Climate Law Blog

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 #120.

FEATURED CASE

D.C. Federal Court Said Climate Change Analysis for Wyoming Oil and Gas Leases Was Insufficient

The federal district court for the District of Columbia ruled that the U.S. Bureau of Land Management (BLM) did not sufficiently consider the climate change effects of oil and gas leasing in its National Environmental Policy Act (NEPA) review for 282 lease sales covering more than 303,000 acres in Wyoming. The court found that BLM did not take a hard look at drilling-related and downstream greenhouse gas emissions associated with the leases and that BLM failed to “sufficiently compare those emissions to regional and national emissions.” Regarding drilling-related emissions, the court rejected the argument that BLM could defer its consideration of certain environmental impacts, including greenhouse gas emissions, until the drilling stage; the court said NEPA required BLM at the leasing stage to “reasonably quantify the [greenhouse gas] emissions resulting from oil and gas development on the leased parcels in the aggregate.” The court found that BLM had sufficient information to forecast greenhouse gas emissions at this stage and concluded that BLM’s justification for limiting its analysis to qualitative discussions of greenhouse gas emissions and their impacts was not reasonable. The court also rejected BLM’s argument that the environmental assessments for the lease sales had been “tiered” to environmental impact statements (EISs) for resource management plans that quantified emissions; the court noted that not all of the EISs included such quantitative analysis and that the analysis in the EISs that did quantify emissions was not adequate for the leasing stage analysis. With respect to downstream emissions from combustion of oil and gas, the court found that such emissions were indirect effects of the oil and gas leasing under the applicable “heightened” causation standard. The court declined, however, to require BLM to quantify downstream emissions. Instead, the court remanded for BLM to “strengthen” its discussion of downstream effects and directed the agency to consider whether quantifying greenhouse gas emissions from downstream use was “reasonably possible,” including through use of an emissions calculator suggested by the plaintiffs. Regarding cumulative effects, the court ruled that BLM’s refusal to quantify greenhouse gas emissions rendered its cumulative impacts analysis inadequate. BLM’s duty under NEPA, said the court, was to “quantify the emissions from each leasing decision—past, present, or reasonably foreseeable—and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decision at issue.” The court stated that “[g]iven the national, cumulative nature of climate change, considering each individual drilling project in a vacuum deprives the agency and the public of the context necessary to evaluate oil and gas drilling on federal land before irretrievably committing to that drilling.” The court rejected, however, the plaintiffs’ contention that BLM was required to use certain protocols—the “social cost of carbon” and the “global carbon budget”—to quantify climate change impacts. The court did not vacate the leasing decisions but enjoined BLM from authorizing new oil and gas drilling on the leases while the agency conducts its additional analysis. WildEarth Guardians v. Zinke, No. 16-1724 (D.D.C. Mar. 19, 2019).

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By Dena Adler

Photo Credit: Flooding caused by Hurricane Harvey in Southeast Texas on August 31, 2017 (Air National Guard photo by Staff Sgt. Daniel J. Martinez/Released)

Last month the Midwest faced historic floods that devastated rural communities, drowned farms, contaminated water supplies, and resulted in billions of dollars in damages. As climate change exacerbates the risk of these catastrophic flooding events in the Midwest and throughout the U.S., a growing number of citizens will need support rebuilding their homes more resiliently or relocating to safer, higher ground. Congress can help citizens take these actions to adapt to the risks of climate change by adopting a package of climate-smart reforms for the National Flood Insurance Program (NFIP). Though Congress has stalled on NFIP reform in recent years, it will have yet another chance in May—the next deadline for long-term reauthorization of the program.  A new article from the Sabin Center and the Natural Resources Defense Council, released in this month’s Environmental Law Reporter, provides key recommendations on how to change the NFIP for a changing climate. Read more »

