Climate Law Blog

By Michael Burger

Climate change nuisance litigation is entering a new and dynamic phase. Tomorrow, Thursday, May 24, Judge William H. Alsup in the federal district court in San Francisco will hear oral argument on motions to dismiss filed in City of Oakland v. BP P.L.C., a consolidated case in which Oakland and San Francisco claim that five fossil fuel companies’ production and promotion of fossil fuels constitutes a public nuisance under federal and California common law. Three weeks later, on June 13, Judge John F. Keenan of the Southern District of New York will hear oral argument on the motions to dismiss filed in City of New York v. BP P.L.C., a case in which New York City alleges these same companies’ same activities constitute a public nuisance and trespass under New York State law. The decisions on these motions could influence pending and future litigation in the same vein – lawsuits seeking damages, compensation or abatement funds to alleviate the costs borne by local governments to adapt to climate change impacts.

At the moment, it’s pretty messy out there. There are eight other climate change tort cases pending: six alleging nuisance and a variety of other state common law violations in California courts, one claiming state public nuisance along with other state common law and statutory violations in Colorado, and one claiming state public nuisance and trespass in Washington. One set of California cases – filed by San Mateo County, Marin County and Imperial City – was removed by defendants to federal court, then remanded to state court, based on Judge Vince C. Chhabria’s conclusion that federal common law has been displaced and that state law should govern the cases – a conclusion opposite to that previously reached by Judge Alsup in a decision preserving the removal of the Oakland/San Francisco case. Judge Chhabria then certified his decision for interlocutory appeal to the Ninth Circuit, and in March defendants filed their petition. Late yesterday, May 22, the Ninth Circuit panel denied the petition for interlocutory appeal. A separate appeal, challenging Judge Chhabria’s decision that the federal officer statute does not require removal, is pending, with briefing scheduled to take place over the summer. Meanwhile, a second set of cases – filed by Santa Cruz County, the City of Santa Cruz, and the City of Richmond – have also been removed to federal court and assigned to Judge Chhabria. A motion for remand has been briefed. The cases filed by the City and County of Boulder, Colorado, and by King County, Washington are still young, and defendants have not yet responded to the complaints. Read more »

By Dena Adler

Meeting in the Chamber Hall at the World Conference Center Bonn.

Thousands of country delegates, NGO representatives, citizens, researchers, and members of the private sector converged in Bonn, Germany for two weeks of meetings to advance global climate change negotiations, ending on May 10. While the annual international climate summit, called the Conference of the Parties or “COP,” attracts greater media attention, “intersessionals” like the recent Bonn meetings, along with remote work throughout the year, are when parties do the real work to hash out the details of COP decisions.

The recent Bonn negotiations sought to advance progress on a “Paris Rulebook” which will set out guidelines for how countries should implement their pledges for climate action—known as “nationally determined contributions” (NDCs)—under the Paris Agreement. When the Paris Agreement was negotiated, countries largely expected it would enter force no earlier than 2020, leaving them several years to lay out the rules of the road for implementation. However, the Paris Agreement entered into force unexpectedly quickly in November 2016. This has in turn pressured parties to speed up production of implementation guidelines for their climate action pledges.  Parties have now set a deadline to produce the Paris Rulebook by the upcoming COP 24, to be held in December 2018 in Katowice, Poland. Read more »

By William Omorogieva*

The intensity of recent hurricanes and the damage they have caused in America have garnered lots of national news coverage. After Hurricane Katrina, it became evident how a lack of planning for natural disasters can have dangerous and deadly consequences. However, often hidden from public view is the struggle that some of our most vulnerable citizens endure during times of hurricanes and other natural disasters. Inmates in prisons and jails cannot take care of themselves and must rely on prison officials to do so. During national disasters like hurricanes, prisoners have consistently suffered physical and mental injuries and often have no remedy for their suffering. In a country that has more correctional facilities than colleges, it is unfortunate how often prisoners’ rights are left out of sight and out of our hearts.

