Jessica Wentz, Staff Attorney and Associate Research Scholar

Last week, I attended the Advisory Committee Workshop of the Platform on Disaster Displacement in Geneva. The Platform is the successor to the Nansen Initiative – a state-led global consultative process aimed at identifying effective practices and building consensus on normative standards for the protection of persons displaced across borders in the context of disasters and climate change. The Nansen Initiative culminated in the Nansen Protection Agenda, which was endorsed by 109 governmental delegations (including the U.S.) last year.

The Platform was created to follow up on the work started by the Nansen Initiative and to implement the recommendations of the Nansen Protection Agenda. It is governed by a Steering Group of states, currently directed by Germany; an Advisory Committee, which includes the Sabin Center as well as a variety of governmental, non-governmental, and academic stakeholders; and a Coordination Unit, which supports all aspects of the Platform’s activities.

The goal of last week’s Advisory Committee Workshop was to review the Platform’s Strategic Framework 2016-2019 and accompanying workplan and develop ideas for activities and project proposals to support the implementation of the workplan. Our work was organized around four strategic priorities:

  1. Addressing knowledge and data gaps on cross-border displacement;
  2. Enhancing the use of identified best practices for preventing displacement in the country of origin and protecting those who are displaced across borders;
  3. Promoting policy coherence and mainstreaming of human mobility challenges in and across relevant institutions and processes, such as the UN Human Rights Council, the International Organization for Migration, the United Nations Framework Convention on Climate Change, the Sendai Framework for Disaster Risk Reduction, and the New York Declaration for Refugees and Migrants.
  4. Promoting policy and normative development at national and regional levels to address legal gaps in the protection of persons displaced across borders.

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The Paris Agreement, which will enter into force on November 4, aims to keep the increase in global average temperatures to well below 2oC above pre-industrial levels. Achieving this goal will require the development of a wide array of new clean energy and other technologies. The deployment of these technologies and their transfer between countries, particularly from rich to poor, will be greatly affected by intellectual property law. These effects are explored in the recently published Research Handbook on Intellectual Property and Climate Change, edited by Joshua Sarnoff, a professor at DePaul University College of Law.

In his introduction to the handbook, Sarnoff observes that “technology, and its effective and efficient development and transfer, is a central focus of the book.” Underlying many of the chapters is a concern that technologies needed to address climate change may be subject to intellectual property rights which restrict their transfer and use. The initial chapters (2 to 7) provide a useful introduction to the problem of climate change and the technological shifts required to mitigate it, before exploring the intellectual property law regime in which these shifts will take place. This regime is further elaborated in later chapters (16 to 22), dealing specifically with patents, copyrights, trade secrets, and other areas of intellectual property law, relevant to the deployment of climate change mitigation technologies.

While intellectual property concerns lie at the heart of the book, it also considers other legal and policy issues likely to affect the impending technological shift. Chapters 11 to 15 explore various government and market-based approaches to promoting the development of new mitigation technologies. Approaches considered include government financing, procurement, and direct supply. Consideration is also given to the government’s role in correcting market failures that could impede technological development, with chapters focusing on antitrust law and international trade law.

As a whole, then, the book offers a useful introduction to the various issues affecting development and transfer of climate change mitigation technologies. It is particularly timely given the entry into force of the Paris Agreement, providing an interesting and accessible account of how intellectual property and other legal regimes may affect the technological shifts needed to achieve the Agreement’s 2oC goal. This is essential knowledge for all climate law scholars. As Sabin Center Faculty Director Michael Gerrard notes in his own review, the deployment of climate change mitigation technologies “will involve not only the environmental, energy and treaty laws familiar to climate law specialists, but also a bewildering array of issues under intellectual property, trade, procurement, and other legal fields. Joshua Sarnoff has done a wonderful job in assembling leading experts from around the world to illuminate these complex matters.”

The Research Handbook on Intellectual Property and Climate Change was published by Edward Elgar Publishing. 

Human Rights Safeguards for the UNFCCC’s New Climate Finance Tool

Posted on October 11th, 2016 by Jessica Wentz
Photo of the CDM-funded Costa Pinto Bagasse Cogeneration Project in Brazil

         Photo of the CDM-funded Costa Pinto           Bagasse Cogeneration Project in Brazil

Last week, the Sabin Center submitted comments to the United Nations Framework Convention on Climate Change (UNFCCC) Secretariat on the rules and modalities that will govern the new climate finance tool created under Article 6 of the Paris Agreement, the Sustainable Development Mechanism (SDM). We urged the UNFCCC to introduce safeguards to ensure that human rights will be respected throughout the implementation and operation of SDM-funded projects.

