Climate Law Blog

By Susan Biniaz

You may be an experienced negotiator of international environmental agreements.  Or you may be new to the field and excited to negotiate your very first one.  In both cases, you know your precedents, helped craft your government’s positions, and are anxious to get started.  But wait…before you negotiate the agreement, you will need to navigate the mandate.

A mandate launches the negotiation of an international environmental instrument and sets forth its terms of reference, both procedural (such as where and when it will take place) and substantive (such as what the instrument should address). It is generally issued by the UN General Assembly (e.g., in the case of a new global instrument), a treaty body (e.g., in the case of an amendment to an existing agreement), or another institution (e.g., in the case of an instrument covering a particular region).

There is far more commentary on international agreements than on the negotiating mandates that precede them. However, such mandates can be highly significant. They are often the place where key issues are pre-negotiated and, even when they do not go so far, what a mandate says – or does not say — can affect the ultimate design and content of an agreement, as well as its attractiveness to potential Parties.

This guide looks at the issues commonly addressed by negotiating mandates[1] for international environmental agreements, options for addressing them, and examples of mandate provisions that have been particularly significant in relation to agreements’ outcomes.

Susan Biniaz, formerly a long time U.S. Department of State lawyer, is on the adjunct faculty of Columbia Law School and is a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.  

Read her paper here

[1] A mandate may also be called a “modalities resolution.”

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 CLIMATE CASE CHART SINCE UPDATE # 108.

FEATURED CASE

New York Federal Court Dismissed Exxon’s Lawsuit Claiming Attorney General Investigations Violated Its Constitutional Rights

The federal district court for the Southern District of New York dismissed Exxon Mobil Corporation’s action against the New York and Massachusetts attorneys general. Exxon alleged that the investigations of the attorneys general into Exxon’s climate change-related disclosures were part of a conspiracy to “silence and intimidate one side of the public policy debate on how to address climate change.” Exxon asserted that the attorneys general had violated its constitutional rights, and that the investigations were preempted, violated the dormant Commerce Clause, and constituted common law abuse of process. The court found that “Exxon’s allegations that the [attorneys general] are pursuing bad faith investigations in order to violate Exxon’s constitutional rights are implausible and therefore must be dismissed for failure to state a claim.” The court also found that Exxon had not plausibly alleged essential elements of a dormant Commerce Claim and that its preemption claim also failed. In addition, the court found that it had personal jurisdiction over the Massachusetts attorney general but that res judicata barred the claims against her, based on an ongoing proceeding in Massachusetts state court. Exxon Mobil Corp. v. Schneiderman, No. 1:17-cv-02301 (S.D.N.Y. Mar. 29, 2018).

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Colombian Youth Plaintiffs Sue for Recognition of the Rights of Future Generations

By Jose Felix Pinto-Bazurco*

Photo Credit: Matt Zimmerman

On January 29, 2018, a group of 25 children and young adults sued the Colombian government, demanding the protection of their constitutional rights to health, food, water, and a healthy environment. The plaintiffs argue that climate change endangers these rights and that the government defendants violated plaintiffs’ rights through their acts of omission and breach of their duty to protect the Colombian Amazon. According to the plaintiffs, the resulting rate of deforestation in the Amazon has increased emissions of the greenhouse gases that cause climate change.

The plaintiffs brought a constitutional claim called a “tutela,” discussed in further detail below. They asked the court to grant relief by ordering a series of measures aimed at reducing deforestation, mitigating greenhouse gas emissions, and increasing adaptation to climate change. Specifically, the plaintiffs requested the court order the following measures:

1. A Government Action Plan to Reduce Deforestation: Within the next six months, governmental authorities must present an action plan to reduce the rate of deforestation in the Amazon to zero by the year 2020. Preparation of the plan must ensure opportunities for the plaintiffs’ participation.
2. An Intergenerational Agreement: Governmental authorities must develop, in conjunction with the plaintiffs, an “intergenerational agreement” on the measures that will be adopted to reduce deforestation, mitigate greenhouse gas emissions, and enhance adaptation to climate change in each one of the country’s vulnerable cities and municipalities.
3. Updates to Municipal Land Management Plans: The municipalities of the Colombian Amazon must update their land management plans within a period of six months. Updated plans should include actions to reduce deforestation, enhance adaptation, and mitigate greenhouse gases.
4. A Moratorium on the Drivers of Deforestation: The government must issue a moratorium for the main drivers of deforestation, which plaintiffs identify to be land grabbing, illicit crops, and illegal resource extraction, until the above-mentioned action plan is issued.
5. Investigation into Illicit Drivers of Deforestation: The Attorney General’s Office must investigate the illicit activities that generate deforestation in the Colombian Amazon.
6. National Parks Budget Review: The Special Administrative Unit for Natural Parks must review the budget for parks to verify that it has sufficient resources to police its parks.

