Climate Law Blog

By Susan Biniaz*

Hundreds of pages have been written about what a Biden Administration should do to reduce U.S. greenhouse gas emissions, create green jobs, and effect the U.S. transition to a carbon-neutral economy. But when it comes to what President Biden should do internationally, there’s often just one sentence – rejoin the Paris Agreement.  Rejoining Paris is absolutely essential.  But President Biden also needs to grab Paris and run with it.

The Paris Agreement is an excellent foundation for international action on climate. Not only was it a feat of multilateral diplomacy back in 2015, but it contains all the ingredients we need now:

• It’s the first and only global agreement to include the pursuit of limiting global temperature rise to 1.5 degrees C.
• It requires an emissions-related contribution from each country, as well as robust reporting and review of each country’s emissions and implementation.
• It calls for regular aggregate review of global progress and updating of national contributions.
• It aims at increasing resilience to climate impacts, as well as aligning financial flows with the Paris temperature and resilience objectives.
• It enjoys worldwide participation – at least until November 4^th, when U.S. withdrawal takes effect.

Importantly, the Agreement’s design, which provides for each country to “nationally determine” its emissions contribution, allows the world to avoid wasting precious time constantly re-negotiating and focus instead on implementing – and raising – climate ambition.  Paris also engages a wide variety of actors taking climate action, i.e., not just national governments, but companies, financial institutions, cities, states, etc.   This is highly unusual for a “traditional” international agreement – and highly necessary for this issue, where such actors produce both emissions and solutions.

There is no question that the world has not done enough. There has been insufficient political will.  And it hasn’t helped that Paris suffered two gut punches since entering in force: Trump’s walk-away and, more recently, COVID-19.

But a Biden Administration can help to turn this around:

First, the U.S. needs to rejoin the Paris Agreement. On Day 1.  There is no domestic impediment to doing this, and it will send a signal right away that combating climate change is at the top of the U.S. foreign policy agenda.  It is also step one in undoing the perverse rejection by the Trump Administration of an agreement that is 100% in the U.S. national interest.  Once the U.S. officially becomes a party again (i.e., thirty days after rejoining), it will have an obligation to submit an emissions target or, in Paris parlance, a “nationally determined contribution” or “NDC.”  It can meet that obligation in several ways, including through a placeholder target pending development of its 2030 target – which is likely to take several months.[1]  It should also re-submit a U.S. mid-century decarbonization strategy, hand in delinquent reports, and begin again making U.S. contributions to the Global Climate Fund.

Second, the U.S. should early on articulate a long-term global vision regarding decarbonization.  It could take a Paris-based aim (e.g., net zero emissions) and accord it a time frame (e.g., no later than 2050).  It might also pick a particular sector and set a goal (e.g., with respect to electric vehicles).  In selecting its global priorities, the Administration might take into account which ones would deliver the most emission reductions, which ones are the most irreversible, which ones are most likely to be achieved, and/or which ones the U.S. has the most tools to advance.  By virtue of both the sheer size of the U.S. economy and the capacity of the United States to lead a global effort, the U.S. vision will influence the rest of the world’s ambition.

Third, it will be important for the U.S. to use multiple fora to advance the three Paris objectives (limiting global temperature rise, enhancing climate resilience, and “greening” financial flows). This means not only restoring key bilateral climate relationships but reviving the U.S.-led Major Economies Forum, which was a highly effective grouping of key countries.  It also means insisting that climate concerns be addressed by a wide range of international bodies (including not just environmental fora, such as those related to biodiversity and the ocean, but economic institutions, including those relating to trade and investment); spearheading multi-stakeholder coalitions; doubling down on the climate imperative in the G7 and G20 (fora in which the Trump Administration has been downright hostile to the climate issue); restoring climate to a central place in the Arctic Council (where the Trump Administration walked away from the collective target on black carbon); seriously re-engaging in efforts at ICAO and IMO to reduce emissions from aviation and shipping, respectively; and integrating climate issues into all aspects of U.S. diplomatic engagement.  A combination of fora will likely be needed to get at carbon-intensive overseas financing, including China’s Belt and Road Initiative.