By Dena Adler

Photo Credit: Hillebrand/USFWS

Earlier this month, the Sabin Center submitted a public comment on the Bureau of Land Management’s (BLM) Draft Environmental Impact Statement (EIS) for oil and gas development in the Arctic National Wildlife Refuge (ANWR), stressing the document’s insufficient consideration of climate change impacts. At the end of 2017, Congress squeezed a provision to open ANWR to drilling into the tax bill. Subsequently, the Trump Administration has attempted to fast-track fossil fuel extraction in this unique and delicate ecosystem, cutting corners on environmental review in an attempt to have oil and gas lease sales start as soon as summer 2019. This expedited review departs from standard practice to assess environmental impacts over a multi-year period and stands in contradiction to the increasingly dire warnings from the scientific community that the global greenhouse gas emissions trajectory must sharply decrease over the next decade to limit catastrophic impacts of climate change. Read more »

By Michael B. Gerrard

Despite the Paris Climate Agreement, the seas will continue to rise, coastlines around the world will recede, and many low-lying islands will disappear. This could cause the exclusive economic zones of the small island states to shrink or disappear if international law allows maritime boundaries to move.  This note argues that, as a matter of climate justice, these boundaries should be fixed.

The Paris Climate Agreement of December 2015 set an international goal of keeping the rise in global average temperatures to well below 2°C (3.6°F) above pre-industrial conditions, with an effort to keep the rise as close as possible to1.5°C.  However, the voluntary pledges that each country made in Paris, the Intended Nationally Determined Contributions, would take us to a world over 3°C – a calamitous situation. Recognizing the deficiencies of the pledges, the Paris parties also agreed to a “stocktake” mechanism in which the pledges would be periodically reevaluated and, hopefully, strengthened.

Little in the experience of the United Nations climate process leads to confidence that the climate action of many countries, especially the large economies, will exceed their pledges and become stronger. Indeed, already most countries are not on track even to meet their Paris pledges.  The United States government has said it will withdraw from the Paris Agreement altogether, though legally this withdrawal could not become effective until November 2020.  But meanwhile the U.S. is in the process of cancelling its most important measures to meet its pledges – the Clean Power Plan and the motor vehicle greenhouse gas standards.

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    The Petra Nova carbon capture facility in Texas.

This week, the Sabin Center and a group of scientists with expertise on carbon capture and sequestration (“CCS”) technologies submitted comments on EPA’s proposal to weaken the CO₂ performance standards for new coal-fired power plants.  As discussed in a previous blog post, the current standards, which were promulgated in 2015, reflect the emissions reductions that can be achieved by using post-combustion CCS technologies to capture and store a percentage of the CO₂ emissions generated (16-23% depending on the type of coal used). This decision was based on EPA’s determination that partial CCS was adequately demonstrated, technically feasible, and widely available. EPA is now proposing to change course on its CCS feasibility determination and to issue standards that do not account for the emissions reductions achievable through CCS – and as a result, the proposed standards are significantly weaker than the 2015 standards.

Our comment letter addresses the scientific validity of EPA’s new position, focusing on some of the erroneous conclusions reached by EPA with respect to the feasibility and geographic availability of partial CCS for coal-fired power plants. The letter summarizes the technical basis for EPA’s original CCS determination, drawing from an amicus brief that we submitted on behalf of CCS experts in the lawsuit challenging the initial rule. Two key points made therein are that:

• CCS technologies have been proven through decades of experience in industrial applications and are now being successfully deployed on a large scale to capture and permanently store CO₂ emissions from power plants. In particular, all components of the CCS system which served as the basis for the 2015 rule (post-combustion capture, pipeline transport, and storage in deep saline reservoirs) have been adequately demonstrated.
• Projects that are currently in operation today show that it is possible to store CO₂ emissions from power plants at a scale even larger than that contemplated by the 2015 rule. These include the Boundary Dam facility in Canada and the Petra Nova facility in the United States.

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By Romany Webb

On Wednesday, March 13, the United Nations Environment Programme released its sixth Global Environment Outlook warning that “[t]ime is running out to prevent the irreversible and dangerous impacts of climate change.” Consistent with other UN reports, the Outlook calls for urgent action to reduce climate-damaging carbon dioxide emissions, which must reach “net zero” around mid-century and then go “net negative.” This will likely require the use of carbon management techniques, such as carbon capture and storage (CCS). During CCS, carbon dioxide is collected at its source and permanently disposed of underground, thus preventing it from further increasing the atmospheric concentration of carbon dioxide. Negative emission technologies (e.g., direct air capture) can reduce existing atmospheric carbon dioxide levels by removing the gas from the ambient air, and perhaps disposing of it underground.

