Climate Law Blog

By Romany Webb

       Downed power lines. Credit: FEMA Photo Library.

Two days after making landfall in the Florida Panhandle, Hurricane Michael has now moved out to sea, leaving behind damage that could take years to repair. In Florida’s Mexico Beach, where Michael first hit as a category four storm, entire blocks of homes and businesses have been destroyed. Further inland, more structures remain standing, but many are uninhabitable, including due to a lack of essential services. As of Thursday, October 11, at least 1.5 million homes and businesses across Florida, Georgia, Alabama, the Carolinas, and Virginia were without electricity. Restoring service could take days or even weeks as, in many areas, the transmission and distribution systems needed to deliver electricity have been completed wiped out.

This is a familiar story. Just last month, Hurricane Florence resulted in one million customers in the Carolinas losing electricity, primarily due to downed transmission and distribution lines. A year earlier, over three million customers in Puerto Rico lost electricity, after Hurricane Maria destroyed 80 percent of the island’s transmission infrastructure and nearly 100 percent of its distribution infrastructure. Secretary of Energy Rick Perry is confident that this and other similar experiences have prepared us to deal with the 2018 hurricane season, recently telling reporters that “we’ve done this many times before . . . We know how to prepare our plants for these types of major events.” In reality, however, most electric utilities and grid operators are woefully unprepared to deal with the increasingly severe extreme weather climate change will bring. What is required to change that? And how we can ensure it is done?

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By Dena Adler

Photo Credit: Urgenda / Chantal Bekker

Today, the Hague Court of Appeals upheld a lower court ruling that the Dutch government is obligated to limit its greenhouse gas emissions to 25% below 1990 levels by the end of 2020. The case, Urgenda Foundation v. The State of Netherlands, decided by the district court in 2015, marked a watershed moment for climate change litigation — it was the first court decision in the world to order a state to limit its greenhouse gas emissions for reasons other than a statutory mandate. Brought by a Dutch environmental group, the Urgenda Foundation, and 886 Dutch citizens, the suit argued that the government’s inadequate action on climate change violated a duty of care to protect plaintiffs’ rights under European Convention on Human Rights (ECHR) and the Dutch constitution. After the district court decision, which found that the Dutch constitution reflects a duty of care to address climate change, the Dutch government appealed on 29 grounds. Urgenda also submitted a cross-appeal, contesting the court’s decision that Urgenda cannot directly invoke plaintiffs’ rights under the ECHR in these proceedings.

The Hague Court of Appeals concluded that “the State is acting unlawfully (because in contravention of the duty of care under Articles 2 and 8 ECHR) by failing to pursue a more ambitious reduction as of end-2020, and that the State should reduce emissions by at least 25% by end-2020.” Broadening the victory for Urgenda, the court recognized Urgenda’s capacity to directly bring claims under the ECHR to uphold plaintiffs’ rights to life (under ECHR Article 2) and rights to private life, family life, home, and correspondence (under ECHR Article 8). Further, the court determined that climate change poses “a real threat” to these rights, triggering a government obligation to act. Read more »

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 # 114.

FEATURED CASE

Seventh and Second Circuits Upheld Illinois and New York Subsidies for Nuclear Generation

On September 13, 2018, the Seventh Circuit Court of Appeals upheld an Illinois law that established subsidies for some in-state nuclear generation facilities by providing them with “zero emission credits” (ZECs) that fossil fuel-fired power plants were required to purchase. The price of the credits was based on a social cost of carbon. The Seventh Circuit held that the Federal Power Act did not preempt the Illinois law because the ZEC program stayed within the scope of the state’s authority to regulate power-generating facilities and did not impinge on the Federal Energy Regulatory Commission’s (FERC’s) authority to regulate sales of electricity in interstate commerce (including in auctions conducted by regional organizations). The plaintiffs asserted that the ZEC system indirectly regulated such auctions because average auction prices were a component of the formula for determining the cost of a credit. The Seventh Circuit concluded, however, that because the ZEC system did not require that power be sold in an interstate auction, it was not preempted, even though the ZEC system would indirectly influence auction prices by increasing the quantity of power available for sale. In addition to the preemption question, the Seventh Circuit also briefly addressed the plaintiffs’ dormant Commerce Clause claims, writing that Congress’s provision that states may regulate local generation, combined with the “absence of overt discrimination” in the ZEC program, “defeats any constitutional challenge.” Electric Power Supply Association v. Star, No. 17-2445 (7th Cir. Sept. 13, 2018).

