Oil DrillThe Sabin Center has recently posted a working paper, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA ReviewThe paper was co-authored by Executive Director Michael Burger and Associate Director and Fellow Jessica Wentz and will be published in the Fall 2016 edition of the Harvard Environmental Law Review.

The paper explores a question that is currently being litigated in various federal circuits and is of critical importance to the future of climate action in the United States: When agencies are conducting environmental reviews for fossil fuel extraction and infrastructure projects, does the National Environmental Policy Act (NEPA) require consideration of greenhouse gas emissions from activities that occur “downstream” from the proposed action, such as the combustion of the fossil fuels, and emissions from activities that occur “upstream” from the proposed action, such as the extraction of the fossil fuels?  This question is an essential one, because it can significantly affect the balance of costs and benefits of a proposed project and an agency’s ability to justify the approval of the project in light of that balance. It can also influence broad, programmatic decisions about public lands management, energy infrastructure and transportation networks.

In the paper, we argue that upstream and downstream emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provide recommendations on how agencies can account for such emissions in a manner that will improve federal decision-making, shield agencies from liability, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.

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Cities Across the U.S. Support Clean Power Plan in Amicus Brief

Posted on April 1st, 2016 by Justin Gundlach

by Michael Burger and Justin GundlachBrief thumbnail

This morning the Sabin Center filed an amicus brief in support of EPA’s Clean Power Plan on behalf of a coalition of local government representatives including the National League of Cities, the U.S. Conference of Mayors, and 54 U.S. cities, counties, and mayors. (Check the end of the post for a complete list of  “Local Government Coalition” members). The brief is available here.

As America’s “first responders” to climate change local governments have a unique and critical perspective on the need for immediate and ambitious climate action: they are experiencing and adapting to climate impacts, including sea level rise, heat waves, and floods; and they are at the forefront of efforts to reduce the anthropogenic emissions of greenhouse gases. EPA’s Clean Power Plan, which targets the existing power plants that are America’s largest source of greenhouse gas emissions, would achieve a 32 percent reduction in greenhouse gas emissions from 2005 levels by 2030. The state and industry challengers to the Plan, by contrast, posit an interpretation of the Clean Air Act which would either achieve a 0 percent reduction—because it would bar EPA from regulating GHGs from existing power plants altogether—or else something in the single digits. From the cities’ vantage point, it is obvious that EPA’s interpretation is both the preferred course of action, and a reasonable interpretation of the Clean Air Act. The Clean Power Plan would greatly aid their individual efforts to address the changing climate. Should it be rejected, those efforts would be made more expensive and less likely to succeed.

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NY Solar PanelsJessica Wentz
Associate  Director and Fellow

On March 14, the New York State Senate released a FY 2017 budget proposal that would divert $138 million from the Regional Greenhouse Gas Initiative (RGGI) auction proceeds to the state budget, including $23 million to the general fund, $100 million to subsidize the operations of certain nuclear power plants that are no longer financially viable, and $15 million for a workforce development program.

The amount that the Senate has proposed diverting from the RGGI fund for FY 2017 is more than 80% of the total value of RGGI auction proceeds earned by New York in FY 2016 (which totaled approximately $166 million). As detailed in the RGGI investment plan, these funds are typically used to support energy efficiency and renewable energy programs in New York State. This is not the first time that the legislature has diverted RGGI proceeds for other purposes—it also diverted $90 million in 2009 and $41 million in 2015 to the general fund. If the Senate proposal is approved, the diversions will total $269 million—nearly 30% of the $925.8 million in auction proceeds that have been collected since the program was launched in 2008.

These diversions are inconsistent with New York State regulations aimed at ensuring the proceeds of the auctions would be spent on new programs to further reduce greenhouse gas emissions. The regulations require that the auction proceeds be placed in a segregated funding account that is managed by the New York State Energy Research and Development Authority (NYSERDA) and used “to promote and implement programs for energy efficiency, renewable or non-carbon emitting technologies, and innovative carbon emissions abatement technologies with significant carbon reduction potential.”
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