Climate Law Blog

Guest blog by Andrew Ratzkin*

The time for a carbon tax is now.  The coronavirus hasn’t just created the opportunity; it’s created the imperative.

The Imperative.  State budgets are in crisis.  Revenues—whether derived from sales taxes, individual and corporate income taxes, capital gains, dividends, tolls, airport fees, mass transit fares, hotel stays, casinos, real estate transactions, you name it—are in free fall.  While expenses—health care, procurement of medical equipment like ventilators, masks and gowns, unemployment insurance, police overtime, national guard deployments, emergency services, and more—are exploding.

Already draconian cuts to essential services like education and Medicaid—in the middle of a healthcare crisis, no less—are planned because, unlike the Federal government, states cannot run deficits.  States need new revenue sources, and fast.  In New York, Governor Cuomo recently projected the impending budget gap to grow to $15 billion after all the coronavirus bills come due, potentially requiring a 50% cut in education and other spending if lost revenue is not replaced.[1]  The prospect of the Federal government filling this void seems doubtful at best.

State-level or regional carbon taxes could be an important part of the answer.  By one calculation, a state tax of, say, $35 per ton of carbon emissions, could raise approximately $4.4 billion per year for New York[2]—not the entire answer, but potentially a big part of the solution.  Until recently, many advocates favored revenue-neutral carbon taxes—meaning that proceeds would be returned to taxpayers by rebate or other offsets; that policy and political calculus has now been superseded by events.

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Today, the Sabin Center filed an amicus brief on behalf of local governments in support of state and environmental petitioners in American Lung Association v. EPA, the lawsuit challenging the Environmental Protection Agency (EPA)’s repeal of the Clean Power Plan and the dangerously weak replacement rule.

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By Hillary Aidun and Malia Libby

Last Tuesday, April 14, thirteen states, New York City, and the District of Columbia sued the Department of Energy (DOE) to challenge revisions to the rule governing energy efficiency updates. A similar suit was filed by a coalition of green groups. As discussed below, DOE’s new “process rule,” if allowed to stand, will result in enormous and needless increases in greenhouse gas emissions—following a pattern of dangerous energy efficiency rollbacks by the Trump DOE.

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By Romany Webb

A new report from the International Energy Agency (IEA), published on March 31, shows that global methane emissions from the oil and gas sector increased by nearly four percent from 2018 to 2019. That trend could continue in 2020 and beyond due, in part, to the economic downturn resulting from the COVID-19 pandemic. While the downturn is widely expected to lead to a decline in carbon dioxide emissions, it could have the opposite effect on emissions of methane, with the IEA noting that lower oil and gas prices “could mean that producers pay less attention to efforts to tackle methane.” For example, oil producers will have less incentive to capture and sell associated natural gas, which is primarily methane, and may simply vent it to the atmosphere. Similarly, natural gas producers may put off fixing leaks because the cost of doing so now exceeds the value of the captured gas.

Ideally, regulation would operate as a backstop to prevent this type of environmentally damaging behavior, but that’s unlikely in this case. As I have previously written, there are currently few direct regulatory controls on methane emissions from oil and gas production at the federal level, and those that do exist are under attack from the Trump administration. While the administration has so far left in place other regulations, which indirectly address emissions from downstream operations (e.g., natural gas transport and storage), it is unlikely to strictly enforce them. Indeed, on March 20, the Pipeline and Hazardous Materials Safety Administration (PHMSA) announced that during the COVID-19 pandemic it will “exercise discretion in its overall enforcement of . . . [natural gas] pipeline safety regulations.” Those regulations include provisions governing pipeline leak detection and repair, which could be delayed as a result of PHMSA’s action, leading to higher methane emissions.

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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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 132.