Two weeks later, the Second Circuit Court of Appeals affirmed the dismissal of a lawsuit challenging New York State’s ZEC program, which subsidizes qualifying nuclear power facilities. As in the Illinois program, the price of ZECs is based on the social cost of carbon. The Second Circuit concluded that the Federal Power Act did not preempt the ZEC program because the plaintiffs failed to allege “an impermissible ‘tether’” between the ZEC program and wholesale market participation. The Second Circuit found that the ZEC program did not set wholesale prices, but instead “regulates the environmental attributes of energy generation and in the process considers forecasts of wholesale pricing.” The Second Circuit also concluded that ZECs did not compel generators to make wholesale sales. In addition, the court rejected the argument that the “practical effect” of the ZEC program was to regulate wholesale prices, stating: “even though the ZEC program exerts downward pressure on wholesale electricity rates, that incidental effect is insufficient to state a claim for field preemption under the [Federal Power Act].” The court also rejected the plaintiffs’ attempts to distinguish ZECs from renewable energy credits, which FERC previously confirmed were within states’ jurisdiction. The Second Circuit also found that the plaintiffs failed to identify “clear damage to federal goals,” foreclosing their claim of conflict preemption. While the plaintiffs argued that the ZEC program was at odds with the FERC’s goal of promoting competition in the wholesale market from more efficient generators, the court said FERC acted “with the background assumption that the [Federal Power Act] establishes a dual regulatory system between the states and federal government and that the states engage in public policies that affect the wholesale markets.” Finally, the Second Circuit held that the plaintiffs lacked Article III standing for a dormant Commerce Clause claim. The court said the plaintiffs’ alleged injuries arose not from alleged discrimination against out-of-state entities, but from the plaintiffs’ use of fuels disfavored by New York. Coalition for Competitive Electricity v. Zibelman, No. 17-2654 (2d Cir. Sept. 27, 2018).

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By Ama Francis

Five sports entities explained why they have become industry leaders by engaging with voluntary carbon offset markets at Friday’s Sports and Climate Change Summit.

   Photo courtesy of South Pole

The New York Yankees, New York Mets, NASCAR, U.S. Tennis Association (USTA), and Major League Soccer (MLS) are each purchasing carbon offsets from cookstove projects in low-income African countries in order to meet their own sustainability goals. The Yankees financed 4500 cookstoves in Mozambique, while NASCAR is offsetting all employee travel with carbon credits from cookstoves in Zimbabwe. Collectively, the five entities have reduced 39,443 metric tons of CO₂ by purchasing carbon offsets from cookstove programs in low-income countries in Africa—the equivalent of 8446 passenger vehicles driven for one year.

“It’s the right thing to do and it’s good business,” said Yankees Senior Vice President Doug Behar. “When we saw the impact on human life it made too much sense not to do it.”

Approximately 3 billion people worldwide still cook on open fires or stoves fueled by charcoal, biomass and kerosene. Burning unsustainably harvested wood fuel contributes to approximately 2% of global greenhouse gas emissions. Exposure to these cooking practices can also be deadly. The World Health Organization reports that nearly 4 million premature deaths per year are “attributable to household air pollution from inefficient cooking practices.” Cooking on open fires and simple biomass and charcoal-fired stoves also disproportionately burdens women and children. They experience greater exposure to household air pollution since they are typically responsible for household chores, and spend multiple hours per day collecting fuel. One study found that women in India spend 374 hours a year collecting firewood.

