Climate Law Blog

By Susan Biniaz*

     Photo Credit: UNFCCC

In Katowice, Poland, the Parties to the Paris Agreement just adopted the so-called “Paris rulebook,” i.e., the various guidelines and procedures that put meat on the bones of the Agreement’s provisions.  The outcome on “transparency,” which sets forth extensive reporting requirements and review processes, is particularly noteworthy.  It is designed, among other things, to promote clarity on how well Parties are implementing their respective nationally determined contributions, as well as on their greenhouse gas emissions and removals.  One of the most challenging issues facing the transparency negotiators was how to reflect Paris’ mandate to build in “flexibility” for “those developing country Parties that need it in the light of their capacities.”  They managed to achieve a result that carefully balances the need for a “common” system with accommodation for capacity needs.

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By Ama Francis

    Climate Law Fellow Ama Francis at COP24

After delays and closed-door dealings, this Saturday marked the conclusion of Conference of the Parties Twenty-Four (COP24), the annual meeting of the United Nations Framework Convention on Climate Change. COP24 set in motion the momentous Paris Agreement, wherein 196 countries agreed to keep  global average temperature to 2°C above pre-industrial levels while striving to hold temperature increase below 1.5°C. At COP24, countries decided on rules for implementing the 2015 Paris Agreement (the Paris Rulebook), including guidelines for nationally-determined contributions (NDCs), transparency, and finance. Island states also pushed countries to act fast to limit global warming given the Intergovernmental Panel on Climate Change (IPCC) 1.5°C Special Report which cautions that global warming could reach 1.5°C, an existential threshold, as soon as 2030. With the release of the IPCC 1.5°C Report and a Global Carbon Project study that shows that carbon dioxide emissions will rise 2.7% by the end of this year, COP24 was the time to act.

“We need to move,” the Polish COP24 President announced days from closing, as major issues remained unresolved. “Climate change will not wait for us.”

The following are some of the key issues that brought the work of reaching a COP24 agreement down to the wire.

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The Sabin Center for Climate Change Law posted its Summer/Fall 2018 Semi-Annual Report, which includes a summary of the Center’s key activities between June and December 2018.

It is available for download here.

Below are some key highlights from the report:

• In September 2018, the Silence Science Tracker expanded to include anti-science government actions taken at the state and local levels: http://columbiaclimatelaw.com/resources/silencing-science-tracker/state-actions/
• The Sabin Center published books and papers on a variety of topics. These include:

Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal, edited by Michael Gerrard and Tracy Hester

Climate Change, Public Health, and the Law, edited by Michael Burger and Justin Gundlach

Legal Tools for Cities to Cope with Extreme Heat, by Michael B. Gerrard and Edward McTiernan

Holding Fossil Fuel Companies Accountable for their Contribution to Climate Change: Where Does the Law Stand?  by Michael Burger & Jessica Wentz

Geological Storage of CO2 in Sub-Seafloor Basalt: the CarbonSAFE Pre-Feasibility Study Offshore Washington State and British Columbia,by Michael Gerrard, Romany Webb, et al. 

• The Center submitted comments and briefs to numerous agencies, including EPA, FERC and the Bureau of Ocean Energy Management.
• The Center sponsored or co-sponsored a total of 8 events. Many are available on our youtube channel.
• In August, Michael Gerrard was named “Lawyer of the Year” by Best Lawyers for his work in environmental litigation in New York.

To learn more about our work, our Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were interviewed, quoted or mentioned, read the report here.

By Jessica Wentz and Romany Webb

On Thursday, December 6, the Environmental Protection Agency (EPA) published proposed revisions to its New Source Performance Standards (NSPS) for electric utility generating units (2015 NSPS). The proposal affects new, modified, and reconstructed fossil fuel-fired steam generating units, most of which use coal to generate electricity, either by burning it in boilers or using gasification technologies. Those units emit significant carbon dioxide, with EPA finding that “emissions from even a single new coal-fired [unit] may amount to millions of tons each year,” and thus have major climate impacts. Despite this, however, EPA is proposing to weaken the carbon dioxide emission standards imposed on such facilities under the 2015 NSPS. Here are four important things to know about EPA’s proposal:

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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@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 116.