Fourth, the Administration should seek Senate approval of the Kigali Amendment to the Montreal Protocol, which regulates hydrofluorocarbons.  HFCs were relied upon as a substitute for harmful ozone-depleting substances but turned out to be powerful greenhouse gases.  International implementation of this amendment has the potential to take a significant chunk out of expected warming.

Fifth, the Administration should take institutional steps to reflect the priority it attaches to the climate issue.  This could include, e.g., organizing the White House and relevant agencies in ways that embed climate considerations in U.S. foreign policy and national security, the appointment of climate experts in non-traditional places, and re-instatement of the State Department’s Special Envoy on Climate. In addition, the President could issue an Executive Order laying out key elements of climate-related process and/or policy.  Such steps, while notionally internal, would nevertheless resonate internationally both substantively and symbolically.

Last, but far from least, the U.S. should employ all the tools in its diplomatic toolbox to promote implementation — and enhancement — of the emissions commitments under the Paris Agreement.  The Agreement is a vessel, into which each country pours its nationally determined contribution. Together, these NDCs can add up to weak tea or strong wine.  So it’s imperative that the contributions progressively increase, in scale and speed, to meet the climate challenge.  This year had been the agreed point at which Parties to Paris were expected to update, or at least seriously consider updating, their NDCs.  However, the pandemic has delayed many countries’ ability to focus on their NDCs. At the moment, much attention is being paid to ensuring that COVID-19 recovery plans and stimulus packages are climate-friendly; however, 2021 will be a critical year for an all-out focus on NDC enhancement.

Our 2021 diplomatic tools must include not only American global leadership and assistance, but seriously addressing climate change at home as well.  And here’s where the rubber of U.S. international climate diplomacy meets the road of U.S. domestic action.  While scientists were busy telling us that the climate risks were worse than we thought, the Trump Administration was busy trampling all over U.S. climate laws and regulations, setting the U.S. back both at home and internationally.  The new Administration needs to build back the legal and policy foundation for U.S. climate action not only to significantly reduce our own emissions and create a green domestic economy but, in buttressing a strong U.S. NDC for 2030, to bolster the U.S. ability to call upon other countries to do likewise.  Ideally, Congress would hand the Administration a sweeping climate law early in the year, maximizing the effectiveness of U.S. diplomacy; in any event, the Administration and Congress should quickly turn to the business of climate legislation and show the world we put our money where our mouth is.

There will obviously be challenges.  The world is not currently on track to avoid the worst climate consequences.  The U.S. has lost ground, with its domestic and international climate retreats.  And diplomatic relations are not where they were four years ago.  However, time is short, and the issue is too important.  The next Administration must grab Paris and run with it.

[1]For a further discussion of U.S. options regarding its next NDC, see http://blogs.law.columbia.edu/climatechange/2020/03/11/returning-to-paris-the-next-u-s-ndc/

*Susan Biniaz is a former Deputy Legal Adviser at the U.S. Department of State. She was the lead climate lawyer, and a negotiator, from 1989 until early 2017.  Since leaving the Government, she has been teaching at Yale Law School and the Yale Jackson Institute for Global Affairs. She has also been a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.

On Monday, July 27, the Sabin Center filed comments with the Bureau of Ocean Energy Management (BOEM) in support of the proposed Vineyard Wind energy facility offshore Massachusetts on behalf of the group Win with South Fork Wind (“Win with Wind”). Win with Wind is a client of the Renewable Energy Legal Defense Initiative, a joint effort by the Sabin Center and the law firm of Arnold & Porter to provide pro bono legal counsel to groups and individuals who support renewable energy projects in their communities. Win with Wind members are residents of the South Fork of Long Island who are currently working to advocate for the proposed South Fork Wind Farm, which they see as an opportunity to place their community at the forefront of clean energy leadership.

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The Sabin Center for Climate Change Law is proud to announce that Susan Biniaz, Brenda Mallory and Jessica Wentz are joining the center as non-resident senior fellows.

