Climate Law Blog

At least 100 ordinances have been adopted in 31 states blocking or restricting new wind, solar, and other renewable energy facilities, and at least 152 of these projects have been contested in 48 states. Today Columbia Law School’s Sabin Center for Climate Change Law issued a report documenting these instances of local opposition to renewables.

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Achieving the Paris Agreement’s goal of limiting warming to “well below” 2°C above pre-industrial levels requires urgent and serious steps to reduce greenhouse gas. Shipping currently makes up nearly 3% of anthropogenic greenhouse gases (GHG) released worldwide, and those emissions are on track to increase. But the transnational nature of the industry makes it difficult for any state to address the issue alone, and little has been done at the international level to either force or incentivize shipping companies to decarbonize.

In a new white paper, published online, the Sabin Center examines nine principles of international law that establish and frame the International Maritime Organization’s (IMO) authority to adopt a market-based mechanism to reduce shipping emissions. The polluter pays principle provides strong support to adopt such a measure, which could require whoever causes emissions to cover the costs those emissions impose on others. And other principles of international law will work to ensure that any measure is sensitive the different contributions parties have made to climate change, views any uncertainties through the lens of the precautionary principle, and respects fundamental rights of all.

Prior Sabin Center white papers have explored The Legal Bases For IMO Climate Measures and the Authority of Pacific Island States to Regulate Greenhouse Gases from the International Shipping Sector. For more information about the Sabin Center’s publications visit our searchable library here.

By Margaret Barry and Korey Silverman-Roati  

Wikimedia Commons

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 # 142.

FEATURED CASE

D.C. Circuit Vacated Trump EPA’s Affordable Clean Energy Rule

On January 19, 2021, the D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency’s (EPA’s) Affordable Clean Energy Rule (ACE Rule) for greenhouse gas emissions from power plants rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. The court therefore vacated and remanded the ACE Rule—which repealed the 2015 Clean Power Plan rule and in its place adopted a replacement rule that relied only on heat-rate improvements at individual plants. In concluding that Section 111 of the Clean Air Act does not limit EPA to identifying a “best system of emission reduction” consisting only of controls “that can be applied at and to a stationary source,” the D.C. Circuit’s majority opinion first concluded that neither the text nor the statutory history, structure, and purpose compelled such a reading. Second, the D.C. Circuit ruled that EPA incorrectly invoked the “major questions doctrine”—which requires a clear statement from Congress when an agency’s regulatory action is of “extraordinary” significance—to support its interpretation of Section 111. The court found that Congress and the courts had long recognized EPA’s authority to regulate greenhouse gases from power plants under Section 111, and that the major questions doctrine did not apply to EPA’s identification of the “best system of emission reduction.” The court said Congress knew “both the scope and important of what it was doing” when it gave EPA authority to set standards and that it “cabined the EPA’s authority with concrete and judicially enforceable statutory limitations.” With respect to the significant regulatory consequences of the standards, the D.C. Circuit indicated that the consequences were “a product of the greenhouse gas problem, not of the best-system’s role in the solution,” writing that “any nationwide regulation of [power plants’] greenhouse gas pollution will necessarily affect a broad swath of the Nation’s electricity customers.” The court also rejected EPA’s contention that the major questions doctrine applied because the Clean Power Plan regulated the electric grid and not air pollution. Third, the D.C. Circuit held that the federalism canon—requiring that Congress use “exceedingly clear language” to alter the balance of power between the federal government and the states—did not support an interpretation limiting the best system of emission reduction to measures applied at and to the source. The D.C. Circuit also rejected two arguments by coal companies against the ACE Rule. First, the court found that EPA made and retained the requisite endangerment finding for regulation of carbon dioxide emissions from power plants. Second, the court found that EPA “correctly and consistently” interpreted the Clean Air Act to permit both regulation of a source’s hazardous air pollutant emissions under Section 112 and emissions of other pollutants under Section 111(d). The D.C. Circuit also concluded that two petitioners—Texas Public Policy Foundation and Competitive Enterprise Institute—lacked organizational standing to challenge EPA’s authority to promulgate the ACE Rule. Finally, the D.C. Circuit found that amendments to the regulations implementing Section 111(d)—which extended the timeline for compliance—lacked reasoned support. Because EPA’s sole defense for repeal of the Clean Power Plan and replacement with the Affordable Clean Energy Rule was that the interpretation underlying the rule was the only permissible one, the D.C. Circuit vacated the ACE Rule and remanded to EPA. Judge Walker issued a separate opinion dissenting from the majority’s conclusion that EPA had authority to regulate coal-fired power plants under both Section 111 and Section 112. Although he concluded that regulation of coal-fired power plants was foreclosed for this “more mundane reason” and thus concurred in the vacating of the ACE Rule, Judge Walker also wrote that he doubted the validity of the Clean Power Plan—which he characterized as “arguably one of the most consequential rules ever proposed by an administrative agency”—under the major questions doctrine. The court directed that issuance of the mandate be withheld until seven days after disposition of any petition for rehearing or petition for rehearing en banc. American Lung Association v. EPA, No. 19-1140 (D.C. Cir. Jan. 19, 2021).