To ensure CCS and direct air capture deliver lasting climate benefits, disposal sites must be carefully selected to avoid leakage of carbon dioxide. One promising option involves injecting carbon dioxide into sub-seabed geologic formations comprised of basalt rock, which reacts with carbon dioxide, converting it into an immovable solid and thereby substantially reducing the potential for leaks. One large basalt rock formation, with the capacity to store 100-years’ worth of U.S. carbon dioxide emissions, is located off the coast western North America. While carbon dioxide injection in that area is technically feasible, injection projects may be hampered by various legal issues. Those issues, and possible solutions to address them, are discussed in a new Sabin Center white paper published today.

The paper – Overcoming Impediments to Offshore Carbon Dioxide Storage: Legal Issues in the U.S. and Canada – explores the current legal frameworks governing sub-seabed carbon dioxide injection in U.S. federal and Canadian waters. As discussed in the paper, neither the U.S. nor Canada has enacted comprehensive legislation specific to sub-seabed injection, resulting in significant uncertainty as to how future projects will be regulated. Projects may be subject to a patchwork of general laws that were developed for other activities and are often poorly suited to regulating carbon dioxide injection. Indeed, the laws currently prohibit some injections projects entirely, and impose unnecessarily burdensome restrictions on others. Unless and until these issues are addressed, injection projects are unlikely to occur in U.S. federal and Canadian waters, despite the potential climate benefits. To realize those benefits, the paper recommends that both the U.S. and Canada enact legislation that deals specifically with sub-seabed carbon dioxide injection, establishing a well-defined framework for the regulation of future projects.

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 #119.

FEATURED CASE

Pennsylvania Federal Court Dismissed Lawsuit Challenging Trump Administration’s Climate Change Deregulatory Actions as Unconstitutional

The federal district court for the Eastern District of Pennsylvania dismissed a lawsuit brought by Clean Air Council and two minors seeking to block the Trump administration’s climate change deregulatory efforts on the grounds that they violated the plaintiffs’ constitutional rights. The court concluded that it did not have jurisdiction to hear the plaintiffs’ claims because neither Clean Air Council nor the individual plaintiffs had established standing. Regarding Clean Air Council, the court found that neither the complaint nor an affidavit submitted by the plaintiffs included specific harms suffered by the organization’s members. With respect to the individuals, the court found that while their alleged physical harms constituted particularized and concrete injuries, the injuries were not imminent or certain. The court further found that the alleged injuries could not be traced to the regulatory rollbacks and that a favorable decision by the court would not redress the injuries. In addition, the court said that prudential considerations regarding the separation of powers precluded jurisdiction. In the alternative, the court found that the plaintiffs failed to state a viable claim. The court said there was no legally cognizable due process right to environmental quality, rejecting the plaintiffs’ argument that the right to a life-sustaining climate system was a liberty interest guaranteed by the Fifth Amendment. The court said the District of Oregon’s decision to the contrary in Juliana “certainly contravened or ignored longstanding authority.” The court also found that the plaintiffs’ claim did not meet the requirements for a state-created danger claim and that the plaintiffs had not stated a claim of invasion of their due process right to property. In addition, the court held that the Ninth Amendment did not provide substantive rights to sustain the plaintiffs’ action, and that the public trust claim had no basis in law. Clean Air Council v. United States, No. 17-4977 (E.D. Pa. Feb. 19, 2019).

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Photo of scenic Gloucester Valley by Groundswell Gloucester

By Dena Adler

A groundbreaking ruling will break no new ground for a proposed Australian coal mine. On February 8, 2019, the Land & Environment Court of New South Wales upheld the government’s denial of an application by Gloucester Resources Limited to construct an open cut coal mine in New South Wales (NSW). The proposed Rocky Hill Coal Project aimed to produce 21 million tonnes of coal over a period of 16 years. The court determined the project was not in the public interest after weighing the social and environmental costs of the project, including an extended consideration of how the project would worsen climate change.  While the decision’s specific legal context may limit its exact replicability, the decision to uphold a permit denial on the basis of negative climate change impacts, could bolster climate suits around the world. This blog provides a quick review of the case and its noteworthy developments. Read more »

Today, the Sabin Center filed an amicus brief on behalf of local governments in support of state and environmental petitioners in California v. EPA, the lawsuit challenging the Environmental Protection Agency (EPA)’s revised determination on the appropriateness of the greenhouse gas emission and fuel economy standards for light-duty vehicles (commonly referred to as the “clean car standards”).