The accompanying paper explores the correctional sector in the United States and the culture of neglect regarding prisoner safety and well-being during natural disasters, with a focus on Hurricanes Katrina, Harvey, Irma, and Maria. This paper covers rights that prisoners have under the Eighth Amendment of the United States Constitution and other federal statutes. The paper goes on to examine prison emergency preparedness in general and the lack of continuity regarding planning for natural disasters.

Prisoner conditions during recent hurricanes are examined closely to highlight how a lack of adequate emergency planning led to inmates living in unsuitable living conditions that violated their constitutional rights. It is important to note that for over a decade after Hurricane Katrina, during which prisoners suffered dearly, this repeated cycle of unacceptable living conditions and deprivation of prisoner’s rights has continued. The paper closes by recommending changes to some of the federal legislation that gives prisoners’ rights. These changes, which range from legislative approaches to litigation, are meant to create comprehensive federal protections for prisoners who are confronted with horrible living conditions and inadequate health care when they are not evacuated during hurricanes.

*William Omorogieva is a member of the J.D. Class of 2019 of Columbia Law School.  He is from Washington, D.C.

By Richmund Sta. Lucia

On March 27, 2018, the Philippine Commission on Human Rights (CHR) held its first hearingon the petition seeking to hold the “Carbon Majors” accountable for contributing to global emissions of greenhouse gases and the resultant impacts of climate change. The said petition requests the CHR to investigate the responsibility for climate-related human rights violations of the so-called “Carbon Majors”—companies engaged in the oil & gas, coal, and cement business that include household names in the energy industry such as Chevron, ExxonMobil, Royal Dutch Shell, and British Petroleum. (In a previous post, we tackled the issue on the jurisdiction of the CHR to investigate the allegations set forth in the petition.) The conduct of the hearing shows initial progress and serious intent on the part of CHR to investigate, gather facts, and shed light on the possible culpability of the respondent corporations.

Conduct of the First Hearing

The public hearing was held on March 27-28, 2018 at the CHR Session Hall in Manila, Philippines.  It was streamed live online. On the first day, Mr. Chito Gascon, Chairman of the CHR, gave his opening remarks to start the proceedings dubbed as “National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility Therefor, if any, of the ‘Carbon Majors’”. Commissioner Roberto Cadiz chaired the hearing. The petitioners’ counsel entered their appearance; no representatives from the respondents were present.

After the petitioners’ counsel gave their opening statement, they presented six witnesses (also known as “resource persons”) on day one (March 27), including a member of the youth and an indigenous people community, the head of a national association of farmers, a community leader in the rural areas and a vegetable farmer, and a fish vendor whose husband is a fisherman. They narrated how climate change adversely affected their health, livelihood, and overall quality of life. In addition, expert witnesses also gave their testimonies regarding the role of greenhouse gases in the environment, how climate change caused by emissions can be traced to carbon major producers, and observed climate trends and projections in the Philippines. (A video recording of the hearing held on day one can be accessed here.)

On day two (March 28), additional witnesses were presented. A leader of a transportation workers union shared how extreme heat and weather-related events affected their livelihood in the transport sector. Moreover, experts from the University of the Philippines’ Marine Science Institute testified about the role of carbon dioxide in ocean acidification and how such phenomenon makes the Philippines’ coastal areas more vulnerable. Other experts also gave their presentations about the impacts of climate change on human health as well as the nexus between Carbon Majors and industry knowledge on climate science. (A video recording of the day two hearing can be found here.)

During these hearings, the Commissioners often asked clarificatory questions to the witnesses and the counsel of the petitioners. There were also some interesting questions that were raised during the hearing. One of the petitioners, the President of the Philippine Rural Reconstruction Movement, inquired whether the CHR will invite resource persons (scientists, statisticians, etc.) who deny the phenomenon of climate change. Commissioner Cadiz replied in the affirmative, reasoning that the human rights tribunal will consider all available evidence that will help them arrive at an informed resolution. Based on such statement from the CHR, the agency affirms its commitment to conduct the hearings in a balanced and impartial manner.