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In October 2019, the Sabin Center joined an international research project, assessing the feasibility of offshore carbon capture and storage. Known as Solid Carbon, the project is led by researchers at Ocean Networks Canada, a University of Victoria initiative, and supported by the Pacific Institute for Climate Solutions under its Theme Partnership Program. The goal is to develop an integrated system to remove carbon dioxide from the air and permanently store it in sub-seabed geologic formations off the west coast of Canada. It is a novel concept that raises novel legal questions. Those questions are explored in a new Sabin Center white paper published online today.

The Strait of Juan de Fuca and the Salish Sea, pictured from the International Space Station, separate the western-most border of the United States and Canada. Source: NASA

The Solid Carbon system envisions using direct air capture technology, mounted on an offshore platform and powered by offshore wind turbines, to remove carbon dioxide directly from the air. The carbon dioxide would then be injected into sub-seabed basalt rock formations, where it may rapidly mineralize, becoming solid carbonate rock. Current research is focusing on injection into basalts in the Cascadia Basin, which straddles the U.S. / Canada border, approximately 100 miles (160 kilometers) off the west coast. However, because sub-seabed basalts can be found globally, learnings from the project have broader application.

Our paper – The Legal Framework for Offshore Carbon Capture and Storage in Canada – examines legal issues associated with deploying the Solid Carbon system in the Canadian portion of the Cascadia Basin. As we explain, there is no single, comprehensive legal framework for carbon capture and storage in Canadian waters. Each component of the Solid Carbon system will, therefore, be regulated separately. Multiple, overlapping regulatory frameworks could apply. Several of those frameworks are relatively new and untested, leading to significant uncertainty as to how they will apply. As such, developers should engage with regulatory agencies early in the project design process and, where possible, participate in relevant agency consultations and regulatory proceedings.

Related work: Previous Sabin Center white papers have discussed the legal framework for sub-seabed carbon storage off the east and west coasts of the U.S. The Sabin Center is also preparing a series of white papers examining legal issues associated with other ocean-based carbon removal and storage techniques. The first of these – Removing Carbon Dioxide Through Ocean Alkalinity Enhancement and Seaweed Cultivation: Legal Challenges and Opportunities – was published online last week. For more information about the Sabin Center’s work on carbon removal and storage visit our website here.

Achieving the Paris Agreement’s goal of limiting warming to “well below” 2^oC above pre-industrial levels will require an immediate and dramatic reduction in greenhouse gas emissions which must reach “net zero” around mid-century. This will likely necessitate the use of so-called “negative emissions technologies” that can remove greenhouse gases from the atmosphere to offset emissions from hard-to-eliminate sources (e.g., heavy industry). Initial research has primarily focused on terrestrial-based negative emissions technologies, such as direct air capture and bioenergy with carbon capture and storage, but those approaches may have large land requirements and other drawbacks. This has prompted growing interest in ocean-based approaches, including ocean alkalinity enhancement and seaweed cultivation. In a new white paper, published online today, the Sabin Center examines the international and U.S. legal frameworks applicable to those activities.

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By Daniel J. Metzger

Countries around the world are increasingly setting national emissions reductions targets and articulating policy objectives to address climate change impacts. As they do, a broad set of actors are turning to courts to seek enforcement of existing climate laws, to articulate clearer definitions of climate rights, to ask for compensation for a variety of climate harms and, on the other side of things, to demand relief from policies seen as overly ambitious. Today, the United Nations Environment Programme (“UNEP”), with support from the Sabin Center, has published a survey of global climate change litigation that provides an overview of existing cases and a discussion of their key legal issues: Global Climate Litigation Report: 2020 Status Review

Today’s report finds, as of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries around the world. Key trends in those cases include increasing numbers of matters premised on fundamental and human rights; challenging domestic enforcement and non-enforcement of climate-related laws; seeking to stop fossil fuel extraction and use; arguing for corporate liability for climate harms; addressing failures to adapt and the impacts of adaptation measures; and advocating for increased climate disclosures. Today’s report provides a fresh analysis of the recurring legal issues that appear in most of these cases and discusses likely future directions for climate litigation in light of both accelerating climate impacts and the changing legal landscape.