The clean car standards established under the previous administration are the most important federal measure currently in place to control greenhouse gas (GHG) emissions in the United States. The EPA decision at issue in this case triggered a new rulemaking process which has culminated in a proposal to weaken the standards. States, cities, and environmental groups have filed lawsuits challenging that decision in the D.C. Circuit Court of Appeals.

The local government amicus brief highlights the importance of the clean car standards to cities and counties across the country and provides a local government perspective on why EPA’s decision is unlawful. In particular, members of the local government coalition emphasize the fact that EPA issued its decision without providing adequate opportunities for public engagement – thus excluding local governments from what was supposed to be an open and transparent process – and that EPA has reached erroneous conclusions about the feasibility of meeting the existing standards.

Signatories to the brief include the U.S. Conference of Mayors (USCM); the National League of Cities (NLC); the City of New York, NY; Los Angeles, CA; Chicago, IL; King County, WA; Santa Clara County, CA; San Francisco, CA; Baltimore, MD; Oakland, CA; Minneapolis, MN; Boulder County, CO; Pittsburgh, PA; Ann Arbor, MI; West Palm Beach, FL; Santa Monica, CA; Coral Gables, FL; and Clarkston, GA. This coalition of local governments is representative of the diverse communities affected by the proposed roll back of the clean car standards, and the participating cities and counties are home to more than 22 million people located across the United States.

Read the brief here.

By Peter Lehner, Managing Attorney, Sustainable Food and Farming, Earthjustice

February 2019

Roughly every five years, Congress revises and renews the Farm Bill to fund our nation’s food security, nutrition, and farm conservation programs. The 2018 Farm Bill, which passed with large bipartisan majorities in both chambers, is surprisingly climate-conscious. Its successes will serve as a foundation upon which future more aggressive climate-smart farm policy can be built.

The Farm Bill’s climate change benefits stem from a number of provisions that incentivize more climate-friendly practices. For example, the Farm Bill’s federal crop insurance program will now allow — rather than discourage — greater use of cover crops, a practice that has well-proven climate and water quality benefits. This program, which is now the primary federal subsidy to industrial farming, has often inhibited the use of climate-friendly practices such as cover crops and longer crop rotations, while at the same time encouraging planting on marginal lands, which are better suited as habitat for wildlife, buffers for streams, and carbon sinks. The 2018 law takes steps to end these perverse incentives.

The Conservation title of the bill contains a number of programs that will help curb climate change. This title continues to provide about $6 billion annually to the Conservation Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program, all of which saw modest improvements in the 2018 Farm Bill. The changes to EQIP, which generally provides a 75 percent cost-share for installation of approved conservation measures, best illustrate how these traditional programs can pay climate and environmental dividends, with the added twist of garnering the support of fiscal conservatives.

EQIP data from USDA indicated that only 14 percent of EQIP funding went to conservation practices identified as producing the most environmental benefits. To turn the tide, the new law allows states to identify 10 highly effective conservation practices to be eligible for a greater financial incentive. Since climate change induced farm losses harm both the farmer and the taxpayer — for example, climate-driven natural disasters in 2012 incurred $17.3 billion in crop insurance payments – shifting to more efficient practices is a sound fiscal move as well.

The Bill also increases funding for organic farming and for a range of practices that help store carbon in the soil and emit fewer greenhouse gases. It also lowers the set-aside for EQIP funds for livestock operators from 60% to 50%, which is critical since livestock operations are responsible for about 80 percent of agriculture’s climate change impact.

CRP pays farmers to take environmentally sensitive land out of production for 10 to 15 years.  Because producers often bring their CRP acres back into production when the contract expires, releasing any carbon stored in the soil during the off years, the benefits are often only temporary.  The bill supports climate-friendly practices like riparian buffer and prairie strips and authorizes 30-year contracts on a pilot basis.  The law also provides a minimum number of acres to be enrolled in the program that targets the most environmentally sensitive lands and pays producers to establish tree and grass buffers along streams.  These water quality provisions both have a climate impact and create a precedent for more climate-change-focused amendments in the future.