Susan Biniaz was a Deputy Legal Adviser at the U.S. Department of State. From 1989 to early 2017, she was the lead climate lawyer and a climate negotiator.  She joined the State Department in 1984 after graduating from Columbia Law School and clerking on the 9th Circuit.  At State, she negotiated many key international environmental agreements. She teaches international environmental law as a member of Columbia’s adjunct faculty. She has also been on the adjunct faculty at the University of Chicago Law School and Yale Law School and was a Distinguished Visiting Fellow at the Energy Policy Institute of Chicago. She is currently a Senior Fellow and Lecturer at the Yale Jackson Institute for Global Affairs, a Senior Fellow at the UN Foundation, a Senior Advisor at the Center for Climate and Energy Solutions, and a Distinguished Senior Fellow at Climate Advisers. As a non-resident senior fellow at the Sabin Center, Sue will continue to develop and publish essential thought leadership on international climate law and policy.

Brenda Mallory is the executive director of and Senior Counsel for the Resource Legacy Fund’s Conservation Litigation
Project, which was created to protect environmental and conservation values on public lands. Largely through collaboration with academics, Brenda promotes the development of legal scholarship and a thoughtful public narrative around emerging public lands issues. During the Obama Administration, Brenda served as the General Counsel for the White House Council on Environmental Quality, supporting the Administration in advancing the President’s environmental, energy, and natural resources agenda. Prior to joining CEQ, among other roles, Brenda served as the Acting General Counsel and the Principal Deputy General Counsel at the U.S. Environmental Protection Agency. Before EPA, she was a Director at the environmental law firm Beveridge and Diamond where she chaired the Natural Resources Practice Group. She currently is a Fellow in the American College of Environmental Lawyers, a member of the Environmental Defense Fund’s Litigation Advocacy Committee, Environmental Policy Innovation Center’s Advisory Committee, on the Advisory Council for Women in Conservation Leadership, and on the Board of Directors of the Environmental Law Institute and the Center for Climate and Energy Solutions. Brenda is a graduate of Columbia Law School (Harlan Fiske Stone Scholar)and Yale College. At the Center, Brenda will explore issues at the intersection of climate change and natural resources management and protection.

Jessica Wentz is a former climate law fellow at the Sabin Center, and a leading expert on climate change and environmental impact assessment, as well as the relationship between climate science and the law. Her work has spanned a variety of topics related to climate change mitigation and adaptation, sustainable development, and environmental justice. She has also written on the nexus between climate change and human rights law. Jessica previously worked as a Visiting Associate Professor and Environmental Program Fellow at the George Washington University Law School. She is a 2012 graduate of Columbia Law School, where she was awarded the Alfred S. Forsyth Prize for “dedication to the advancement of environmental law.” She also works as the contracts officer and business operations manager at Remote Sensing Systems, a climate science research firm in California. In her work with the Center, Jessica will continue to collaborate on investigations into the dynamics between attribution science and litigation.

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 # 135.

FEATURED CASE

Hawaiʻi Supreme Court Said Public Utilities Commission Improperly Limited Consideration of LNG Projects’ Greenhouse Gas Impacts

The Hawaiʻi Supreme Court vacated the Public Utilities Commission’s (PUC’s) approval of a rate increase that allowed a utility to pass the costs of two liquid natural gas (LNG) project on to its customers. The court determined that two nonprofit groups had standing to appeal the PUC’s determination because they had demonstrated they were “persons aggrieved” who had participated in the case. The court cited the groups’ allegations that their members were “deeply concerned” about the environmental and financial impacts of climate change, as well as climate change’s threats to native Hawaiian traditions and culture. The court further held that the PUC did not fulfill its statutory obligations under the State utilities law, which the court concluded did not limit the PUC’s consideration of greenhouse gas (GHG) emissions to only those occurring within the state. The PUC therefore should have considered imported LNG’s impacts on out-of-state greenhouse gas emissions. The court also said the PUC failed to comply with statutory requirements when it “merely restat[ed], without substantiating, [the utility’s] representation that its LNG projects would decrease GHG emissions.” In addition, the court held that the PUC’s limitations on the participation of the nonprofit groups violated their due process rights because they possessed a “protected property interest in a clean and healthful environment” under the Hawaiʻi State Constitution, and the PUC had “limited its consideration of GHG emissions to those within the boundaries of the state, truncating Appellants’ property interest.” On the issues of whether the PUC had failed to fulfill constitutional obligations to protect one group’s native Hawaiian customary and traditional rights or to abide by the PUC’s affirmative obligations as a public trustee of the State’s natural resources, the court found that the record was not sufficiently developed to address these issues because the PUC “improperly curtailed” the nonprofit groups’ substantive participation. The court remanded to the PUC for further proceedings. In re The Gas Co. dba Hawaii Gas, No. SCOT-19-0000044 (Haw. June 9, 2020).

