Climate Law Blog

By Amy Turner and Michael Burger Cities around the U.S. have long demonstrated leadership on climate change, with more than 170 of them having set targets to phase out fossil energy and many others committing to net zero greenhouse gas emissions. American cities, towns, counties, and other forms of local government have pioneered path-setting approaches to […]

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 […]

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 […]

By Ruth Santiago and Michael B. Gerrard* This opinion piece was first published in The Hill. It is available here.  The Biden administration faces a choice that could advance two of its core objectives — fostering environmental justice and fighting climate change. Puerto Rico’s already troubled energy system was devastated by Hurricane Maria in 2017 and a […]

By Amy Turner Yesterday, the U.S. District Court for the Northern District of California issued a long-awaited decision in California Restaurant Association v. City of Berkeley. The decision essentially – and subject to possible appeals – answered in the negative the question of whether Berkeley’s first-in-the-nation prohibition on natural gas hookups to newly-constructed buildings (often […]

By Jennifer Danis In a major decision, Environmental Defense Fund v. FERC, et. al (here) the D.C. Circuit ruled in favor of the Environmental Defense Fund in its challenge to the Federal Energy Regulatory Commission’s decision making on the Spire Pipeline, holding that FERC requires more than private, self-dealing contracts to find public need to […]

By Amy Turner   This week marked significant growth for the building electrification movement, as the legal pathways in use by local governments to catalyze electrification doubled in number. Previously, local governments had pursued building electrification through building code provisions requiring or incentivizing electrification expressly, or through affirmative “bans” on natural gas hookups to new […]

In order to achieve the greenhouse gas reductions needed to sustain a livable climate, we must scale up renewable energy capacity at a rapid pace. Wind and solar energy facilities emit no air pollution and have minimal environmental effects as compared to fossil fuel plants, but like all types of development, renewable energy projects do […]

By Hillary Aidun On January 20 of this year we launched the Climate Reregulation Tracker to follow the Biden-Harris administration’s progress in undoing its predecessor’s assault on climate change policy by reinstating, expanding and building upon previous climate actions. Three months into the new administration, what has been accomplished so far? Key priorities are addressed […]

FEATURED CASE
 
Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies
 
The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies. The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.” City of New York v. BP p.l.c., No. 18-2188 (2d Cir. Apr. 1, 2021).