Climate Law Blog

By Daniel J. Metzger

Flooding in Houston following Hurricane Harvey. Photo: U.S. Army by 1st Lt. Zachary West

Climate change attribution science provides the evidentiary basis for establishing that anthropogenic climate change is real, that it is already here, and that predicted future changes must be taken seriously. Faced with this growing body of research, courts, policy-makers, and private actors are addressing critical and urgent legal questions, such as whether governments are doing enough to reduce emissions and adapt to climate risks, and whether corporations can be held liable for their contributions to the problem. 

Today the Sabin Center and Lamont-Doherty Earth Observatory are launching the Climate Attribution Database, a thematically organized repository of state-of-the-art climate change attribution science.

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Charleston, SC filed suit against fossil fuel companies alleging their responsibility for “devastating” climate change impacts. (Source: Khanrak)

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 # 138.

FEATURED CASE

Federal Court in Rhode Island Allowed Failure-to-Adapt Claims to Proceed

The federal district court for the District of Rhode Island for the most part denied a motion to dismiss a citizen suit asserting that Shell Oil Products US and other defendants (Shell) failed to prepare a terminal in Providence for the impacts of climate change. Although the court found that the plaintiff, Conservation Law Foundation (CLF), lacked standing to the extent its claims relied on “future harms,” the court concluded that CLF had asserted “certainly impending harm” as to “near-term harms from foreseeable weather events.” In particular, the court found that the complaint “makes clear that a major weather event, magnified by the effects of climate change, could happen at virtually any time, resulting in the catastrophic release of pollutants” due to Shell’s alleged failure to adapt. The court further found that CLF’s members’ alleged injuries to their use and enjoyment of waters and roads in the terminal’s vicinity flowed from the alleged failure to prepare the terminal for the impacts of climate change. For the same reasons, the court found that the case was ripe for adjudication. The court also concluded that the complaint stated claims under the Resource Conservation and Recovery Act (RCRA), except to the extent the claims were based on federal, instead of state, RCRA regulations. The court found that CLF pleaded facts satisfying the “imminent and substantial endangerment” standard on the theory that the alleged failure to prepare the terminal for foreseeable weather events was an imminent endangerment. The court also found that the complaint stated claims under the Clean Water Act related to the terminal’s National Pollutant Discharge Elimination System permit. The court said the plaintiff’s claims required interpretation of the permit, including whether its requirement of “good engineering practices” required preparing the terminal for catastrophic weather. In addition, the court declined to exercise its discretion to abstain or to apply the doctrine of primary jurisdiction. Conservation Law Foundation v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. Sept. 28, 2020).

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By Daniel J. Metzger and Romany M. Webb

   President Trump meets with energy company executives in April 2020. Source: The White House.

Last week Vice President Pence expressed how “very proud” he is of the administration’s environmental record and declared that, if re-elected, President Trump will “take care of our environment and follow the science.” That would be a marked departure from the President’s first term. As documented in the Silencing Science Tracker, for nearly four years, President Trump and his  administration have consistently censored, misrepresented, and stifled scientific research and discussion. Many of the administration’s actions have targeted climate scientists, who have been removed from their positions, prevented from publishing their research, or had their findings misrepresented or simply ignored by officials. Instead of relying on science, the administration has turned to industry for advice, and put their priorities first.

Many have assumed that if President Trump is re-elected he and his administration will continue with their pro-industry agenda. But what specific actions might that entail? The Trump campaign has not issued any position papers outlining its climate priorities. The President and several administration officials have, however, recently expressed views on climate change and on whether and how it should be addressed. Based on their statements and actions taken during President Trump’s first term, we have identified eight energy and environmental policy objectives we believe are likely to be pursued if Trump is re-elected:

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By Romany Webb

At 6:38pm on August 14, the California Independent System Operator (CAISO)—the entity that manages much of California’s electricity grid—ordered electric utilities to initiate temporary rolling service cuts. As a result, nearly half a million customers lost electricity, some for over two hours. The following evening, over 320,000 customers lost electricity for up to ninety minutes, again due to CAISO ordered service cuts. Many were quick to blame the outages on the high level of renewable generation in California (see here and here for examples). The editorial board of the Wall Street Journal went so far as to declare the outages “a warning to the rest of America about the risks of Green New Deal policies.” In fact, however, the outages highlight the risks of failing to adopt policies to mitigate further climate change and plan for climate impacts that are already occurring or locked in.