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Today, the Sabin Center filed an amicus brief on behalf of local government associations in support of state, city, environmental, and industry petitioners in Union of Concerned Scientists v. National Highway Traffic Safety Administration. The lawsuit challenges Part One of the Safer Affordable Fuel Efficient Vehicles (SAFE) Rule, the Trump Administration’s effort to roll back greenhouse gas and fuel economy standards for cars.

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By Jennifer Danis

On Tuesday, June 30, 2020, the D. C. Circuit Court of Appeals, ruling en banc, held that the Federal Energy Regulatory Commission’s use of “tolling orders” could not block judicial review of its gas infrastructure certifications. The Commission created “tolling orders” to grant itself additional time to answer landowners’ pleas for rehearing.  But these orders also locked the courthouse doors for landowners seeking judicial review of Commission orders. Notably, after tolling time to respond to landowners’ pleas for rehearing, the Commission routinely denied them. The D.C. Circuit Allegheny Defense decision is a first important step towards reigning in the inimical practices the Federal Energy Regulatory Commission deploys when certifying gas infrastructure.

FERC first started using tolling orders as a way to circumvent the Natural Gas Act’s 30-day deadline to act on a party’s request to rehear its decisions. The Commission would “grant” the rehearing request for the limited purpose of avoiding the statutory deadline, but take no further action to actually consider the challenges raised in that request. As the Allegheny Defense court said, a tolling order is “not a grant of rehearing of the challenged order; it is kicking the can down the road.” Courts initially tolerated the Commission’s use of tolling orders in the context of rate cases, where delayed judicial access doesn’t result in land condemnation and environmental destruction.  Over time, the Commission began to use them for pipeline and other natural gas infrastructure certifications, eventually coming to rely on them for 99% of these approvals, as the court noted today.Tolling orders have allowed the Commission to ignore landowners’ rehearing requests for more than ten times the statutorily allowed period, even as the Commission’s certifications remained in place.

During this legal purgatory, landowners’ property has been condemned and their land torn up for pipelines, because gas infrastructure certifications are treated by courts and the Commission as final for condemnation and construction purposes.  But when landowners sought judicial review of whether the Commission’s fossil fuel certifications were rightly issued, both the Commission and the courts (including the D.C. Circuit) told landowners that the orders were not final for purposes of judicial review. So, the certification was final enough to condemn private property and build a pipeline, but not final enough to challenge in court. The D.C. Circuit recognized the absurdity of this situation: “Tolling orders, in other words, render Commission decisions akin to Schrödinger’s cat: both final and not final at the same time.”

That ended yesterday. In a strongly worded opinion, the court held that “the Commission has no authority to erase and replace the statutorily prescribed jurisdictional consequences of its inaction.”And the court made clear it will open its doors to landowners seeking judicial review at the end of the statutory 30-day period,overruling prior law that had condoned the Commission’s use of tolling orders.  Importantly, the court found that it owed no Chevron deference to the Commission’s interpretation of the Gas Act’s judicial review provision.

Landowners have farther to go to remedy injustice from pipeline certifications and resulting condemnation processes.  Judge Griffith, joined by Judges Katsas and Rao, wrote separately to give additional guidance on “possibilities for curtailing the remaining factors” driving “unfairness” to landowners.  Their concurrence points to the limitations of the court’s ruling, because it does not preclude district courts, where pipeline condemnation actions take place, from allowing them to proceed pending grants of rehearing. But together with the majority opinion, the concurrence lays out a roadmap to district courts effectuating such condemnations for restoring the balance of justice.