Cleaner cookstoves and fuels lead to positive environmental, health, and gender outcomes. Improved efficiency cookstoves can offset one to two tonnes of CO₂ emissions per year, while also improving health, quality of life, and livelihoods. A recent report by the Gold Standard Foundation found that a single clean cookstove  delivers USD$151 in additional social and economic benefits. Nevertheless, financing for clean cooking initiatives has lagged.

Carbon offsets markets provide one stream of finance, and many cookstove programs have long been generating carbon credits. For example, Envirofit, a social enterprise that has developed a range of clean cooking products, has been leveraging carbon finance since 2012, with Certified Emissions Reduction (CER) programs certified under the Clean Development Mechanism (CDM) and the Gold Standard Foundation (whose certification also captures sustainable development co-benefits).

Yet both compliance and voluntary carbon markets present challenges for clean cookstove entities seeking finance. The current price for CERs is $0.35. But emissions reductions from improved cookstove projects costs $5-8/tCO₂e, meaning that offset prices must hover around $10/ tCO₂e to make offsets a valuable source of funding for these projects. Cookstove projects have fared slightly better in voluntary markets. Clean cookstove offsets from Africa sold at $5.1/tCO₂e on average in 2016. But the voluntary market could be on the rise, with a record number of issuances and retirements in 2017.

As corporations, individuals and other non-government actors look to increase their climate engagement, buying carbon offsets in the voluntary market presents one way to meet sustainability targets. This is not only true for sports entities. In April this year, Lyft went carbon neutral, using carbon credits purchased from the sustainability firm 3 Degrees to offset the carbon footprint from its rides. American University, which claims to be the first U.S. university to achieve carbon neutrality, buys carbon credits from cookstove programs in Kenya to offset greenhouse gas emissions it simply cannot eliminate. While reducing direct emissions remains a critical piece of the climate puzzle, and green projects must be attentive to social impacts on the ground, there will likely be unavoidable emissions such as air travel. Offsetting these unavoidable emissions can help support clean cooking technology, and other ventures with sustainable development benefits.

If NASCAR seeking to address climate change strikes you as ironic, you’re not alone. But they have a clear rationale: “80% of NASCAR fans believe in climate change,” said director of Green Innovation at NASCAR, Catherine Kummer. “We can’t minimize everything, but this aligns with our mission.”

By Romany Webb

In January, the Sabin Center and Climate Science Legal Defense Fund launched the Silencing Science Tracker (SST). As its name suggests, the SST records government attempts to prevent or restrict scientific research, education, or discussion since the November 2016 election. Initially, the SST only recorded anti-science behavior within the federal government, of which we have 161 examples. That does not, however, reflect the full extent of the “war on science” as numerous anti-science actions are also being taken by state and local governments. To increase awareness of those actions, we have expanded the SST, adding state and local government attempts to censor, misrepresent, or otherwise stifle science.

             Figure 1: Breakdown of SST Entries by Actor

As of Monday, September 24, the expanded SST lists 257 anti-science actions taken by government actors since the November 2016 election. Of those actions, 63 percent (161) were taken by the federal government, and 37 percent (96) by state and local governments. Unsurprisingly, many of the state and local government actions are concentrated in just a handful of areas, which have a long-history of anti-science behavior. Florida leads the way with 10 entries, followed by Texas and Wisconsin with 7 each, and then Iowa, Kentucky, Louisiana, and Oklahoma with 5 each. It would, however, be a mistake to think that anti-science behavior is limited to a small number of “rogue” states. On the contrary, such behavior has occurred in at least 38 states since November 2016, including many often thought of as leaders on scientific issues, such as California and Vermont.

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Edited by Michael Burger (Sabin Center for Climate Change Law), Teresa Parejo (UN Sustainable Development Solutions Network) and Lisa Sachs (Columbia Center on Sustainable Investment).

With research and administrative support from Nathan Lobel (Columbia Center on Sustainable Investment).

On May 10, 2018, the United Nations General Assembly (UNGA) adopted Resolution 72/277 (“Toward a Global Pact for the Environment”), which calls for the Secretary General to submit “a technical and evidence-based report” on “possible gaps in international environmental law and environment-related instruments” at the 73rd session of the UNGA. The resolution also establishes an “ad hoc open-ended working group… to consider the report and discuss possible options to address possible gaps.”