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by Justin Gundlach

In 2017, a majority of Duke Energy’s shareholders voted to instruct the energy and utility company to draft what The 50/50 Climate Project has called a “2 degree analysis.” As a result, on or before March 30, 2018, Duke will issue a report on the risks facing the company in a world where governments adopt policies necessary to meet the goal, articulated in article 2 of the Paris Agreement and modeled by the International Energy Agency, of keeping global average temperatures well below 2°C above pre-industrial levels. It will be the latest addition to a growing list; other reporting companies include (but aren’t limited to) Chevron, ExxonMobil, Occidental Petroleum, Pioneer Natural Resources, PPL Corporation, Shell, and Total SA.

What do these reports say? What spurred the companies to issue them? How might they be used, now and in the years to come? Some answers are below the jump.

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By Susan Biniaz

Negotiators of multilateral environmental agreements are frequently faced with the challenge of striking the right balance between stringency of commitment and breadth of participation. A perfect agreement on paper, with strong commitments and a robust compliance mechanism, might attract too few Parties (or too few key Parties) to achieve the agreement’s environmental objective. Conversely, broad participation in a weak agreement might also fail to accomplish the agreement’s goals.

This paper focuses on the various ways in which negotiators have worked to encourage participation in multilateral environmental agreements. In some cases, they involve steps taken before and during the negotiation of the agreement. In other cases, they involve the provisions of the agreements themselves (such as various forms of flexibility, incentives to join, and disincentives to remaining outside) or decisions taken by Parties after agreements have entered into force.

Ultimately, States participate in agreements because they consider it in their environmental, economic, and/or political interest to do so. There may be forces beyond the four corners of environmental agreements that cause States to join them or implement their provisions de facto.

• There may be bilateral or multilateral pressure to join or implement an agreement, such as through diplomatic exchanges.
• The UN may call upon States to join or implement particular agreements, such as through a UN General Assembly Resolution.
• A State may be lobbied domestically, e.g., by environmental NGOs or particular industries.
• Another State(s) may restrict imports of a particular good if it does not meet a particular international environmental standard.
• Another type of agreement, such as a trade agreement, may incorporate the requirements of an environmental agreement, either directly or by reference.

At the same time, negotiators of environmental agreements have employed a wide variety of supplementary techniques, often in combination, to further encourage participation. This paper, Join the Parties: 25+ Ways to Promote Participation in Multilateral Environmental Agreements, focuses on such enticements and accommodations.

Susan Biniaz, formerly a long time U.S. Department of State lawyer, is on the adjunct faculty of Columbia Law School and is a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.  

Read her paper here

By Richmund Sta. Lucia

The world is currently looking with great interest at how the groundbreaking case known as the “Carbon Majors” petition will unfold. On September 22, 2015, Greenpeace Southeast Asia, Philippine Rural Reconstruction Movement, and numerous other interest groups filed a petition with the Philippine Commission on Human Rights (CHR) against 50 multinational corporations identified as the “Carbon Majors”. Based on a study conducted by Mr. Richard Heede of the Climate Accountability Institute, the petition requests the CHR to investigate the responsibility of the Carbon Majors for contributing to global emissions of greenhouse gases (carbon dioxide and methane) that are tantamount to human rights violations. The Carbon Majors named in the petition are investor-owned companies engaged in the oil & gas, coal, and cement businesses, including Chevron, ExxonMobil, British Petroleum (BP), and Royal Dutch Shell. Notably, the Philippines has experienced a fair amount of the adverse effects of climate change, foremost of which is Typhoon Haiyan—one of the strongest tropical cyclones ever recorded in history—that devastated the country in 2013.