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This publication is based on a piece drafted for Perry World House and made possible in part by a grant from the Carnegie Corporation of New York. The views expressed are solely the author’s.

Amidst the federal government’s struggle to contain a public health crisis as the U.S. presidential election nears, the House Select Committee on the Climate Crisis rolled out its own plan for averting catastrophe. Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and Healthy, Resilient, and Just America (Climate Plan) presents a roadmap for counteracting the climate crisis by building a green economy that prioritizes workers and environmental justice. Although the Climate Plan laudably centers equity, it misses the mark when it comes to climate-induced migration. Framing climate-induced migration solely as a national security threat, the Climate Plan avers the transnational impact of U.S. carbon pollution. For those federal governments interested in climate equity, centering a global perspective that includes those displaced, especially from small island developing states (SIDS), remains critical. Read more »

By Romany Webb

Despite scientists’ dire warnings about the catastrophic impacts of climate change, the greenhouse gases that cause it continue to be emitted in substantial amounts. There is no question that deep, across the board cuts in greenhouse gas emissions are essential, but many scientists now agree that simply cutting future emissions will not be enough. It will also be necessary to remove previously-emitted greenhouse gases from the atmosphere. This could be achieved in a number of ways, including through enhanced weathering, which aims to accelerate natural processes whereby carbon dioxide reacts with silicate-rich rocks. While enhanced weathering has been the subject of much scientific research in recent years, it has received little attention from the legal community. A new Sabin Center white paper, published online today, provides the first comprehensive analysis of legal issues associated with the performance of enhanced weathering on land and in the oceans.

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                   Wind farm (Source: Z22)

By Michael Burger and Hillary Aidun

Last week the Sabin Center and the American Bar Association held an event on addressing landowner concerns in renewable energy siting. Wind and solar farms often spark siting battles between local residents who welcome renewable energy projects and their neighbors who are concerned about visual or other impacts. But renewable generation is not sufficient to decarbonize the electric sector; infrastructure that delivers clean electricity to consumers is also critical. (The Sabin Center’s Renewable Energy Legal Defense Initiative provides pro bono legal counsel to community members who support renewable energy projects.) 

Transmission lines are, like generation facilities, often held up by litigation. Following a slew of recent cases scuttling or hamstringing new oil and gas pipelines, some have commented that it may now be even harder to develop transmission capacity for renewable energy. However, as explained below, siting decisions for pipelines and transmission lines are governed by different laws, and while both are subject to environmental review, their environmental impacts are not comparable. The recent pipeline decisions turned mostly on water quality concerns that are specific to oil and gas projects. Power lines present their own issues that need to be addressed, to be sure, but they are unlikely to be impacted by the recent spate of pipeline cases.

Three Regulatory Regimes

Natural gas, oil, and electricity transmission are each subject to distinct regulatory schemes. Construction and operation of an interstate natural gas pipeline requires a certificate of public convenience and necessity from the Federal Energy Regulation Commission (“FERC”) under Section 7 of the Natural Gas Act. Local natural gas distribution lines—which connect consumers to interstate pipelines—are owned and operated by local distribution companies, which are typically regulated by state public utility commissions. In contrast to the natural gas permitting scheme, no federal law provides a specific approval process for siting oil pipelines. Depending on the state, a pipeline company may need the state utility commission, governor, or legislature to approve a proposed route; interstate pipelines may require approvals from multiple states. However, both natural gas and oil pipelines that cross the border to Canada or Mexico require a Presidential permit. Additionally, both types of pipelines need approval from a number of federal agencies depending on their routes and potential impacts. For example, a project that may discharge dredged or fill materials into waters of the United States, or that crosses navigable waters, requires a permit from the U.S. Army Corps of Engineers (“the Corps”); a pipeline that traverses public lands needs a right-of-way from the Bureau of Land Management, U.S. Forest Service, or other agency with jurisdiction over the land. Before a federal agency can issue such a permit it must comply with the National Environmental Policy Act (“NEPA”), issuing either an environmental impact statement or a determination that a full review is not needed.

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This week, Korey Silverman-Roati joins the Sabin Center as a Climate Law Fellow. Korey’s work will focus on, among other areas, international climate change litigation, carbon dioxide removal and solar radiation management research, and other fast action climate strategies.

Korey graduated from Harvard Law School in 2017, where he spent three years editing with the Harvard Environmental Law Review and worked with both the environmental and international human rights clinics. He received a Public Service Venture Fund Fellowship to start work at IGSD and a Chayes International Public Service Fellowship to work for a summer at the Center for Public Interest Law in Accra, Ghana. Prior to law school, Korey spent a year in Erzurum, Turkey on a Fulbright English Teaching Assistantship and graduated from Arizona State University with a B.S. in Sustainability.

