Climate Law Blog

By Romany Webb

Australia has a long, proud tradition of environmentalism. It is home to the second oldest national park in the world (after Yosemite) and was one of the first countries worldwide to adopt species protections. Despite this history, however, Australia has given up its leading position in recent years. This is especially true in the area of climate change, where Australia is at the very back of the pack, consistently ranking as one of the worst performers worldwide.

The Australian government has a modest goal of reducing climate-damaging greenhouse gas emissions by 26 to 28 percent below 2005 levels by 2030. It has, however, adopted few concrete policies to ensure achievement of that goal. For example, whereas other countries have mandated emissions reductions in electricity generation and other sectors, no such mandates have been adopted in Australia. Nor does Australia have any long-term plan for reducing its use of high-emitting fossil fuels in generation and other applications. That’s long been a concern for local environmentalists. It should also worry anyone with an interest in reliable electricity as, according to a new government-commissioned study (the “Finkel Report”) published on June 9, “[t]he lack of a transparent, credible and enduring emissions reduction mechanism for the electricity sector is now the key threat to system reliability.”

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By Romany Webb

It is well known that, to avoid the worst impacts of climate change, we must reduce the amount of carbon dioxide entering the atmosphere. Most carbon dioxide emissions result from the burning of fossil fuels – i.e., coal, oil, and natural gas – in electricity generation, transport, and other applications. It will, therefore, be necessary to replace fossil fuels with cleaner alternatives such as wind and other renewable resources. Unfortunately however, a complete phase out of fossil fuels is unlikely, at least in the immediate future. This raises the question: is there anything else we can do now to prevent an increase in atmospheric carbon dioxide levels? According to many scientists, the answer is yes.

Scientists have long discussed the possibility of capturing carbon dioxide at its source and injecting it into underground geological formations where it will (hopefully) remain permanently sequestered. This process, known as carbon capture and sequestration or CCS, has been successfully demonstrated in a number of studies. Its widespread use could allow us to continue burning some fossil fuels without adding to atmospheric carbon dioxide levels. This will, however, require the identification of suitable injection sites where carbon dioxide will not leak into the atmosphere. Research is currently being undertaken into the possibility of injecting carbon dioxide offshore, into geological formations underlying the ocean floor.

To complement the ongoing scientific research, the Sabin Center is today publishing a whitepaper, examining the regulatory framework for offshore carbon storage. The paper, which I co-authored with the Center’s Faculty Director Michael Gerrard, finds that the regulation of carbon storage projects differs depending on where they occur. Projects occurring within three nautical miles of the coast (or, in the case of Texas and the west coast of Florida, nine nautical miles) are regulated under the Environmental Protection Agency’s (“EPA’s”) Underground Injection Control Program. That program does not, however, apply to projects undertaken further from the coast.

There is currently no comprehensive regulatory regime for carbon storage projects undertaken more than three (or, in some cases, nine) nautical miles from the U.S. coast. Such projects are regulated under a patchwork of regulations, many of which were developed with other activities in mind, and are thus often poorly suited to carbon storage. Take EPA’s ocean dumping program, for example. The program was developed to address the problem of ocean pollution, but may have the unintended consequence of preventing offshore carbon storage, either entirely or without a permit from EPA. This is because, under the program, persons may dispose of material in the ocean only if they have received permits from EPA. A permit cannot, however, be issued by EPA where the material constitutes “industrial waste” generated by a manufacturing or processing plant. That could include carbon dioxide.

Even if an offshore carbon capture project is permitted under the ocean dumping program, it will still require various other approvals, including from the Bureau of Ocean Energy Management and Army Corps of Engineers. Due to the numerous agencies involved, the approval process is likely to be costly, in terms of both time and money. Adoption of new regulations, tailored to offshore carbon storage, may therefore be necessary for widespread deployment of this important technology. In the interim, we hope our report will prove useful to those interested in CCS, helping them to navigate the complex regulatory regime that currently applies to offshore projects.

Each month, Arnold & Porter Kaye Scholer LLP 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 CLIMATE CASE CHART SINCE UPDATE # 98.

FEATURED CASE

Environmental Groups Challenged President Trump’s Reversal of Prohibition on Future Oil and Gas Leases in Arctic and Atlantic Ocean Areas

Ten environmental groups filed a lawsuit in the federal district court for the District of Alaska challenging the portions of President Trump’s executive order of April 28, 2017 on “Implementing an America-First Offshore Energy Strategy” that purported to eliminate protections for lands in the Arctic and Atlantic Oceans. President Obama withdrew the lands from future oil and gas leasing in January 2015 and December 2016 pursuant to presidential authority under the Outer Continental Shelf Lands Act (OCSLA). The complaint noted that in withdrawing the lands, President Obama and the White House had cited a number of factors supporting the withdrawal, including the need to make a transition from fossil fuels to address climate change, stresses to Arctic species resulting from climate change, and the contribution of withdrawn Atlantic Ocean canyons to climate stability as well as threats to the canyons from climate change. In their complaint, the environmental groups asserted that President Trump’s executive order exceeded his constitutional authority and intruded on congressional authority under the Property Clause of the Constitution in violation of the separation of powers doctrine. They also asserted that his actions exceeded authority granted by OCSLA, which they argued did not authorize presidents to re-open lands for disposition once they had been withdrawn. League of Conservation Voters v. Trump, No. 3:17-cv-00101 (D. Alaska, filed May 3, 2017).