FEATURED CASE

Oregon Federal District Court Stayed Young People’s Climate Case for Government to Pursue Interlocutory Appeal

On November 21, 2018, the federal district court for the District of Oregon certified for interlocutory appeal its decisions denying the governments’ dispositive motions in the case brought by youth plaintiffs claiming that the government’s actions and inaction contributing to a dangerous climate system violated their constitutional rights. The district court issued its order reversing its previous denials of the government’s requests for interlocutory appeal almost two weeks after the Ninth Circuit granted the government’s emergency motion for a stay pending the Ninth Circuit’s consideration of a petition for writ of mandamus filed by the government. The government had also filed motions in the district court for reconsideration of the denial of interlocutory appeal and for a stay. In its order certifying the case for interlocutory appeal, the district court noted that the Ninth Circuit had “invited” the district court to revisit its decision to deny interlocutory review. (The Ninth Circuit stated: “The district court is … requested to promptly resolve petitioners’ motion to reconsider the denial of the request to certify orders for interlocutory review.”) The district court also noted that although it had been “aware of federal defendants’ concerns and their interest in pursuing an interlocutory appeal” over the course of the proceedings, the court’s belief had been “that a bifurcated trial might present the most efficient course for both the parties and the judiciary.” The court said it had believed that reserving interlocutory appeal until after the liability phase would allow appellate courts the benefit of a fully developed record. The court wrote that it “stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial,” but said that it had reviewed the record and taken particular note of the Supreme Court and Ninth Circuit orders and now found “sufficient cause to revisit the question of interlocutory appeal.” The court said it therefore “exercise[d] its discretion” to certify the case for interlocutory appeal and stayed the case pending a decision by the Ninth Circuit. The district court denied the government’s motions for reconsideration and a stay as moot and stayed consideration of other pending motions.

After the district court stayed proceedings, the government told the Supreme Court and the Ninth Circuit (in submissions made in connection with its pending mandamus petitions) that it would file a petition for permission to appeal in the Ninth Circuit by December 3 and that it expected to seek dismissal of the mandamus petitions if the Ninth Circuit permitted appeal. Juliana v. United States, No. 6:15-cv-01517 (D. Or. order certifying for interlocutory appeal Nov. 21, 2018); United States v. U.S. District Court for the District of Oregon, No. 18-73014 (9th Cir. stay order Nov. 8, 2018); In re United States, No. 18-505 (U.S. government’s letter Nov. 23, 2018).

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By Ama Francis

After years of struggling to identify and address the needs of people compelled to move in the context of climate change, the international community is poised to affirmatively recognize the relevance of climate-induced migration and displacement.* Over the next week, world leaders are gathering in Marrakech, Morocco to adopt the Global Compact for Safe, Orderly and Regular Migration (“Global Compact” or “Global Compact for Migration”), an international agreement that garnered support from almost all United Nations Member States. The Global Compact recognizes climate change as a driver of migration, and promotes specific policy instruments for addressing climate-induced migration and displacement. Acknowledging that sudden- and slow-onset disasters can compel migrants to leave their countries of origin, the Global Compact also leaves open the possibility that states owe responsibility to migrants who are forcibly displaced by climate change’s adverse effects.

COP23 Art on Climate Migrants

Next week, the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (ExCom) will also present its report on the issue at Conference of the Parties Twenty-Four (COP24) in Katowice, Poland. The ExCom report integrates recommendations from the Task Force on Displacement (“Task Force”), which was created under the Paris Agreement, and advocates for countries to include climate-induced migration and displacement in their National Adaptation Plans (NAPs). Together, the Global Compact and COP24 present an opportunity to establish international guidelines and leverage the Paris Agreement’s bottom-up approach to address climate-induced migration and displacement at the global and national level. They should offer a clarion call to states to immediately address and plan for climate migrants’ needs.