As the UNGA convenes this week, we are bringing together independent thought leaders and legal scholars from around the world to weigh in on what, if anything, the process initiated by UNGA Resolution 72/277 might usefully accomplish; and what the United Nations agencies, national governments and civil society stakeholders engaged in the process could usefully consider. Together, these perspectives identify a number of existing issues that merit attention and, if heeded, might inform negotiations on the future of international environmental governance. 

• Marisol Anglés Hernández, Researcher, Institute for Legal Research, National Autonomous University of Mexico
• Sumudu Atapattu, Director of Research Centers and Senior Lecturer, University of Wisconsin Law Schoo
• Lisa Benjamin, Visiting Assistant Professor of Law, Pennsylvania State University
• Susan Biniaz, Former Deputy Legal Advisor, US State Department; Senior Fellow, Jackson Institute for Global Affairs at Yale University; Associate Researcher, IDDRI; Senior Advisor, Center for Climate and Energy Solutions
• Daniel Bodansky, Foundation Professor of Law, Arizona State University Sandra Day O’Connor College of Law
• Ben Boer, Distinguished Professor, Research Institute of Environmental Law, Wuhan University; Emeritus Professor, University of Sydney
• David R. Boyd, Special Rapporteur on Human Rights and the Environment, United Nations Human Rights Council
• Maxine Burkett, Professor, University of Hawaii at Manoa William S. Richard School of Law
• Bharat H. Desai, Professor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Jawaharlal Nehru University
• Fabrizio Fracchia, Professor, Department of Law, Bocconi University
• Pilar García Pachón, Director, Department of Environmental Law, Externado University, Colombia
• Michael B. Gerrard, Professor, Columbia Law School
• John H. Knox, Henry C. Lauerman Professor of International Law, Wake Forest University School of Law
• Pilar Moraga Sariego, Professor, University of Chile
• Damilola S. Olawuyi, Associate Professor of Law, Hamid Bin Khalifa University College of Law and Public Policy
• Nilufer Oral, Faculty of Law, Istanbul Bilgi University; Member, United Nations International Law Commission; Member, IUCN World Commission on Environmental Law
• Luciano Parejo Alfonso, Administrative Law Professor Emeritus, Carlos III de Madrid University
• Jorge E. Viñuales, Professor of Law and Environmental Policy, University of Cambridge
• Alex L. Wang, Professor of Law, UCLA School of Law

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By Jessica Wentz

In July, the U.S. Fish and Wildlife Service (FWS) and NOAA Marine Fisheries (NMFS) issued a sweeping proposal to amend key provisions of the Endangered Species Act (ESA), including provisions pertaining to listing decisions, critical habitat designations, and interagency consultations. Much has already been written about how this proposal would weaken ESA protections, particularly for threatened species, and make it easier for projects to gain approvals despite potentially adverse impacts on endangered and threatened species. This blog takes a closer look at how the proposed amendments could affect ESA management decisions for species that are imperiled by climate change.

Generally speaking, any weakening of ESA protections could undermine efforts to maintain biodiversity and ensure species survival in the context of rapidly changing climatic and biological conditions. Many scientists believe that a mass extinction event is already underway as a result of human activities (the “Holocene extinction”) and that climate change is and will be a significant driver of extinctions.  In this context, new tools and approaches are needed to improve protections for species that face an existential threat due to climate change. FWS and NMFS could also benefit from clear guidance on how to account for climate change-related threats in ESA management decisions.

The proposed amendments do the opposite. They do introduce vague standards which appear to be aimed at limiting the extent to which observed and projected climate change impacts can serve as a basis for listing decisions, critical habitat designations, and interagency consultations. (This purpose is not explicit, but it is the most likely explanation, in light of the current administration’s deregulatory efforts.) The four provisions are discussed below.