FEATURED CASE

Fourth Circuit Affirmed Remand of Baltimore’s Climate Change Case Against Fossil Fuel Companies; Companies Sought Supreme Court Review and Argued for Limited Relevance in Other Pending Appeals

On March 6, 2020, the Fourth Circuit Court of Appeals declined to reverse a remand order that returned the City of Baltimore’s climate change case against fossil fuel companies to state court. The district court had rejected all eight of the defendants’ grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to the issue of whether the defendants properly removed the case under the federal officer removal statute. The Fourth Circuit cited decades-old Fourth Circuit precedent limiting the scope of review of remand orders to grounds specifically exempted from the statutory bar on appellate review, including federal-officer removal. The court rejected the defendants’ argument that a Supreme Court decision on the scope of interlocutory review had abrogated this precedent. The Fourth Circuit also concluded that the Removal Clarification Act of 2011 did not authorize “plenary review” of remand orders. Regarding the application of federal-officer removal in this case, the Fourth Circuit found that none of the three contractual relationships on which the defendants based removal were sufficient to justify such removal, either because the relationships failed to satisfy the requirement that the defendants were “acting under” a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims. The first contractual relationship consisted of fuel supply agreements between one defendant and the Navy Exchange Service Command; the court said these agreements contained provisions “typical of any commercial agreement” and did not satisfy the “acting under” requirement. The second contractual relationship was oil and gas leases administered under the Outer Continental Shelf Lands Act; the court found that these agreements did not satisfy the “acting under” requirement and, moreover, that the defendants “did not plausibly assert that the charged conduct was carried out ‘for or relating to’ the alleged official authority, given the ‘wide array of conduct’ for which they were sued,” including alleged “concealment and misrepresentation of the products’ known dangers—and simultaneous promotion of their unrestrained use.” The third contractual relationship was a 1944 agreement between one defendant’s predecessor and the Navy for joint operation of a strategic petroleum reserve; the Fourth Circuit concluded this agreement did not satisfy the “acting under” requirement and that its relationship to Baltimore’s claims was too attenuated. Mayor & City of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. Mar. 6, 2020).

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By Romany Webb

Last Thursday, March 26, the Environmental Protection Agency (EPA) announced a temporary policy on environmental enforcement during the COVID-19 pandemic. The policy declares that EPA will “exercise enforcement discretion” – code for “take no action” – in relation to certain civil violations of environmental law “caused by COVID-19.” The policy identifies several situations in which COVID-19 may be considered the cause of a violation, including where a regulated entity’s ability to comply with environmental law is impacted by travel restrictions or social distancing requirements imposed to manage the pandemic, or worker shortages resulting from it. According to the policy, because these and other consequences of the pandemic could prevent regulated entities from complying with routine monitoring, reporting, and similar requirements, EPA “does not expect to seek penalties for violations” thereof.

The COVID-19 policy defines “routine requirements” to include those imposed by EPA’s Greenhouse Gas Reporting Program (GHGRP), under which approximately 9,000 entities are required to report annually on their greenhouse gas emissions. Reports are ordinarily due by March 31 but, under the policy, entities will not be penalized for late submission. While entities will be required to “catch up” on missed reports when the policy is lifted, the delay could have significant consequences, limiting public access to information that is needed to assess pending regulatory proposals, aimed at weakening existing greenhouse gas emissions controls.

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By Hillary Aidun and Daniel Metzger

Americans of all walks of life are working together to slow the spread of COVID-19 by practicing social distancing. Public agencies are doing their part by closing offices to the public, canceling or postponing hearings, and shifting services and proceedings to virtual formats. In this post we look at the role of open meetings laws in providing for transparent proceedings, and suggest a set of best practices for ensuring that state environmental agencies, public utility commissions, and local governments cultivate meaningful public participation while weathering this pandemic.

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by Amy Turner

It is an extremely challenging time for cities. With the novel coronavirus COVID-19 infiltrating cities across the U.S., leaders and staff are working around the clock to develop and implement policies aimed at slowing the spread of the virus, adequately caring for those infected, providing a basic level of services to residents and facilitating safe and effective work conditions for “essential” workers. As the public figures with the most intimate understanding of their residents’ needs, city leaders and policy-makers are showing admirable and needed leadership in this global emergency.