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By Dena Adler

Youth marchers demand climate action. Photo Credit: Alejandro Alvarez.

It has been a busy few weeks in global climate change litigation. Even as world leaders gather in Poland this week to continue writing the rulebook for the Paris Agreement, countries are already being sued for their failure to deliver climate action. Here is a snapshot of a few key legal developments, with links to the Sabin Center’s International Climate Change Litigation Database which contains case summaries and court documents when available:

Government’s Failure to Meet and Implement Greenhouse Gas Emission Reduction Targets as Violation of Citizens’ Rights

• The Dutch government announced plans to appeal the landmark Urgenda decision, recently upheld by the Hague Court of Appeal, which ruled that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the European Convention on Human Rights. (The Urgenda litigation has inspired a suite of cases around the globe challenging governments’ failure to meet greenhouse gas emission reduction targets or deliver other action on climate change as a violation of plaintiffs’ fundamental rights, including in some cases the right to a healthy environment. Similar cases have been filed in Norway, Pakistan, Colombia, the U.K., Switzerland, and the E.U. The cases that immediately follow fall into this category, as well.)
• ENvironnement JEUnesse v. Canada: ENvironnement JEUnesse, an environmental nonprofit, applied in the Superior Court of Québec to bring a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. ENvironnement JEUnesse reports that it has asked the Court to declare that the Government of Canada has failed in its obligations to protect the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms by failing to set a greenhouse gas reduction target sufficient to avoid dangerous climate change impacts, and by lacking an adequate plan to reach its greenhouse gas emission target.
• Friends of the Earth Germany, Association of Solar Supporters, and Others v. Germany: Friends of the Earth Germany reports that they have lodged a constitutional complaint against the German government, alleging that the government’s failure to meet its own greenhouse gas emission reduction goals and EU 2020 goals violate plaintiffs’ fundamental rights.

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By Michael Burger

Yesterday, the Sabin Center, together with the Columbia Environmental Law Clinic, submitted an amicus brief on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, in New York City’s appeal of a district court decision dismissing its climate change lawsuit against fossil fuel companies. That lawsuit seeks compensation from BP, Exxon and other companies for climate change-related harms and the costs of adaptation.

As noted in the brief, these prominent national local government associations, whose members represent the majority of the nation’s population, have a particular perspective on the question of whether state or federal law applies:

“Local Government Amici have an interest in the Court’s proper recognition of the existence and availability of state common law claims for climate change impacts. The district court’s conversion of Plaintiff’s state common law claims to federal common law claims and the subsequent dismissal of those converted federal common law claims threatens to intrude upon municipal governments’ authority, within our federalist system, to rely on state law to seek redress for harms that, in a contemporary world defined by complex economic and environmental systems that transcend multiple borders, arise in significant part beyond their jurisdictions but nonetheless have highly localized impacts.”

A number of other groups filed briefs, including NRDC on behalf of Environmental Justice groups, Catherine Sharkey of NYU, and a coalition of attorneys general. The fossil fuel companies’ responsive briefs are due next month.

By Philip S. Barnett and Gregory Dotson*

Most people think of Congress as a legislative body.  That’s of course understandable.  But our experience has taught us that oversight can be as important as legislation.  Simply by holding hearings, asking questions, and releasing information, Congress can have a major impact on national policy. In fact, oversight can be particularly influential in periods of divided government.  When the new Congress convenes in January, oversight may be one of the best ways for a more progressive House of Representatives to advance its agenda – including advancing environmental and public health protections and taking action on climate change.