It is now well documented that some of the projects financed by the Clean Development Mechanism (the SDM’s predecessor) and other climate finance tools have resulted in human rights violations. The most egregious violations have occurred in the context of hydroelectric projects, which often result in forced displacement, and biofuel projects, which can lead to displacement as well as increases in local air pollution, food shortages, labor violations, and a host of other problems for local communities.  Several examples of projects that have failed to respect human rights are highlighted on the Carbon Market Watch website.

Similar violations could occur in the context of SDM-funded projects if the SDM rules and modalities do not require project developers and local authorities to fully respect the human rights of the people who are affected by these projects. The rights that must be respected include procedural rights, such as the right to information about the project and participation in decision-making processes, as well as substantive rights, such as the right to health. Unfortunately, the provisional agendas for the Marrakesh Conference do not currently include any mention of developing safeguards for the SDM or otherwise protecting human rights in this context.

Our comment letter discusses the importance of introducing SDM safeguards with reference to these past violations. It also describes the merits and shortfalls of safeguards that have been adopted for existing financial mechanisms, such as the Clean Development Mechanism, the Green Climate Fund, and the Adaptation Fund. The letter concludes with a list of recommendations describing how the UNFCCC can draw from and improve upon these existing programs to create a robust set of environmental and social safeguards to protect human rights in the context of SDM-funded projects. The recommendations are after the jump.
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Climate Change Litigation Charts Update – October 2016

Posted on October 4th, 2016 by Jessica Wentz

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 U.S. Climate Case Chart since Update #90.


Ninth Circuit Upheld Air Permit for Biomass Power Plant at Lumber Yard

The Ninth Circuit Court of Appeals upheld a Prevention of Significant Deterioration (PSD) permit for a biomass-burning power plant at a lumber mill in California. The Ninth Circuit concluded that the U.S. Environmental Protection Agency (EPA) had reasonably concluded that the Clean Air Act did not require consideration of solar power and a greater natural gas mix as control alternatives at the facility because doing so would impermissibly “redefine the source.” The Ninth Circuit also deferred to EPA’s application of its Guidance for Determining Best Available Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy Production (Bioenergy BACT Guidance). The court  said that this case appeared to be the first time a circuit court had addressed EPA’s framework for evaluating BACT for greenhouse gas emissions from biomass facilities and concluded that deference to the Bioenergy BACT Guidance was required because EPA was acting “at the frontiers of science.” Helping Hand Tools v. EPA, No. 14-72553 (9th Cir. Sept. 2, 2016): added to the “Stop Government Action/Project Challenges” slide.

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Romany Webb Joins the Sabin Center as New Climate Law Fellow

Posted on September 23rd, 2016 by Jessica Wentz

r-webb-photoLast week, Romany Webb joined the Sabin Center as our 2016-2018 Climate Law Fellow. Romany’s work with the Sabin Center will focus on climate change mitigation and explore the use of existing laws to control greenhouse gas emissions.

Romany joins us from the University of Texas at Austin School of Law, where she was a clinical instructor and research fellow. During her fellowship, Romany researched legal tools for minimizing the climate and other environmental impacts of energy development, particularly natural gas extraction. Prior to the fellowship, Romany worked at the University of California, Berkeley Energy and Climate Institute. Her role included advising members of Congress and the Administration on the scope of executive authority to address climate change.

Romany holds an LL.M., with a Certificate of Specialization in Environmental Law, from the University of California, Berkeley and an LL.B. from the University of New South Wales, Australia. Romany is admitted as a solicitor of the Supreme Court of New South Wales and, prior to moving to the U.S., spent several years working in private practice in the energy and water sectors. She was also a lecturer at the Australian National University and has written extensively on environmental law in Australia.

You can reach Romany at

Last week saw the opening of the 71st session of the United Nations (UN) General Assembly. In his inaugural address, incoming General Assembly President Peter Thompson declared that the session would focus on advancing the seventeen Sustainable Development Goals (SDGs), adopted in September 2015. The SDGs form part of the UN’s 2030 Agenda for Sustainable Development, which aims to eradicate poverty and ensure prosperity for all, such that everyone “can fulfill their potential in dignity and equality and in a healthy environment.” Achieving this laudable aim will require action to promote economic growth, while ensuring social inclusion and environmental protection.

But balancing these economic, social, and environmental ideals is easier said than done, particularly in the era of climate change. In this new era, questions abound regarding what constitutes “sustainable” development and how to achieve it. Central to these questions is the role of fossil fuels, which have long been seen as the backbone of economic growth, but now threaten to interfere with international climate goals.

