By Michael Burger

News accounts over the last few days have described an ongoing legal debate within the Trump administration over whether the United States should withdraw from the Paris Agreement. Two key questions are reportedly at the center of the debate: First, does the Paris Agreement permit the United States to ratchet down the targets set forth in the Intended Nationally Determined Contribution (INDC or NDC) the Obama administration submitted to the United Nations Framework Convention on Climate Change (UNFCC)? Second, does remaining in the Paris Agreement expose the Trump administration to heightened litigation risk regarding its climate change policies?

The first question is relatively straightforward. The answer is, “Yes.” Article 4.11 of the Paris Agreement states that “A party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.” As U.S. Department of State Legal Advisor Susan Biniaz and Prof. Daniel Bodansky recently wrote, this language plainly allows for countries to change their INDCs and NDCs. (Biniaz has spent 25 years representing the U.S. in international climate negotiations, including the Paris Agreement, and is an adjunct teacher here at Columbia. Bodansky is a leading expert in the field of international climate law and policy.) Indeed, according to former U.S. climate negotiator Todd Stern and others, the language was explicitly written with this possibility in negotiators’ minds. Moreover, there is nothing in the Paris Agreement that prohibits revision of an INDC or NDC to less ambitious emission reduction targets. There is nothing that provides for any supra-national body or any individual country to prevent such revision. And there are no penalties for it.

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May 2017 Updates to the Climate Case Charts

Posted on May 3rd, 2017 by Jessica Wentz

Each month, Arnold & Porter Kaye Scholer LLP 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.



California Appellate Court Upheld Cap-and-Trade Program; Parties Planned Appeal to California Supreme Court

In a split opinion, the California Court of Appeal upheld California’s cap-and-trade program for greenhouse gas emissions. The court ruled that the state legislature had given the California Air Resources Board “broad discretion” to design a system for reducing emissions and that the auction of emissions allowances did not exceed the scope of CARB’s delegated authority. The court further found that the legislature’s subsequent specification of how to spend the auction proceeds ratified use of the auction system. The court also held that auction sales of the emissions allowances were not a tax (which would have been barred unless approved by a two-thirds supermajority of the legislature) because purchase of the allowances was voluntary and because the allowances were “valuable, tradable commodities, conferring on the holder the privilege to pollute.” The purchase of allowances therefore did not bear the “hallmarks” of a tax. One justice dissented from the holding that the sale of the allowances did not constitute a tax. The dissenting justice contended that the purchase of allowances was not voluntary, that the allowances did not confer property rights, and that the court should have considered the use of the auction proceeds as relevant to the question of whether the sales were a tax. The dissenting justice further indicated that he was not convinced by the State’s labeling of “wide and varied uses” of the auction proceeds as “uses that address (not necessarily reduce), however tangentially, greenhouse gas emissions.” Counsel for one set of plaintiffs indicated that its clients would appeal to the California Supreme Court. California Chamber of Commerce v. California Air Resources Board, Nos. C075930, C075954 (Cal. Ct. App. Apr. 6, 2017).
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Michael Burger and Jessica Wentz

Last week, the Office of Information and Regulatory Affairs (OIRA) published final guidance on implementing President Trump’s Executive Order on Reducing Regulation and Controlling Regulatory Costs, which directs all agencies to control regulatory costs by: (1) ensuring that the “incremental costs” of all new regulations that are finalized this year, including repealed regulations, are no greater than zero, and (2) identifying two regulations to repeal for every new regulation that is proposed.  As we previously wrote, that order conflicts with existing legal mandates and undermines congressional authority. (See  here and here.)  In particular, the order places federal agencies in an untenable position by directing them to make decisions about whether to issue or repeal regulations based on factors that fall outside of the scope of the statutes they are implementing. As noted by the Supreme Court, regulatory decisions cannot rest on “reasoning divorced from the statutory text.”

The guidance issued last week solidifies and reinforces the fundamental legal problems with the original order. With respect to the 2-for-1 directive, the guidance clarifies that agencies should do more than simply identify two regulations for potential repeal for every one regulation issued – rather, it specifies that agencies must actually issue two “deregulatory actions” for each “regulatory action” undertaken. With respect to the zero-incremental-costs directive, the guidance confirms that regulatory benefits such as public health benefits and energy efficiency savings should not be accounted for when measuring the “incremental costs” of regulatory actions.