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by Justin Gundlach & Jessica Wentz 

By changing sea levels, coastlines, and patterns of precipitation, climate change is literally shifting the ground under the National Flood Insurance Program (NFIP), administered by the Federal Emergency Management Agency (FEMA).  Even as floodplains in many parts of the country (especially on the coasts) have grown, however, FEMA has never formally addressed the question of whether the NFIP induces development in floodplains, nor has FEMA developed standard protocols for informing communities and policyholders about how climate change could affect the risks they face from floods.

FEMA seemed poised to move on both of these issues several years ago, when it initiated a programmatic environmental review of the NFIP for that purpose, among others. Unfortunately, with its recently published Draft Nationwide Programmatic Environmental Impact Statement (DNPEIS) for the NFIP, FEMA appears to have reversed course. Specifically, FEMA DNPEIS ignores the impacts of the NFIP on floodplain development and thus also ignores how the NFIP has put communities and homeowners on a collision course with climate-related flood risks. Furthermore, FEMA’s DNPEIS fails to consider potential strategies to mitigate risks associated with flooding and climate change, such as providing advisory mapping information about sea level rise and possible future flood risks. This latter point is notable also because it runs counter to FEMA’s obligation under the Biggert-Waters Flood Insurance Reform and Modernization Act to consider and implement recommendations of the Technical Mapping Advisory Council (TMAC) – a body established to guide FEMA on matters related to the NFIP – which include providing such mapping information to communities and policyholders.

The Sabin Center has submitted comments to FEMA explaining why the National Environmental Policy Act (NEPA) requires it to consider the effects of the NFIP on floodplain development, and outlining the various climate change-related considerations that should be addressed in the final EIS. In particular, we urge FEMA to:

• Consider how climate change may exacerbate flood risk in areas currently covered by the NFIP and evaluate whether any changes in the NFIP are warranted in light of this analysis (e.g., FEMA may conclude that it is necessary to increase insurance premiums in coastal areas to account for heightened flood risk).
• Adopt some of the recommendations issued by the Technical Mapping Advisory Committee, such as that FEMA develop guidance and technical support tools to help local planners and individual property owners prepare for the effects of climate change. For example, we urge FEMA to adopt the TMAC’s recommendation to provide advisory maps showing how sea level rise scenarios will affect flood risk in coastal areas.
• Incorporate existing sea level rise and flood risk projections prepared by other federal agencies as well as state and local authorities into its evaluation of climate change impacts and possible response measures.

Our comments are available here.

by Justin Gundlach

What is green infrastructure (GI) and why does New York City need more of it?

Green roofs, bioswales, and porous pavers are all examples of GI (see images at right), which one article defines as “a network of approaches and technologies that mimic, maintain, or restore natural hydological features in the urban landscape.” What all forms of GI have in common is that they retain or detain stormwater, preventing it from just becoming runoff that flows into a sewer system. They generally also have a higher albedo and retain heat less efficiently than impervious materials (making GI a promising means of mitigating the urban heat island effect that will grow worse with climate change). In addition to slowing runoff and being cooler than conventional surfaces, GI also tends to improve buildings’ energy efficiency and, sometimes, ambient air quality as well.

New York, a city covered in impervious asphalt, concrete, roofing materials, and more, has several practical problems that GI can help address. One of those practical problems—the effect of stormwater runoff on the City’s wastewater treatment plants—has led to regular violations of the Clean Water Act. Those violations have in turn motivated the City to look to GI as a means of stemming the flow of stormwater runoff and, specifically, to try to replace impervious surfaces with GI wherever it is feasible and cost-effective to do so. On public property, this has meant a mushrooming of bioswales and the redesign of once-impervious parks. On private property, however, it has not meant much—not because the City’s Department of Environmental Protection is disinclined to install GI on private property, but because a thicket of issues tends to get in the way of efforts to spend public money on the installation of valuable assets on private property.

A new Sabin Center whitepaper examines this troublesome thicket of legal, administrative, political, and practical issues. In addition to describing their root causes and GI-stymieing effects, it also provides background on the benefits of GI and suggestions for what can be done at the city- and state levels to help bring more of those benefits to New York City via GI installations on private property.

By Michael Burger

Yesterday a group of 22 Republican senators led by James Inhofe and Mitch McConnell delivered a letter to President Trump declaring their view that the Paris Agreement stands as an impediment to his promise to undo the Clean Power Plan. Previous legal arguments along these lines have been refuted, and have apparently failed to persuade the administration to withdraw from the Paris Agreement. Now, these senators are taking a different tack, arguing that the Paris Agreement is a problem because of the existence of Section 115 of the Clean Air Act, the “International Air Pollution” provision. Their argument relies in part on a paper, for which I served as coordinating lead author, that laid out the case for using Section 115 to address climate change in the wake of the Paris Agreement. The senators fundamentally misconstrue the paper, and they are wrong on the law in two crucial ways, fatal to their cause.