By Margaret Barry

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 # 137.

FEATURED CASE

Second Circuit Reinstated Penalty Increase for Fuel Economy Violations

The Second Circuit Court of Appeals vacated the National Highway Traffic Safety Administration’s (NHTSA’s) reversal of a 2016 increase to the penalty for violations of fuel economy standards. In 2016, NHTSA increased the penalty pursuant to Federal Civil Penalties Inflation Adjustment Act Improvements Act (the Improvements Act) from $5.50 to $14 for every tenth of a mile per gallon below the applicable standard, multiplied by the number of cars in a manufacturer’s fleet. In 2019, NHTSA reversed the increase based on its conclusion that the Improvements Act did not apply to the fuel economy penalty and that, even if the Act did apply, the penalty’s “negative economic impact” was sufficient to support reversal. The Second Circuit rejected both rationales. First, the Second Circuit held that the penalty was a “civil monetary penalty” under the Improvements Act. NHTSA therefore was required to adjust the penalty rate in accordance with the Improvements Act’s requirements. Second, the court held that reconsideration and reversal of the increase based on economic consequences was untimely and therefore beyond NHTSA’s authority. New York v. National Highway Traffic Safety Administration, Nos. 19-2395 & 19-2508 (2d Cir. Aug. 31, 2020).

DECISIONS AND SETTLEMENTS

Ninth Circuit Order Stayed Mandate After Affirming Remand of California Local Governments’ Climate Cases to State Court

In cases brought by San Mateo County and other California localities seeking climate change-related damages from fossil fuel companies, the Ninth Circuit granted the companies’ motion to stay the mandate after the Ninth Circuit affirmed a district court order remanding the cases to state court. The companies argued that a stay was warranted because their petition for writ of certiorari would raise the substantial question of whether a court of appeals may review any issue in a district court order granting remand where removal was based in part on the federal-officer removal statute or whether, as the Ninth Circuit ruled, the appellate court’s jurisdiction is limited to reviewing the district court’s decision on the federal-officer removal issue. The companies also argued there was good cause for a stay because remand would result in six cases being returned to four different state courts for proceedings, potentially forcing the defendants “to incur substantial burden and expense.” The Ninth Circuit stayed the mandate pending the Supreme Court’s action on the certiorari petition and, if the Supreme Court grants the petition, pending disposition of the case. The companies also filed a motion in the district court to confirm that the court’s orders staying issuance of the remand orders pending appeal would extend to the conclusion of any Supreme Court proceedings. On August 20, the court issued an order clarifying the stay was intended to remain in place until the mandate issued and that the companies could have requested an additional stay. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. Aug. 25, 2020), Nos. 3:17-cv-04929 et al. (N.D. Cal. Aug. 20, 2020).

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By Christine Weniger

The Adirondacks, NY (Source: Colin Hughes)

In April 2019, both houses of the New York legislature voted to add a new section to New York’s constitutional Bill of Rights declaring: “ENVIRONMENTAL RIGHTS: EACH PERSON SHALL HAVE A RIGHT TO CLEAN AIR AND WATER, AND A HEALTHFUL ENVIRONMENT” (capitalization in original). If the amendment is passed by both houses again in the 2021-2022 legislative session, voters will have the final word on its adoption in a state-wide referendum. This could happen as early as November 2021. According to the bill’s very brief official justification, constitutionalizing a right to the environment is warranted by “recent water contamination and ongoing concerns about air quality” in the state and “intends to ensure that clean air and water are treated as fundamental rights for New Yorkers”. 

Inserting an environmental right into New York’s constitution sparked heated debates ahead of a 2017 referendum giving New Yorkers the opportunity to convene a Constitutional Convention, which is the other way to amend the state constitution. The New York State Bar Association’s Environmental and Energy Law Section published a detailed analysis and recommended the adoption of a constitutional environmental right. It advised that such a right should include a governmental public trust duty, expressly reference the interests of future generations, and be made self-executing against all state government bodies (but not against private parties). In November 2017, the referendum to call a Constitutional Convention overwhelmingly failed; non-environmental issues dominated the debate. The State Assembly passed bills adopting the environmental amendment in 2017 and 2018, but they got nowhere in the Senate until the Democrats took over control of the Senate in 2019. Read more »