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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 litigation charts since update #88:


Seventh Circuit Upheld Department of Energy’s Reliance on Social Cost of Carbon for Efficiency Standards

The Seventh Circuit Court of Appeals upheld the United States Department of Energy’s (DOE’s) energy efficiency standards for commercial refrigeration equipment, including DOE’s analysis of the standards’ environmental benefits based on the Social Cost of Carbon (SCC). The court concluded that DOE had “acted in a manner worthy of our deference.” The court found that the analytical model upon which the standards were based and DOE’s cost-benefit analysis were supported by substantial evidence and not arbitrary and capricious. The court also said that DOE’s cost-benefit analysis was within its statutory authority. With respect to environmental benefits and the SCC, the court rejected the petitioners’ argument that the Energy Policy and Conservation Act did not permit consideration of environmental factors and also the petitioners’ contention that DOE’s calculation of the SCC was “irredeemably flawed.” The court also rejected arguments that DOE had improperly considered long-term environmental benefits such as carbon reductions but not long-term costs such as worker displacement and that DOE arbitrarily considered global benefits but only national costs. Zero Zone, Inc. v. United States Department of Energy, Nos. 14-2147 et al. (7th Cir. Aug. 8, 2016): added to the “Challenges to Other Federal Action” slide
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In a new working paper, Executive Director Michael Burger presents a “Mitigation-Based Rationale for Incorporating a Climate Change Impacts Fee into the Federal Coal Leasing Program.” The paper makes several key points about the rationale for introducing such a fee, most notably, that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this mitigation option, such as what metrics should be used to establish an appropriate fee and how a fee might work with carbon sequestration efforts and other emissions offsets.

The paper is intended to inform the scope of the mitigation measures that Interior and BLM will consider in their programmatic environmental review of the federal coal leasing program, and has been submitted directly to these federal agencies.  While others have explored the question of whether the coal leasing program should put an effective price on carbon, primarily through an increased royalty rate, this is the first in-depth exploration of a mitigation-based approach that operates through the agencies’ authority and obligations under NEPA, FLPMA and the Mineral Leasing Act. It complements several other Sabin Center initiatives and projects aimed at informing the programmatic coal review, including our recent conference, “US Coal in the 21st Century: Markets, Bankruptcy, Finance and Law”, a comment letter on the scope of issues that should be covered in the review, and our work on accounting for upstream and downstream emissions in NEPA reviews.

The full paper is available here, and an executive summary is available here.

Payal Nanavati
Columbia Law School Class of ‘17

Climate change has already begun to force elements of the electric grid to operate in conditions materially different from those for which they were designed. Persistent high temperatures, heavy or reduced precipitation, extreme weather events, and sea-level rise can all affect grid operations. The state and federal regulators tasked by state law with ensuring that consumers have access to “safe and reliable electricity at just and reasonable rates” should address these vulnerabilities by prioritizing the grid’s adaptation—a task that requires anticipating environmental changes and identifying technologies capable of making the grid less vulnerable and more resilient amid those changes.

This new chapter is written for advocates seeking to persuade utility commissions that a more thorough integration of adaptation considerations into the design and operation of the electric grid will increasingly be indispensable to the provision of cost-effective electricity services.

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Progress Towards an HFC Amendment to the Montreal Protocol

Posted on August 15th, 2016 by Jessica Wentz

by Michael Choi, Summer Intern

Last month, the United States delegation led international efforts to initiate a Hydrofluorocarbon (HFC) amendment to the Montreal Protocol at meetings which took place from July 15th-23rd. The Montreal Protocol, which was adopted on September 16, 1987, is an international agreement to phase out the production and consumption of ozone depleting substances in order to reduce their abundance in the atmosphere and protect the stratospheric ozone. As noted by U.S EPA Administrator Gina McCarthy, the Montreal Protocol is regarded “as the most successful environmental treaty” since it has led to the 97% reduction in the production and import of ozone depleting substances throughout the world.

HFCs are fluorinated greenhouse gases that are used commonly in refrigeration, air conditioning, aerosols, fire protection systems and solvents.  They have become increasingly prevalent because they serve as a substitute for the ozone-depleting substances that are being phased out under the Montreal Protocol, such as chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs). Although HFCs have not been proven to directly harm the ozone layer, they are extremely potent greenhouse gases.

The Montreal Protocol can be amended to ban substitutes for ozone depleting substances that harm the environment, even if the substances may not negatively impact the ozone layer.  On November 6, 2015, the 197 parties that signed the Montreal Protocol pledged to monitor and limit the usage of HFCs and to pass an amendment by the end of 2016 regarding the phase out of HFCs. The parties did not reach a final agreement on the text of the amendment at last month’s meetings, but they hope to do so by October. According to EIA international, over 100 parties, including the US and EU, have now expressed support for an ambitious agreement with a HFC consumption freeze beginning in 2021.

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