The D.C. Circuit’s opinion also bodes well for percolating challenges to another novel Commission practice: amending gas pipeline certifications while those same certifications are being challenged in court.  In Allegheny Defense, the D.C. Circuit made abundantly clear that the Gas Act’s rehearing and review provisions, 15 U.S.C. § 717r(a) and 15 U.S.C. § 717r(b), trigger exclusive jurisdiction when the agency files its record of review of the pipeline application.  The court delineated the bounds of Commission authority, drawing a clear line at the filing of the underlying administrative record with the reviewing court, “which is typically forty days after the petition is served on the Commission.”

So far, the Commission has ignored this statutory limitation, acting to modify its orders while they are being litigated in court, after the administrative record has been filed.  New Jersey Conservation Foundation and The Watershed Institute, among others, have flagged that practice as deeply flawed in pending pipeline projects.  For example, earlier this year, the Commission opened a docket to consider an “amendment” to its 2018 PennEast Pipeline Certificate Order, PennEast Pipeline Co., LLC, 162 FERC ¶ 61,053 (2018).[1]But this order is being litigated in the D.C. Circuit Court of Appeals, and the Commission filed the administrative record with the court on October 24, 2018. SeeUSCA Document #1756805, filed in D.C. Circuit Case #18-1128.  This practice doesn’t comport with the reasoning in the court’s Allegheny Defense ruling.   The decision took an important step towards ensuring the Commission hews closer to the Gas Act’s requirements.

[1]The author represents New Jersey Conservation Foundation and The Watershed Institute in challenges to the PennEast Pipeline projects.

The Sabin Center for Climate Change Law posted its Winter/Spring 2020 Semi-Annual Report, which includes a summary of the Center’s key activities between December 2019 and May 2020.

It is available for download here.

Below are some key highlights from the report:

• In light of the novel coronavirus pandemic, the Sabin Center has partly shifted its focus to how COVID-19 is affecting climate change and policies to deal with it.
• The Sabin Center launched a new Model Laws for Deep Decarbonization in the United States website, providing legal tools needed to transition away from fossil fuels.
• The Renewable Energy Legal Defense Initiative continues to represent community groups and local residents who support renewable energy development in their communities including New York’s first offshore wind farm, a New York-based solar facility and an onshore wind farm in Ohio.
• The Cities Climate Law Initiative’s senior fellow Amy Turner worked with city officials across the U.S., as well as with staff of the Rocky Mountain Institute and the World Resources Institute, on various issues including virtual power purchase agreements and local natural gas bans.
• The Center submitted comments and briefs to numerous agencies, including the EPA and DOE.
• On April 21, the D.C. Circuit of Appeals decided that the EPA acted illegally when it banned scientists with agency grants from serving on its scientific advisory boards. The Environmental Law Clinic and the Sabin Center executive director Michael Burger represented two scientists and partnered with attorneys at Earthjustice to bring the case.
• The Center sponsored/co-sponsored and participated in numerous events including several “Earth Day 50” virtual events.
• Faculty director Michael Gerrard and the Sabin Center were honored with awards from the New York State Bar Association Environment and Energy.
• Executive director Michael Burger received an Amicus Service Award from the International Municipal Lawyers Association.
• The Center published books and papers on a variety of topics. These include:

• • The Role of Lawyers in Decarbonizing Society, by Michael Gerrard, Stanford Law Review Online, April 2020.
  • The Law and Science of Climate Change Attribution, by Michael Burger, Jessica Wentz, and Radley Horton, 45 Colum J. Envtl. L57, 2020.
  • Legal Tools for Achieving Low Traffic Zones, by Amy Turner, Environmental Law Reporter, April 2020.
  • “Corporate Social Responsibility and Climate Change,” by Michael Burger and Jessica Wentz, Corporate Social Responsibility – Sustainable Business: Environmental, Social and Governance Frameworks for the 21^stCentury, 3^rdEd. (Roger Martella and Rae Lindsay, eds., Wolters Kluwer /International Bar Association ), 2020.
  • Direct Air Capture: An Emerging Necessity to Fight Climate Change, by Michael B. Gerrard, ABA Section of Environment, Energy, and Resources, March/April 2020.