Non-Participation by the Respondents

It came as no surprise that the Carbon Majors did not participatein the first hearing. The respondents did not have any representative in the proceeding; neither did they file any pleading or motion with the CHR. If at all, this move is consistent with their express position (as far as those who had earlier submittedletter-responses) that the Philippine agency does not have jurisdiction over them. The CHR was also expecting this turnout even at the get-go; nevertheless, it believes that due to the overarching importance of today’s climate issues, the respondent corporations—and the general public—continue to take interest and are closely monitoringdevelopments on the proceedings. Consequently, the CHR completed the first hearing without the respondents’ participation. In contrast, some climate experts based in the United States (e.g.., the Center for International Environmental Law and the Union of Concerned Scientists) have expressed supportto the petitioners during the hearing and buttressed the petition’s scientific basis for the nexus between the Carbon Majors and climate-related human rights violations.

The Carbon Majors’ lack of participation in the hearings can be deemed a constant challenge that the petitioners as well as the CHR have to deal with throughout the course of the petition. If the respondent corporations will continue to ignore the proceedings, the CHR will be constrained to consider ex parte only the facts and evidence presented by the petitioners. Later, the outcome of the proceedings will come in the form of a recommendation by the CHR as to what steps to do next in accordance with its rules of procedure, such as requesting any department, bureau, office, or agency of the Philippine Government to provide assistance or take appropriate action. It becomes even more interesting if the resulting recommendation by the CHR arises from a determination that the Carbon Majors indeed contributed to climate change and are held to be directly responsible for causing extreme weather events (including the deadly Typhoon Haiyan that struck the Philippines in 2013). As things currently stand, it would be reasonable to expect the respondent corporations will show stiffer opposition against the CHR’s jurisdictional authority in the future.

The CHR’s Omnibus Rules of Procedure(Guidelines and Procedures in the Investigation and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR Assistance) contains procedural guidelines that both the CHR and the petitioners may invoke to deal with the issue of non-participation by the respondents. Rule 3, Section 1 provides the powers and functions of the CHR in its investigative and monitoring functions. According to this Rule, the CHR can conduct fact-finding missions, visits, and inspections of the place where human rights violations occurred. Similarly, it is within the CHR’s authority to conduct preliminary conferences, dialogues, public inquiries, forums, or hearings on cases involving human rights violations, as well as human rights issues of national or international importance. Also, Rule 4, Section 11 provides that the processes issued by the CHR in aid of its investigation, either in the form of a notice, letter-invitation, order, or subpoena, shall require the respondents to respond to the complaint and also inform them that in case of failure to attend or respond, the CHR will proceed with the investigation and decide on the basis of the evidence and documents on record.

CHR’s Enforcement Powers?

There is one point of contention, however, that can be raised relating to the enforcement powers of the CHR: does it have the power to compel parties to attend hearings? It is interesting to note that under the Omnibus Rules, it can issue invitations, subpoenas, orders, or other processes requesting or directing any person to appear, attend and testify at the meeting, forum, conference, dialogue, public inquiry, or hearing conducted by it. Corollary to this, the subject person can be requested or directed to produce and submit records, documents, books or other things under his or her possession, control or supervision, as deemed relevant to the case being investigated by the CHR. What is more, the Omnibus Rules states that the CHR can cite any person in contempt for violation of the Rules, in accordance with the Philippine Rules of Court (which governs rules of procedure).

The CHR’s contempt power finds its fundamental basis in Section 18, Article 13 of the Philippine Constitution. Under Rule 15, the agency can hold a party committing a contumacious act liable for direct or indirect contempt. The grounds for indirect contempt include disobedience of or resistance to a lawful writ, process, order, judgment, or command of the CHR, as well as failure to obey its subpoena. If the penalty meted for contempt is imprisonment, it may call for the appropriate law enforcement agency to effect arrest and detention. It bears emphasis that the CHR and the Philippine Department of Justice (as the governmental agency tasked with criminal prosecution) entered into a Memorandum of Agreement where both agencies are enjoined to coordinate regarding the investigation and prosecution of human rights violations.