The petition caught the attention of academics and stakeholders in climate justice around the globe. On December 16, 2016, the Sabin Center on Climate Change Law submitted to the CHR its position in support of the petition. In another blog post, the Sabin Center also shed light on the nature of the petition and how it can impact climate litigation.

One of the salient issues raised in the petition concerns the jurisdiction of the CHR. The petitioners assert that the CHR has jurisdiction over the petition based on the argument that responsibility for directly contributing to climate change is a violation of human rights of the Filipino people. In turn, the respondents (or at least those who have submitted letter-responses to the CHR) counter that it does not have jurisdiction, typically on the grounds that it does not have adjudicatory powers or they are not doing business in the Philippines. (For example, see responses of Anglo American, BHP Billiton, and Rio Tinto on the Sabin Center’s Non-U.S. Climate Litigation Database). In December 2017, the CHR stated to the media that it is assuming jurisdiction to investigate the allegations in the petition by conducting hearings in the Philippines and abroad throughout 2018. It aims to release its resolution by the first quarter of 2019, which could be a landmark development in climate justice litigation.

This post attempts to contribute to a better understanding of the nature and powers of the CHR that can help inform the resolution of the petition.

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Guest Blog by Augusta Wilson*

A Stanford environmental professor’s high-stakes defamation suit over a peer-reviewed critique evaluating renewable energy outcomes, came to an end last week. Dr. Mark Jacobson, professor of civil and environmental engineering and director of Stanford’s Atmosphere/Energy program, announced on February 22 that he will drop the defamation suit he brought in D.C. Superior Court against fellow environmental scientist Dr. Christopher Clack and the National Academy of Sciences.

The case revolved around a 2015 paper in the Proceedings of the National Academy of Sciences (PNAS) in which Dr. Jacobson and three co-authors argued that wind, water and solar resources could provide 100% of the energy needed in the continental United States by as early as 2050. In February of 2017, PNAS published a critique of the Jacobson paper written by Dr. Clack (currently the founder and CEO of Vibrant Clean Energy, LLC, and formerly a mathematician with the Cooperative Institute for Research in Environmental Sciences) and 20 co-authors. In that article, Clack et al. argued that the Jacobson paper “used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.”

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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 CLIMATE CASE CHART SINCE UPDATE # 107.

FEATURED CASE

Federal Court Denied Oakland and San Francisco Motions to Return Climate Change Nuisance Cases to State Court; Found Federal Common Law of Nuisance Could Apply, Despite AEP v. Connecticut; Requested “Tutorial” on Climate Change

The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court. The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available.” The court dispensed with the cities’ three primary arguments for remanding the cases. First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law. Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.” Third, the court said the well-pleaded complaint rule did not bar removal. The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims. On March 1, the court set a schedule for motions to dismiss, with the parties’ briefing to be completed by April 10. The court invited the United States to submit (by April 20, if possible) “an amicus brief on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.”

Separately, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.”

Earlier in February, the court issued a request for supplemental briefing on the issue of how the concept of “navigable waters of the United States” related to removal jurisdiction. The court stated that the issue arose “because a necessary and critical element of the hydrological damage caused by defendants’ alleged conduct is the rising sea level along the Pacific coast and in the San Francisco Bay, both of which are navigable waters of the United States.” In its order denying remand, the court indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue. People of State of California v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. order setting schedule Mar. 1, 2018; order denying remand and notice re tutorial Feb. 27, 2018; request for supplemental briefing Feb. 12, 2018).

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By the Sabin Center for Climate Change Law

Columbia Law School’s Sabin Center for Climate Change Law has been selected as the winner of the International Association for Impact Assessment’s (IAIA) 2018 Institutional Award for its outstanding efforts in climate change and the law governing environmental impact assessment (EIA).

“In the face of growing climate change threats, the Sabin Center’s work on the law governing environmental impact assessment is absolutely vital in advancing climate action,” said Gillian Lester, Columbia Law School Dean and the Lucy G. Moses Professor of Law. “I am proud that the Sabin Center’s efforts are recognized for their real impacts in the environmental law sphere.”