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 Susan Biniaz*

International environmental law covers a wide range of subjects, is extremely detailed, and evolves very rapidly.  No wonder it is challenging for practitioners to keep up with developments.  An expert in marine pollution regimes may be unaware of the latest initiatives on forest conservation.  Given how hyper-specialized the climate world has become, an expert on mitigation may be only mildly aware of recent advances in adaptation.  And neither may be in a position to keep up with innovations in international law more broadly.

Deep knowledge has its advantages, but also some drawbacks.  When we are faced with the need to address a new or emerging issue, our set of tools may be limited by our narrow specialties; we reach for solutions that are familiar but not necessarily the most effective. Moreover, when we do come up with an interesting solution to address a specific problem, it tends to remain hidden from those dealing with other problems – even if it might be useful to them.

Thinking about this situation, I have been wondering why we don’t flip things around. Rather than start with a particular environmental challenge (say, what kind of international instrument should be developed to tackle marine plastics), we could start with solutions that have been used to address other international problems and ask whether there are environmental problems such solutions might be effective in addressing.

“Idea arbitrage” is not an original thought.  Rather, I came across it several years ago in Why Not?, a provocative book by Yale professors Barry Nalebuff and Ian Ayres. There the topic was economics, and the authors were encouraging entrepreneurs to work backwards, i.e., to look at an existing solution to one problem and see if it might apply to a different problem.  (I think about the concept every time I go through a tollbooth, one of the book’s examples of a solution — self-regulation — that might apply elsewhere.)

Application of “idea arbitrage” to international environmental problems could be a useful project, one that practitioners and other experts might combine forces on, perhaps in conjunction with the upcoming 50^thanniversary of the original Stockholm Conference.

During my time as a State Department lawyer, I had the opportunity to assist policymakers in developing approaches to a wide range of international issues. To get the ball rolling, this paper draws on two such approaches, one an international agreement from the environmental area (the Paris Agreement on climate change), the other an international arrangement from a completely different field (the Contact Group on Somali Piracy).  The hope is that they might offer transferable problem-solving techniques for those grappling with various environmental challenges.

Read the full working paper here.

*Susan Biniaz is a former Deputy Legal Adviser at the U.S. Department of State. She was the lead climate lawyer, and a negotiator, from 1989 until early 2017.  Since leaving the Government, she has been teaching at Yale Law School and the Yale Jackson Institute for Global Affairs. She has also been a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.

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 # 134.

FEATURED CASES

Ninth Circuit Ruled for California Cities and Counties on Questions of Whether Climate Lawsuits Against Energy Companies Belonged in State or Federal Court

In two opinions, the Ninth Circuit Court of Appeals ruled against energy companies that had removed to federal court cases brought by California local governments seeking compensation for climate change impacts. In an appeal by Oakland and San Francisco of a district court’s denial of remand in, and dismissal of, their suits, the Ninth Circuit reversed the federal district court’s determination that federal-question jurisdiction provided a basis for removal. The Ninth Circuit remanded for the district court to determine whether there was an alternative basis for jurisdiction. In the energy companies’ appeal of a district court’s remand order in cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit concluded first that its jurisdiction to review was limited to whether the cases were properly removed under the federal-officer removal statute and then that the companies had not proved that federal-officer removal could be invoked.