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How Impact Assessment Can Lead to “Climate Smart” Projects

Posted on April 13th, 2017 by Jessica Wentz
 1 comment  

by Jessica Wentz

Last week, I traveled to Montreal to attend the International Association for Impact Assessment (IAIA) annual conference. The theme of this year’s conference was “Impact Assessment’s Contribution to the Global Efforts in Addressing Climate Change” – a topic that we have explored in great depth at the Sabin Center (projects and publications available here). The key goal of the conference was to share information about how climate change considerations can be integrated into impact assessments and how this integration can lead to more “climate smart” projects, i.e., projects that have a smaller carbon footprint and projects that are more resilient to the effects of climate change.

I gave a presentation on our model protocols for assessing the effects of climate change on proposals undergoing environmental review. The audience consisted primarily of impact assessment practitioners – engineers, hydrologists, and other scientists who assess the impacts of actions proposed by government agencies and private project proponents. Many of them told me that they were excited to learn about the protocols because they are currently in need of guidance on how to assess climate change risks and vulnerabilities in the context of these reviews. They also found it helpful to have examples of situations where an evaluation of how climate change may affect the proposed action would be essential to a sound impact analysis, such as:

• A wastewater treatment plant or a facility containing hazardous substances that is located along a coastline or in a floodplain

• A natural resource management plan that establishes sustainable yield limits for a particular resource or landscape, such as a fishery or a rangeland.

There were also several members of the regulatory community – that is, the regulators that establish the requirements for impact assessment – who were interested in adopting similar guidance.  The protocols are particularly well-suited for this use. They were drafted in an intentionally broad manner in order to provide a framework that can be adopted in different jurisdictions to cover a wide range of projects. The IAIA is also working on a broader guidance document which would cover all aspects of how climate change and greenhouse gas (GHG) emissions should be addressed in impact assessments. IAIA’s goal is to develop a standardized protocol for the international community that could potentially be adopted by the United Nations Framework Convention on Climate Change (UNFCCC).

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Last month, ProPublica published a list of more than 400 officials that President Trump has quietly appointed at agencies across the federal government. These officials were given beachhead positions that do not require Senate confirmation and have received far less attention in news outlets than those who do require confirmation. While some of these appointments may be temporary – the primary purpose of the beachhead appointees is to ensure a smooth transfer of power while permanent leaders are nominated and confirmed – one GOP strategist close to the transition has noted that they are “almost guaranteed a job” if they want one at the department.

To shed more light on some of these appointments, the Sabin Center undertook an investigation of 88 officials who were installed at environmental, energy, and natural resource management agencies. Here is what we found:

More than half (50/88, 57%) of the appointees appear to lack expertise and/or experience that would be directly relevant to the core missions of the departments and agencies that they have joined.*  Some of the appointees in this category are recent college graduates with almost no work experience apart from involvement in the Trump campaign and other GOP campaigns.  There are also quite a few public relations professionals who, while having connections to the industries that are regulated and managed by these agencies, do not have any experience in regulating, governing, or otherwise managing those industries.

This trend is most apparent at the Environmental Protection Agency (EPA), where only 2 of the 11 appointees had relevant experience in environmental protection or regulation (1  has since left the agency). But lack of relevant experience is also a major issue at the Department of Energy (DOE), where more than half (17/28, 61%) of the appointees lacked expertise that would be directly relevant to energy policy and regulation, and the Department of Commerce (13/19, 68%).

More than one quarter of the appointees have close ties to the fossil fuel industry (25/88, 28%). For the purposes of this survey, we considered appointees as having close ties if: they were directly involved in advocacy on behalf of coal, oil, and gas companies; they worked at fossil fuel-funded think tanks and published articles advocating for greater use of fossil fuels; or they had fossil fuel companies as clients when they worked in the private sector. Several of these appointees are registered lobbyists who have lobbied on behalf of the industries they would be regulating or managing; others, while not registered lobbyists, have played a very similar function in their role as consultants. Once again, this trend is most apparent at EPA, where almost two-thirds of the appointees (7/11, 64%) have ties to fossil fuel companies.

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Dispatch from Québec, Land of Hydropower

Posted on March 27th, 2017 by Justin Gundlach

by Justin Gundlach

Hydro generating facilities (blue dots) and transmission lines (green lines)

Three weeks ago, at the invitation of the Canadian Consulate and Hydro Québec, I traveled to see two enormous hydropower facilities. One of them, La Grande 2-A, is part of the La Grande Complex of dams, turbines, and electricity substations located in the James Bay region (see map at right). Getting there required a two-hour northward flight from Montreal (the road trip would take about 15 hours). The other facility, the Beauharnois Generating Station, is located just outside Montreal. I was one of a number of academics, economists, and attorneys that Hydro Québec and the Canadian government thought would be interested to know more about Canadian hydropower—in particular, its potential to meet demand in the New York and New England regions for large volumes of reliable, low-emissions electricity.