If we take a closer look at Philippine jurisprudence, there appears to be somewhat an inconsistency between the Omnibus Rules and a judicial pronouncement made by the Philippine Supreme Court in 1992. In Export Processing Zone Authority v. CHR, the high court ruled that the CHR does not have jurisdiction to issue a restraining order or writ of injunction because it is not a court of justice. What the court suggested to the human rights agency is to provide “preventive measures and legal aid services” by applying for an injunction from judicial courts on behalf of the human rights victims. Hence, this particular ruling of the Philippine Supreme Court does not recognize the CHR’s enforcement power to issue injunctions.

If the CHR does not have any enforcement powers to compel the respondents via injunction, then it can resort to merely “invite” them and urge participation. As statedby a CHR commissioner, the agency’s purpose is “to foster dialogue between stakeholders”. While an invitation does not have compelling power similar to an injunction issued by a court of law, there are other powers and functions that the CHR can resort to in order to give more teeth to its authority to enforce participation in the hearings. For example, the jurisprudential rule in the EPZA case can be narrowed down to the specific facts in that case and no further. In other words, it can be conceded that the CHR, according to EPZA, does not have the legal authority to compel a person to cease and desist from continuing acts deemed violative of human rights by way of an injunctive writ; this notwithstanding, the CHR’s power to issue subpoenas against a person or to produce documents, as well as the authority to hold a person in contempt, can still be used by the CHR (as provided under the Omnibus Rules) in order to “direct” a person to comply with its orders, especially with respect to its investigative and fact-finding authority.

Since there is no case law yet that specifically addresses the issue on whether the CHR is legally authorized to exercise the above powers granted by the Omnibus Rules (which is entitled to a legal presumption of validity), it can be reasonably argued that the CHR is not prohibited from doing so. If the authority to issue subpoenas and contempt powers will be exercised by the CHR against the respondents, its authority to direct them to participate in the hearings will be more pronounced. It can also send a strong signal to all observers that the CHR is indeed serious in pushing the progress of the proceedings and ultimately determine accountability. The end result of the proceedings is that the CHR would come up with a resolution containing recommendations to policymakers in order to combat climate change and prevent related human rights violations. According to the CHR, the agency’s records will be available to the public should anyone intend to file cases in regular courts to pursue civil or criminal charges.

Procedural Considerations in the Future

As to whether the respondent corporations will actually acquiesce to the CHR’s orders is another matter. The Carbon Majors can argue against the seeming extraterritorial effect of the proceedings—the CHR’s jurisdiction is only territorial, i.e., it can only investigate human rights violations that occur within the Philippines. This raises a tricky question because the impact of climate change is global in scope and transcends national borders. Then again, similar to the direct effects of climate change, e.g., Typhoon Haiyan caused massive injury to life, health, and property in the Philippines, there is basis to argue that the CHR can compel respondents to participate in the proceedings or otherwise forfeit their opportunity to present evidence and argue. Moreover, with respect to the Carbon Majors which have a business presence in the Philippines (such as Chevron and Royal Dutch Shell), the CHR can more likely issue subpoenas or use contempt powers to elicit compliance with its orders or recommendations.