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By Romany Webb

On Tuesday, September 18, the Department of the Interior’s Bureau of Land Management (BLM) finalized changes to its so-called Methane Waste Prevention Rule (“Rule”). The Rule, which was adopted in November 2016, aimed to prevent the loss of natural gas through venting, flaring, and leaks on public lands. BLM estimated that, as a result of the Rule, oil and natural gas producers operating on public lands would capture an additional 41 billion cubic feet of gas each year, enough to supply approximately 740,000 households. The Rule would also substantially reduce emissions of methane – i.e., the primary component of natural gas – which would fall by up to 180,000 tons per year.

Despite these benefits, BLM has announced that it will repeal key provisions of the Rule and reinstate pre-2016 regulations (known as “NTL-4A”), which were first developed in the 1970s. Here are six important things to know about the announcement:

1. The rule change will affect a large number of oil and natural gas operations. The 2016 Rule applied to all oil and natural gas operations – both new and existing – on public and tribal lands. In this context, the term “public lands” refers to areas of land that are owned by the federal government, and managed by BLM. Those areas cover approximately 245 million surface acres and 700 million acres of sub-surface mineral estate. Of that, roughly 26 million acres are currently under lease to oil and natural gas developers, who are currently operating over 94,000 wells. Those wells account for a sizable share of total oil and natural gas production in the U.S. In Fiscal Year 2016 (the latest year for which data is available), onshore energy production on BLM-managed land accounted for seven percent of all oil, and 10 percent of all natural gas, produced domestically.

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By Romany Webb

On Tuesday, September 11, EPA published proposed revisions to its New Source Performance Standards (2016 standards) for new and modified sources in the oil and natural gas sector. The standards, which were finalized in June 2016, formed a central plank of the Obama administration’s strategy for reducing methane emissions. EPA estimated that, as originally adopted, the 2016 standards would reduce methane emissions from oil and natural gas operations by 510,000 short tons in 2025. The reductions were to be achieved by requiring operators to, among other things, reduce natural gas venting and flaring and accelerate the detection and repair of natural gas leaks. EPA is now proposing to make various changes to those requirements. Here are five important things to know about the proposed changes:

1. EPA is proposing significant changes to the leak detection requirements in the 2016 standard. Natural gas is comprised primarily of methane, a highly potent greenhouse gas, which is released through intentional venting and accidental leaks. Seeking to minimize releases, in the 2016 standards, EPA required oil and natural gas operators to regularly survey their facilities for leaks. That requirement was strongly opposed by industry, which argued that that the surveys would be costly, and deliver only modest benefits. In response to those concerns, EPA is now proposing to change the survey requirements for certain system components, to allow longer intervals between inspections. The proposed changes are shown in the table below.

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This week, Ama Francis joins the Sabin Center as the 2018-2020 Climate Law Fellow. Ama’s work will focus on developing legal solutions to disaster displacement and climate migration, and on analyzing and supporting the implementation of adaptive measures in small islands and least developed countries.

Ama graduated from Yale Law School in 2018 where she was an active member of Yale’s Environmental Justice Clinic, a student director of Immigration Legal Services, founder of Clarity & Community, and led New Directions in Environmental Law 2018. She has interned at Earthjustice, Islands First, and Dominica’s Ministry of Health and Environment. Ama also represented Dominica at COP22. A native Dominican, Ama is a member of Phi Beta Kappa and graduated from Harvard University in 2011.

You can reach Ama at: arf2167@columbia.edu

In other related news, Romany Webb, our 2016-2018 Climate Law Fellow, will remain on board at the Sabin Center as a Senior Fellow, where she will continue to research legal and policy tools to support climate change mitigation, with a particular focus on the energy sector. Much of Romany’s research explores the regulation of greenhouse gas emissions from fossil fuel energy development, particularly oil and gas production, under U.S. federal and state law. Romany also researches federal and state approaches to supporting clean energy development and carbon capture and sequestration. In addition to her scholarship, Romany maintains the Sabin Center’s Silencing Science Tracker, which records government attempts to restrict or prevent scientific research, education, or discussion.

You can reach Romany at: rwebb@law.columbia.edu