Even those who don’t want to see more imported Canadian electricity would have to concede that electricity policy and operations in Québec, New England, and New York are compatible. First, all three regions assign prices to the greenhouse gas emissions from their electricity sectors. Second, there is excess supply in Québec and robust demand for new low-emitting capacity in New York and New England. That demand is the result of  some of the highest electricity prices in North America, ambitious state-level greenhouse gas emissions reduction goals, and growing numbers of nuclear power plant closures throughout the region. Furthermore, whereas Québec experiences peak electricity demand in the winter (most heating there is electric), New England and New York experience peaks in the summer (cooling here is electric), meaning that the regions would seldom compete for the output of Hydro Québec’s reservoirs.

The only missing piece of the puzzle—or circuit, if you like—is transmission capacity. Existing interconnections allow Hydro Québec to send about 30 terawatt hours (TWh) of hydroelectricity south each year. The company would like to supply twice that amount (it won’t reveal specifics about its maximum current or future potential capacity). Read on below the jump for more background about Canadian hydropower, how state laws in the U.S. are driving demand for such resources, the status of transmission line plans, the players and arguments involved, and a short description of how federal law bears upon the development of cross-border transmission capacity.

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Site of the first oil well drilled by Edwin Drake in 1859

Around this time of year, back in 1859, the first oil well was drilled by Edwin Drake in north-west Pennsylvania. After a slow start – drilling initially progressed at a rate of just three feet per day – Drake struck it lucky and hit oil at a depth of 69.5 feet. The oil was brought to
the surface with a primitive hand pump and collected in a bathtub while the associated natural gas escaped into the atmosphere.

A lot has changed in the subsequent 150 years. The oil and gas industry has developed into one of the country’s most technologically advanced, able to drill deeper and access reserves that Drake never would have foreseen. Despite these advances, however, some things have remained the same. To this day, oil drillers still often allow natural gas to escape into the atmosphere, rather than capturing it. Releases also occur during gas production due to accidental leaks, intentional venting, and incomplete flaring at well sites, storage facilities, and transport systems. The Obama Administration had tried to change that, adopting various regulations to reduce gas leaks, venting, and flaring. These regulations are unlikely to survive under President Trump, however. That’s bad news for anyone concerned about climate change. Or the environment and public health more generally.

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New: Adaptation Resource Database

Posted on March 23rd, 2017 by Jessica Wentz

The Sabin Center has introduced a new item to our collection of legal resources – a compilation of Legal Resources for Climate Change Adaptation.

The new page includes information about specific legal provisions that could be interpreted as requiring consideration of climate change-related risks, articles discussing the nature of legal obligations to adapt, and resources to facilitate adaptation planning efforts undertaken by government and private actors. It is intended as a complement to our Handbook of Adaptation Advocacy Strategies and other publications on the topic of adaptation. Some of the topics covered include:

•  Federal laws that can be interpreted as requiring the federal government or private actors to prepare for and mitigate risks related to climate change

•  Common law doctrines that can be used to compel government actors to prepare for and mitigate risks related to climate change

•  The role of local land use and planning laws in climate change adaptation

•  The role of building codes in climate change adaptation

•  The extent to which contractual, fiduciary and professional obligations entail obligations related to the disclosure and/or mitigation of climate change-related risks

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Want to Join Our Team? The Sabin Center is Hiring a Staff Attorney

Posted on March 22nd, 2017 by Romany Webb

The Sabin Center is looking to hire a staff attorney to work with us from September 2017 to September 2018. The attorney will develop and implement strategic research concerning climate change mitigation and adaptation, contribute to advocacy-oriented programs and projects, assist with the research administration of the Center, and supervisor interns and volunteers.

Applicants must have received a J.D. or equivalent degree, and should have 3 years of work experience in environmental, energy or natural resources law and policy. Ability to exercise independent judgment, work under pressure, supervise multiple research and support staff, work with students from the law school and other graduate and undergraduate programs, and prioritize and carry out multiple tasks with minimal supervision is a must.

For more information about the position and instructions on how to apply, visit


Tiffany joined the Sabin Center for Climate Change Law in February 2017. She graduated in 2015 with a Master’s Degree in Sustainability Science and Education from the Graduate Center at CUNY. During her studies, she conducted fieldwork on climate change adaptation and sustainable food production practices, and performed community outreach in the small island developing state of Barbuda, West Indies. Tiffany also interned at the United Nations Development Programme’s Equator Initiative, supporting communications efforts and developing case studies. She has also worked as a Communications Consultant at UNDP for the Environmental Governance Programme. She is thrilled to be on board and to support the Sabin Center for Climate Change Law team with strategic communications.

Contact information

Phone: 212-854-0594


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