The full report is available from UNEP. A previous report, from 2017, is available here.

By Jennifer Danis & Romany Webb

On Thursday, January 21, 2021, President Joe Biden appointed Richard Glick as the new chair of the Federal Energy Regulatory Commission (FERC). Chairman Glick has been a FERC commissioner since November 2017, and has earned a reputation as a strong proponent of action on climate change during his tenure. In April 2019, in an article co-authored with his legal advisor Matthew Christiansen, Chairman Glick declared that, “[t]he evidence that anthropogenic climate change is an existential threat to our way of life is incontrovertible.” The article went on to note that FERC’s “actions have substantial consequences for climate change.” To date, those consequences have been largely ignored by FERC, but that could soon change.

Chairman Glick has been a particularly outspoken critic of FERC’s approach to approving new fossil fuel infrastructure. He has lambasted his fellow commissioners for not grappling meaningfully with the climate impacts of infrastructure approvals in his strong dissents to recent pipeline certifications. Importantly, he does not simply argue that FERC should consider climate impacts, but that it must do so to meet its statutory obligations. As he said in one recent decision: “The Commission once again refuses to consider the consequences its actions have for climate change. A public interest determination that systematically excludes the most important environmental consideration of our time is contrary to law, arbitrary and capricious, and not the product of reasoned decision-making.”

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Today, the Sabin Center filed an amicus brief on behalf of local governments in support of state, city, environmental, and public health petitioners in Competitive Enterprise Institute v. National Highway Traffic Safety Administration. The lawsuit challenges the so-called Safer Affordable Fuel Efficient Vehicles (SAFE) Rule, the Trump Administration’s rollback of the Obama Administration’s clean car standards.

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Today, January 20, 2021, the Sabin Center for Climate Change Law launched the Climate Reregulation Tracker to follow the Biden administration’s progress in undoing the Trump administration’s assault on climate change policy. Four years ago today—on the last Inauguration Day—the Sabin Center launched the Climate Deregulation Tracker, the first of what would become numerous online trackers, news reports, academic analyses, and other resources designed to spotlight the Trump administration’s use and abuse of executive authority to pursue its agenda to cut back on government regulations and to promote the extraction and use of fossil fuels. Since its launch, the Climate Deregulation Tracker has logged over 150 executive branch actions that fit the bill. Last summer the Sabin Center issued a report titled Climate Reregulation in a Biden Administration to imagine the steps then-candidates Biden and Harris could take to reverse course if they won the election.

Today we begin tracking those steps. The Climate Reregulation Tracker will follow the Biden administration’s work reinstating and strengthening the regulations, guidance, international commitments, technical documents, and other actions to address climate change that the Trump administration rolled back or eliminated in the past four years. Those efforts will also be captured in our Climate Regulation Database, which currently includes actions that the executive branch has taken under Presidents Obama and Trump. President Biden’s pledge to prioritize climate change promises to usher in a new era of climate governance.

Arctic Offshore Drilling, Flickr

By Margaret Barry and Korey Silverman-Roati

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 # 141.

FEATURED CASE

Ninth Circuit Said NEPA Review for Offshore Drilling Project Should Have Considered Greenhouse Gas Emissions Associated with Foreign Oil Consumption

The Ninth Circuit Court of Appeals vacated the Bureau of Ocean Energy Management’s (BOEM)  approval of an offshore drilling and production facility off the coast of Alaska in the Beaufort Sea, finding that BOEM failed to comply with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Although the Ninth Circuit disagreed with the petitioner’s argument that BOEM’s NEPA analyses used different methodologies to calculate the lifecycle greenhouse gas emissions from the project and the no-action alternative, the court agreed that BOEM’s alternatives analysis was arbitrary and capricious because it failed to consider greenhouse gas emissions from foreign oil consumption in the analysis of the no-action alternative. The court said BOEM must either quantitatively evaluate such emissions or “thoroughly explain why such an estimate is impossible” and provide “a more thorough discussion of how foreign oil consumption might change” the analysis of greenhouse gas emissions. The Ninth Circuit held that BOEM violated the ESA by relying on nonbinding mitigation measures to conclude the project would not adversely modify polar bear critical habitat and by failing to estimate the project’s nonlethal take of polar bears. Center for Biological Diversity v. Bernhardt, No. 18-73400 (9th Cir. Dec. 7, 2020).

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