Finally, the 2018 Farm Bill increases Conservation Stewardship Program payment levels for cover crops, resource-conserving crop rotations, and management-intensive rotational grazing – all of which reduce water pollution, help slow climate change, and help producers weather climate change.  It also establishes a soil health demonstration program, funded at $15 million, setting a good precedent for larger future action by the federal government and states.

The same provisions that fight climate change, will also encourage practices that protect the drinking water of millions. Industrial-scale agriculture — the large chemical-dependent monocultures where the same crop is planted year after year and the production of grain-fed animals in enormous enclosed facilities — is one of the largest sources of water pollution in the country, such as the dead zone in the Gulf of Mexico or the eutrophication of the Chesapeake Bay. This agricultural water pollution can render water unfit for further human use and impose significant drinking water treatment costs on thousands or millions of communities and homeowners, such as when Toledo had to shut its water supply due to algal toxins, or the nitrate contamination in thousands of drinking water wells that could cause “blue baby syndrome.”  As a result of the clear and present threat, Sen. Debbie Stabenow (D-MI), a lead negotiator of the final bill, was able to build bipartisan agreement to support practices that could reduce this pollution.

As a climate bonus, the 2018 Farm Bill also takes some steps to help reduce food waste, most of which now rots in landfills, releasing large amounts of methane.  The bill funds pilot projects in ten states to develop local composting and food waste reduction efforts and promotes the donation of agricultural commodities.  It also creates a Food Loss and Waste Reduction Liaison in the USDA to coordinate federal programs and clarifies liability protections for food donations, among other measures.

This legislation comes at a critical moment, when our country must decide whether and how to deal with the dramatic warming of the planet. Two recent climate reports confirm that we must act on climate change quickly, and that the extreme weather climate scientists have been warning us about are here and will worsen in the years ahead.

Our agricultural activities are both contributors to and victims of the changing climate. At the same time that industrial agriculture releases tremendous amounts of greenhouse gases from excess fertilization, tillage, manure, and animal emissions, our farms and ranches are also particularly vulnerable to the floods, droughts, heat waves, pests, and other problems that climate change exacerbates. For example, the 2016 California drought resulted in over $600 million in economic loss; Hurricane Maria in 2017 devastated 80% of Puerto Rico’s agriculture and caused $780 millionin losses; heat waves threaten both crops and farmworkers.  It’s to everyone’s benefit to help those who produce our food be ready for the changing weather.

Moreover, farmers and ranchers are uniquely situated to help slow climate change simply by preparing for it. Sustainable farmers and ranchers around the country have repeatedly demonstrated that many farming practices can help both slow and withstand climate change. There are many practices that increase carbon stored in soil or that use natural systems to reduce chemical needs and thus lower greenhouse gas emissions. At the same time, they increase the amount of water the soil can absorb and enrich the fertility of the soil, thereby helping farmers endure worsening conditions. These same practices also reduce water pollution and save farmers money.

Given the scale and scope of the climate problem we face, more needs to be done in the next Farm Bill — indeed, much sooner — to accomplish the change needed in the agricultural sector so that it can produce sufficient nutritious food in more extreme weather without making climate change and other pollution worse. This won’t be easy given that theFarm Bureau, one of strongest voices shaping US agriculture policy, repeatedly and fiercely opposes any efforts to curb climate change, and the U.S. Department of Agriculture, as part of Donald Trump’s administration, never mentions climate change. Yet, it’s necessary.

The 2018 Farm Bill, by lifting up practices known to have multiple environmental benefits, is a promising place to start.

[1] An analysis of opportunities to include climate change mitigation and adaption in the farm bill is provided in Lehner & Rosenberg, Legal Pathways to Carbon-Neutral Agriculture (ELR, 2017). This article, in turn was derived from the agriculture chapter in “Legal Pathways to Deep Carbonization in the United States,” edited by Michael Gerrard and John Dernbach (ELI, 2018) (summary and key recommendations available here).