The Roles of Congressional Oversight

Oversight can hold people accountable for misconduct.  Even from the minority, Democratic leaders like Reps. Elijah Cummings and Frank Pallone and Senators Tom Carper, Sheldon Whitehouse, and Tom Udall were able to expose misconduct that led to the recent resignation of Scott Pruitt from the Environmental Protection Agency.  Now both Mr. Cummings and Mr. Pallone are likely to chair major House committees, the House Oversight and House Energy and Commerce Committees, respectively, that will give them new powers to probe evidence of self-enrichment and malfeasance.

July 29, 2007 — FEMA Administrator R. David Paulison and others testify on Hurricane Preparedness before the Oversight and Government Reform committee.

Oversight can change executive branch policy.  It was an investigation by the House Oversight Committee in 2007 that exposed the dangers of formaldehyde contamination in FEMA trailers and forced the agency to provide safer housing for the victims of Hurricane Katrina.  The flawed response to Hurricane Maria in Puerto Rico needs similar scrutiny.

Oversight can lead to legislation.  The comprehensive FDA food safety reforms passed by Congress in 2010 were motivated by investigations in the Energy and Commerce Committee into salmonella outbreaks in peanut butter and eggs that revealed grossly contaminated conditions, criminally negligent company conduct, and lax federal and state inspections.  We might all be surprised at what President Trump might be willing to sign into law when the public is exposed to compelling facts.

And oversight can galvanize public opinion and shape policy at all levels of government, as Rep. Henry Waxman’s tobacco investigation in the 1990s illustrates.

Yet as powerful as congressional oversight can be, its effectiveness can be blunted if committees abuse their powers and elevate gaining partisan advantage over seeking the truth.  This happened in the 1990s when Republican Oversight Chairman Dan Burton issued over 1,000 unilateral subpoenas in pursuing unsubstantiated allegations against President Clinton.  It happened again when one of his successors, Republican Oversight Chairman Darryl Issa, issued over 100 unilateral subpoenas in a discredited effort to prove the Obama Administration was “the most corrupt government in history.”  And it happened again this year when House Republicans issued still more subpoenas to impugn the integrity of the Justice Department, the FBI, and the Mueller investigation.

The key to effective investigation is a commitment to facts.   The newly elected majority in the House is already signaling a promising approach:  they will not pursue investigations of the Trump Administration just to score political points, but will not shy away from investigating the President or his appointees where the evidence warrants it.  If the new Democratic chairs pursue fact-based investigations, they will be serving the public interest and fulfilling the founders’ vision of Congress as a check and balance on executive branch abuse.

Oversight and Climate Change in the 116th Congress

In the case of climate change, there are at least three areas where House Democrats could make a major contribution.  First is educating the public about the dangers of climate change.  For the last eight years, hearings on climate in Congress have given platforms to science deniers who mislead the public.  The new Congress can stop this disinformation campaign and listen to real scientists and the many Americans whose lives have been turned upside down by floods, droughts, wildfires, and hurricanes.   We would recommend the new Congress consider inviting scientists doing groundbreaking research to unveil their findings at public hearings, thereby using the congressional megaphone to amplify public appreciation of profound risks we are facing.

Second, congressional oversight can reveal the influence of special interests at regulatory agencies like EPA and the Department of the Interior.  It is highly unusual for agencies to seek to reverse environmental rules that are projected to save thousands of lives and produce health and economic benefits far in excess of their costs.  Committees could examine internal agency records and interview agency officials to understand what is motivating these rollbacks.

A good example could be the Administration’s effort to substantially weaken EPA’s tailpipe standards for greenhouse gases.  The proposed rule promises to increase pollution while hurting consumers and domestic manufacturing.  In July, the New York Times reported that even the Acting EPA Administrator was concerned about moving forward with the rule because the agency could suffer “an embarrassing court loss.”  Examining such a seemingly unjustifiable decision would make for textbook oversight.

Third, Congress can investigate what energy companies knew about the dangers of carbon dioxide emissions, just as two decades ago Chairman Waxman investigated the tobacco companies’ knowledge of the addictiveness of nicotine.  An ample predicate for launching an investigation into what the major oil companies, like ExxonMobil, knew has been laid by the work of investigative journalists and state attorneys general.  Such an investigation could also include companies and organizations that continue to spread climate disinformation to this day.