COVID-19 and climate change are both urgent crises, and plenty has been written already about the similarities between the two, with much more sure to come as lessons from the pandemic emerge. I hesitate to draw early conclusions about the connection between global emissions, climate impacts and our current pandemic conditions. However, this is a moment of opportunity to marry the best of city climate policy and virus response. While big policy conclusions, connections and questions will continue to be debated, right now there are important observations to be made and potential lessons learned for city policymakers about overlapping approaches from past emissions reduction policies, current COVID-19 policy and future climate policy after the virus has subsided. This post explores some of these intersecting policy areas.

People-centered policy

Though “flattening the curve” requires massive and coordinated collective action, cities are still at their cores thousands or millions of people with individual and evolving needs. Now more than ever, city officials are required to be responsive to their citizens in real time. Some city policies have responded to significant job loss by staying evictions for a period of time in order to alleviate the potential fallout of the virus and its economic consequences. While this particular policy is not meant to mitigate climate change, the approach – enacting policy that has a direct benefit for city residents – is applicable in developing climate policy as well. In a recent example that is more directly related to climate change, residents of many dense cities are pointing out that they are unable to keep six feet of distance between one another on narrow sidewalks and in crowded public spaces. In response, a movement has developed to close some streets to vehicular traffic and open them up to pedestrians and cyclists. Philadelphia closed Martin Luther King, Jr. Drive to traffic, New York City is considering closing “up to two streets per borough,” and a city council member in Oakland, California, began soliciting input on street closures there. These street closures might act as pilots for opening up streets to pedestrians in the future, both as a public space amenity and to alleviate vehicle emissions. Read more »

By Hillary Aidun and Malia Libby

On January 17, 2020, the Ninth Circuit released its long-awaited opinion in Juliana v. United States. By a 2-1 vote, the panel declined to act on children’s claim that the U.S. government had violated their constitutional rights, including a right to “a climate system capable of sustaining human life,” by promoting fossil fuel use despite knowing that it can cause catastrophic climate change. The majority concluded that reasonable jurists could disagree about whether such a right exists, but held that, in any event, the plaintiffs lacked standing to assert it. The court reasoned that, “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” Explaining that “redressability questions implicate the separation of powers,” the court determined that it lacked the authority to design or supervise a plan that would achieve sufficient greenhouse gas reductions to vindicate the plaintiffs’ asserted rights. In the court’s view, doing so would require resolving questions entrusted to the political branches such as the appropriate sum to invest in public transit and the right timeline for transitioning to renewable energy. Plaintiffs have filed a petition for en banc review at the Ninth Circuit.

Although rights-based climate litigation has gained traction in many countries, the Juliana decision is not the first to hold that plaintiffs claiming a rights violation are not entitled to relief. Many of these cases are aggregated in our Climate Change Litigation Database. However, Juliana does stand apart from litigation in the rest of the world in at least one crucial respect. A number of courts worldwide have declined to provide redress, even where claimants have demonstrated that their rights may depend on a stable climate, after concluding that the government had properly exercised its discretion or that the policymaking process could still cure the alleged harm. The Juliana panel, by contrast, did not hold that the political branches were acting reasonably. Rather, the majority determined that it could not provide the requested relief even though the executive and legislature “may have abdicated their responsibility” in the face of a looming “environmental apocalypse.” This blog post discusses the distinctions between Juliana and other rights-based climate litigation around the world, which demonstrate the urgent need for policy and political leadership on climate change in the United States.

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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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 131.

FEATURED CASE

Montana High Court Said Necessity Defense Was Not Available to Climate Change Protestor

The Montana Supreme Court upheld a trial court decision precluding a climate change activist from presenting a common law necessity defense. The activist—who cut a chain to gain access to a pipeline facility and then turned off the flow of oil—was convicted of misdemeanor criminal trespass and felony criminal mischief. The Montana Supreme Court found that the necessity defense was not available to the defendant for his “indirect civil disobedience” (i.e., conduct involving violation of a law that was not itself the object of protest). The Supreme Court also noted that the trial court had found a lack of immediacy in the harm. The Supreme Court also rejected the application of out-of-state authority allowing the necessity defense in a similar context and was not persuaded by the defendant’s contention that the trial court had unfairly raised the necessity issue at trial by questioning the defendant about his “perception of the immediacy of the climate problem.” State v. Higgins, No. DA 18-0233 (Mont. Mar. 3, 2020).

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