The IAIA Institutional Award recognizes the Sabin Center’s legal efforts aimed at advancing the use of EIA as a tool for climate change analysis, mitigation, and adaptation planning. These efforts include model protocols, surveys, and submission of comments:

• The Sabin Center has developed model protocols for evaluating climate change effects in two contexts: (1) environmental review documents for buildings and infrastructure proposals and (2) environmental review and related planning documents for natural resource management proposals.
• The Sabin Center has conducted several surveys to track consideration of greenhouse gas emissions and climate change impacts in environmental impact statements prepared by federal and state agencies since 2009.
• Last year, executive director Michael Burger and Jessica Wentz published Downstream and Upstream Greenhouse Gas Emissions: the Proper Scope of NEPA Review,
• The Sabin Center frequently submits comments on environmental review documents prepared for proposals, such as the approval of coal leases and oil and gas infrastructure. It also comments on NEPA guidance documents, such as CEQ’s draft guidance on climate change and NEPA.
• Faculty Director Michael Gerrard is co-author of a leading treatise, Environmental Impact Review in New York, and has been writing an annual review of New York EIA cases for the New York Law Journalsince 1990, as well as many other articles on the subject.
• Jessica Wentz wrote a report on Using Online Databasing to Unlock the Full Value of Environmental Impact Assessments.

​“The U.S. National Environmental Policy Act of 1970 originated the practice of environmental impact assessment, and it has since expanded worldwide to become a standard part of planning for infrastructure and many other kinds of projects,” says Michael Gerrard, faculty director of the Sabin Center. “Now that extreme weather events worsened by climate change are threatening many cities, it is especially important that impact assessments consider future climate projections — better to know before you build if the site may be under water in a few decades. The Sabin Center is pleased to be advancing this practice, and we’re gratified by the international recognition.”

IAIA is the leading global network on best practice in the use of impact assessment for informed decision-making regarding policies, programs, plans and projects. The IAIA Institutional Award is presented to a national or international government or non-governmental organization for outstanding contribution to impact assessment practice or other environment-related activity deserving of recognition.

“We devote a good deal of time thinking through, writing about, and advocating for ways to mainstream climate change considerations into environmental review,” says Michael Burger, Executive Director of the Sabin Center. “It is deeply rewarding to see our work recognized by the leading practitioners in the field.”

The award will be presented at the IAIA annual conference event in Durban, South Africa (16-19 May 2018). The theme of this conference will be Environmental Justice in Societies in Transition.

By Jose Felix Pinto-Bazurco*

Since its founding in 1979, the Inter-American Court of Human Rights (the Court) has issued 24 advisory opinions. Although it has previously recognized the existence of a relationship between environmental protection and the enjoyment of other human rights, it has done so only in relation to the territorial rights of indigenous and tribal peoples. A new opinion of the Court, made by a request from Colombia, is the first to recognize an autonomous right to a healthy environment and nations’ extraterritorial responsibility for environmental damages under the American Convention on Human Rights (the Convention). This new opinion allows for the possibility that a person affected by environmental damage generated in another country, including damage caused by climate change, could present a case before the Court as long as the respondent State has not complied with the obligations presented by the Court.

The Considerations of the Court

The Court’s opinion contains two interesting aspects. First, it recognizes that the right to a healthy environment is an autonomous right, which must be protected. Second, it recognizes that States are responsible for the environmental damage they cause, whether that damage occurs beyond its borders or within them.

The Court’s recognition that the right to a healthy environment is an autonomous right makes enforcement or protection of that right justiciable in cases before the Inter-American Human Rights System under Article 26 of the Convention. Two of the seven judges who voted in favor of the decision declined to join this finding, noting that to find a right to a healthy environment justiciable would be inconsistent with the principle that no State can be taken to an international tribunal without their consent.

Regarding extraterritorial responsibility, the Court concluded that States must take measures to prevent significant damage to the environment, inside or outside their territory. The Court noted specific obligations to carry out environmental impact studies, cooperate with potentially affected States, and guarantee access to information. With regard to the obligation to prevent environmental damages, the Court specifies that this obligation is not contingent on the level of development of a State. That is, the obligation of prevention applies equally to developed States as to developing States. However, the Court notes that the particular factual and legal circumstances of a case determine whether a State’s activities fall within the jurisdiction of the Court.

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