The power to investigate is one of Congress’ essential powers.  As the Supreme Court recognized in a 1975 case, Eastland v. United States Serviceman’s Fund, “The scope of [Congress’] power of inquiry…is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”  The nation — and the world — should hope that one of the oversight priorities of the newly empowered House Democrats will be the profound threat of global climate change.

*Philip S. Barnett is a co-founder of the nonprofit Co-Equal.  Gregory Dotson is an Assistant Professor of Law at the University of Oregon School of Law. Barnett was the Staff Director of the House Oversight Committee in 2007, the last time the Democrats took control of the House of Representatives under a Republican President.  Dotson was the Chief Environmental Counsel of the Committee.   

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 # 115.

FEATURED CASE

Supreme Court Denied Stay of Young People’s Constitutional Climate Case, Saying Federal Government Could Ask Ninth Circuit to Stop Case

On November 2, 2018, the U.S. Supreme Court issued an order denying the federal government’s application for a stay of district court proceedings in the constitutional climate case brought by young plaintiffs in the District of Oregon. The Court also vacated an administrative stay granted by Chief Justice Roberts on October 19. The federal government had sought a stay pending the Court’s disposition of a petition for a writ of mandamus ordering the district court to dismiss the suit. The trial had been scheduled to start on October 29. The Court said the petition for a writ of mandamus did not have a “fair prospect” of success because the government could still seek mandamus relief in the Ninth Circuit. The Court noted that while the Ninth Circuit had denied two earlier requests for mandamus relief in this case, “the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court indicated that those reasons were, “to a large extent, no longer pertinent” since a 50-day trial was scheduled to begin on October 29, 2018 and had been held in abeyance only because of Chief Justice Roberts’s administrative stay. Justices Gorsuch and Thomas would have granted the stay.

Earlier in October, the district court largely denied the federal government’s dispositive motions in the case. The district court granted in part and denied in part motions for summary judgment and judgment on the pleadings. The court declined to rule for the defendants at this stage on the primary claims advanced by the plaintiffs: a “state-created danger” due process claim and a public trust claim. The court dismissed President Trump from the action (but without prejudice) and also granted summary judgment to the defendants on the plaintiffs’ Ninth Amendment claim and on an equal protection claim based on “posterity” being a suspect classification. The district court said, however, that an equal protection claim based on alleged interference with a right to a climate system capable of sustaining human life would be aided by further development of a factual record. The district court rejected arguments that the case was required to be heard under the Administrative Procedure Act; that separation of powers principles foreclosed the plaintiffs’ claims; that plaintiffs lacked standing; and that there is no right to a climate system capable of sustaining human life. The district court declined to certify its decisions for interlocutory appeal. On the same day, the district court denied the government’s motion for a stay pending Supreme Court review.

On October 12, a few days prior to the district court’s ruling on the dispositive motions and denial of the government’s motion for a stay, the government filed a third petition for writ of mandamus in the Ninth Circuit Court of Appeals, also seeking a stay of district court proceedings pending Supreme Court review. On November 2, 2018, just hours before the Supreme Court denied the government’s stay application, the Ninth Circuit Court of Appeals issued an order denying the federal government’s request. The Ninth Circuit said that Chief Justice Roberts’s granting of a stay of the litigation on October 19 rendered the government’s “non-substantive” motion moot.

Correction: The October monthly update indicated incorrectly that the trial in Juliana v. United States was expected to last two weeks. Lawyers for the parties estimated that the trial would last 50 days or 8 to 12 weeks.

In re United States, No. 18-505/18A-410 (U.S. Nov. 2, 2018); United States v. U.S. District Court for District of Oregon, No. 18-72776 (9th Cir. Nov. 2, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. Oct. 15, 2018). Link to case page is available here.
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