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By Mike Burger & Justin Gundlach

Today, the Sabin Center and UN Environment have officially launched The Status of Climate Change Litigation – A Global Review. The report offers a (relatively) concise survey of decided and ongoing cases, an overview of salient trends, and descriptions of key issues that courts must resolve in the course of deciding different sorts of climate change cases. In addition to acting as a primer for those encountering climate change litigation for the first time, the report is also meant to provide researchers and practitioners with a basic conceptual framework and common source of terminology.

The report’s timing is no coincidence. As various articles and analyses have observed, climate change litigation is becoming an increasingly prominent and significant feature of the climate law and policy landscape. This seems to be the natural consequence of a decade’s worth of increasingly concrete and meaningful legislation and regulation aimed at climate change—lawmaking that recognizes new rights, creates new duties, and is subject to challenge by parties seeking greater ambition from policymakers or adversely affected by new obligations and restrictions. As we explain below the jump, the growing prominence of climate change litigation also seems to owe to other factors as well, such as the Paris Agreement’s role in national-level climate change policymaking debates in countries other than the United States.

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By Romany Webb

On Wednesday May 17, New York Governor Andrew Cuomo unveiled a new Methane Reduction Plan, designed to advance the state’s goal of reducing greenhouse gas emissions by 40 percent below 1990 levels by 2030. To date, state efforts have primarily focused on lowering emissions of carbon dioxide, which is the most prevalent greenhouse gas. The state has, however, recognized the need to also address methane emissions. Although methane is emitted in smaller quantities than carbon dioxide, it is much more potent, trapping up to 84 times more heat in the earth’s atmosphere in the first 20 years after it is released (on a per ton basis). Thus, according to the Governor’s office, “methane reduction is a key piece of New York’s policies to address the risks from climate change.”

The Methane Reduction Plan targets the three major sources of methane emissions: (1) the oil and gas sector, (2) agricultural producers, and (3) landfills. It identifies 25 actions to be taken across the three areas by the New York Department of Environmental Conservation (“DEC”), Department of Public Service (“DPS”), Energy Research and Development Authority, and Department of Agriculture. Interestingly, of those 25 actions, almost half are aimed at controlling emissions from the oil and gas sector. Those controls go significantly further than existing regulations at the federal level and may provide a model for other states looking to more tightly regulate oil and gas operations.

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By Romany Webb

    Abandoned gas well in Texas

Residents of Corpus Christi, a coastal town in southern Texas, are reeling this week after learning that methane has been leaking into their water supplies for at least five years. The source of the leak is two natural gas wells that were abandoned in the 1980s. Despite the fact that the leaking wells underlie the Choke Canyon Reservoir, one of Corpus Christi’s main water sources, officials say there’s no reason for concern as the methane is dispersing naturally and does not pose a fire or explosion risk. That is, however, small comfort for those concerned about climate change.

Methane is a highly potent greenhouse gas with a global warming potential 84 times that of carbon dioxide over a 20 year time horizon. It is the primary component of natural gas, the production of which has long been known to contribute to overall greenhouse gas emissions, as methane leaks from wells during drilling and completion. The reports from Corpus Christi suggest those leaks may continue long after the wells are abandoned. This is more likely to occur when a well has not been closed or “plugged,” which involves pumping cement or another substance into the wellbore to seal it at the top. The Texas Railroad Commission (“RRC”) estimates that there are currently over 1,300 unplugged wells across the state. The number is even higher here in New York, with the Department of Environmental Conservation (“DEC”) identifying 3,500 unplugged wells. In neighboring Pennsylvania, 8,200 unplugged wells have been identified. The entity responsible for those wells is often unknown, so plugging falls to state regulatory agencies. Unfortunately, their efforts are often hampered by a lack of financial resources.

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Today, the Sabin Center for Climate Change Law posted its Winter/Spring 2017 Semi-Annual Report, which includes a summary of the Center’s key activities between January and May 2017. It is available for download here.

Below are some highlights of the report:

• The Center launched three online databases – the Climate Deregulation Tracker, the State Attorneys General Environmental Actions database and Climate Change Laws of the World.
• The Center sponsored 7 events, most of which can be viewed on our YouTube channel.
• The Center published articles on a variety of topics. Papers include:
  • New York’s New Sea Level Rise Projections Will Affect Land Use, Infrastructure
  • Planning for the Effects of Climate Change on Natural Resources
  • Trump’s Executive Order on Regulatory Costs Undermines Congressional Authority
• The Center submitted a comment letter to EPA on its implementation of President Trump’s Executive Order on Enforcing the Regulatory Reform Agenda.

To learn more about our nine project areas (The Clean Air Act, Environmental Assessment, Energy Law, Adaptation, Securities and Climate Finance, Natural Resources, Human Rights, International and Foreign Law, and Threatened Island Nations), Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were featured, read the report here.