In the Oakland and San Francisco decision, the Ninth Circuit held that the cities’ state-law claim for public nuisance did not arise under federal law because no exception to the “well-pleaded complaint rule” applied. First, the Ninth Circuit found that the cities’ nuisance claim did not raise “a substantial federal question.” The court noted that the companies had contended that the nuisance claim implicated “federal interests” such as energy policy, national security, and foreign policy, but the court said this was not sufficient to establish federal-question jurisdiction even though the question of whether the companies should be held liable and be compelled to abate harms was “no doubt an important policy question.” Second, the Ninth Circuit rejected the companies’ argument that the Clean Air Act completely preempted the cities’ public nuisance claim. The Ninth Circuit also rejected the companies’ argument that the cities waived their arguments in favor of remand by amending their complaint to add a federal common law claim; the Ninth Circuit said the cities’ reservation of rights was sufficient. The Ninth Circuit also rejected the companies’ contention that improper removal could be excused based on “considerations of finality, efficiency, and economy.” The Ninth Circuit concluded that dismissal for failure to state a claim at the pleading stage did not warrant departure from the general rule that a case must be fit for federal adjudication at the time of removal. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir. May 26, 2020).

In the decision in the cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit rejected the energy companies’ arguments in favor of plenary review of the remand order. First, the Ninth Circuit was not persuaded by the companies’ contention that the district court had remanded based on a merits determination, not based on subject matter jurisdiction. Second, the Ninth Circuit found that under its existing precedent, it had jurisdiction to review the issue of federal-officer removal but not the portions of the remand order that considered seven other bases for removal. The Ninth Circuit concluded that Congress’s enactment of the Removal Clarification Act of 2011 did not abrogate this precedent. The Ninth Circuit also rejected the companies’ argument that it was not bound by its own precedent because the decision was not well reasoned; the court said it remained bound by the precedent “until abrogated by an intervening higher authority.” The Ninth Circuit then conducted a de novo review of the issue of subject matter jurisdiction under the federal-officer removal statute. The appellate court found that the energy companies had not proven by a preponderance of the evidence that they were “acting under” a federal officer in any of the three agreements with the government on which the companies relied for federal-officer removal jurisdiction. The Ninth Circuit therefore affirmed the district court’s determination that there was no federal-officer removal jurisdiction and dismissed the remainder of the appeal for lack of jurisdiction. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. May 26, 2020).

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This week, Jennifer Danis joins the Sabin Center as senior fellow, bringing her significant experience in environmental and energy law to the team. She will be exploring regional opportunities to contribute to the forward momentum that aggressive climate laws and goals have created, including reducing reliance on fossil fuel use. As states have begun to enshrine robust clean energy goals within newly enacted or amended state laws, the thornier questions of how to achieve those emissions reductions targets remain unanswered. Ms. Danis will be focusing on creating sustainable legal frameworks to support those state goals. She continues to be Of Counsel to Morningside Heights Legal Services.

Previously, Ms. Danis worked as a staff attorney and clinical instructor at Columbia Law School’s Environmental Law Clinic. In that capacity, she advocated on behalf of the Clinic’s clients for sustainable energy choices in the region, developing and implementing novel legal theories to prevent the proliferation of gas pipeline infrastructure. She also has significant experience working with a broad range of national energy advocates and experts to help document skewed natural gas market economics, the economics of deep decarbonization, and ecological, health and safety impacts from fossil fuel infrastructure. Ms. Danis has testified on these issues before congressional committees, and helped nonprofit clients advance legislation to directly address these conflicts. She also served as the Senior Staff Attorney for Eastern Environmental Law Center’s Energy Infrastructure program. Prior to her energy work at EELC, she was of counsel to Bradley M. Campbell, LLC, where she used legal and scientific tools to address toxic contaminants under the Resource Conservation and Recovery Act. Working as an attorney at the Natural Resources Defense Council, Ms. Danis researched complex litigation strategies to address legacy pollution of regional waterways. She successfully advocated for the preservation of 600 wetlands acres in the Hackensack Meadowlands. Her interest in environmental law started while clerking in the United States Department of Justice, Environment & Natural Resources Division, in the Indian Resources Section, working on conflicts related to water compacts, as well as issues related to the Cherokee constitutional crisis. She also serves on the Conservation and Research Committee of the New Jersey Audubon Society. Ms. Danis began her law career as a litigator at Kirkland & Ellis in New York, where she worked on various commercial litigation matters, including intellectual property, securities fraud and contractual disputes. She is an alumna of University of Pennsylvania and Boston University.