As a matter of procedure, the CHR can generally acquire in personam jurisdiction through service of summons or voluntary appearance in court (Prudential Bank vs. Magdamit, 2014). (Note that judicial procedural rules apply to CHR proceedings in a suppletory fashion according to the CHR Omnibus Rules, Rule 7, Section 22.) Rule 14 of the Rules of Court provides that while personal service of summons is the preferred mode, the rules also recognize other modes of service of summons: (1) substituted (i.e., leaving a copy of the summons at the defendant’s residence or regular place of business); and (2) extraterritorial (i.e., for a non-resident defendant which has property in the Philippines, service may be made outside the Philippines by either personal service or by publication in a newspaper of general circulation in such place ordered by the tribunal). If the tribunal has no jurisdiction over the person of the defendant, the complaint will be dismissed (Philippine Rules of Court, Rule 16, Section 1(a)). Here, the petitioners argue that extraterritoriality is “not a bar to the Commission’s exercise of authority, considering the transboundary nature of climate change and other environmental problems and the associated human rights implications.” (Petition, p. 11) They also acknowledge, though, that “[i]f extraterritorial service of notice, summons, and pleadings, as well as the conduct of investigation, cannot be facilitated or are denied facilitation by the national human rights institutions, or other equivalent body, in the countries of Respondent Carbon Majors, or for other practical reasons the same could not be implemented, Petitioners will find it amenable that the investigation and related processes for this Petition will involve onlythose Respondent Carbon Majors with branches, regional offices, and/or subsidiaries in or substantial connection (through their agents) to, the Philippines.” (Petition, pp. 11-12; emphases supplied).

In addition, the respondents can file a third-party complaint and bring in third-party defendants—with permission from the tribunal—as provided under Section 11, Rule 6 of the Philippine Rules of Court. Furthermore, Section 12 states that if there are additional parties whose presence is required in order for the tribunal to be able to grant complete relief, the tribunal will order them to be brought in as defendants, so long as jurisdiction over them can be obtained. In other words, the Carbon Majors could argue that other companies (e.g., other oil, gas, and coal companies, motor vehicle manufacturers, cement companies, electric utilities, and others that were not named in the petition) would also be liable if they are, and therefore should also be brought before the tribunal. The above issues on personal jurisdiction and third-party complaints are procedural matters which the CHR may possibly need to deal with should the respondents raise them in the future.

Aside from the CHR’s Session Hall in Manila, hearings in the future are also scheduledin New York (September 24-28, 2018, hosted by the New York City Bar Association) and London (November 5-9, 2018, hosted by the London School of Economics). These locations are nearer to the global headquarters of some of the Carbon Majors. This can be a logistical reason for them to attend the next hearings. In addition, the perceived “home court advantage” that the petitioners may have had in Manila may be counterbalanced in these locations. Whether the Carbon Majors will find these considerations sufficient to reconsider their position and later decide to participate in the hearings set in these neutral venues outside the Philippines remains to be seen. Yet, it bears emphasis that Commissioner Cadiz noted during the hearing the manifestation of Cemex (a Carbon Major based in Mexico) dated December 7, 2017 withdrawing its challenge on the jurisdiction of the CHR to conduct the inquiry. In effect, Cemex withdraws its motion to dismiss dated September 14, 2016 that it earlier filed. If at all, this could be a positive development towards better participation in the dialogue; hopefully, other Carbon Majors will follow suit. In the meantime, the CHR and its ongoing investigation will be needing the support of organizations and individuals in the fields of public policy, science, economics, law, and other fields that can be united by a common advocacy for climate justice.

Richmund Sta. Lucia, a candidate for an LL.M. degree at Columbia Law School, received his J.D. degree from the University of the Philippines College of Law and has worked as an attorney in the Philippines’ Office of the Solicitor General and private law firms. His legal advocacy includes the promotion of renewable energy. This blog presents his personal views and not necessarily those of 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 at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 109.

FEATURED CASE

Federal Circuit Reversed Ruling That Held U.S. Liable for Louisiana Flood Damage

The Federal Circuit Court of Appeals reversed the Federal Court of Claims finding that the federal government was liable for flood damage in St. Bernard Parish and New Orleans that was caused by Hurricane Katrina and other hurricanes. The plaintiffs, who were property owners in St. Bernard Parish and the Lower Ninth Ward of New Orleans, contended that the government was liable for a taking based on its inaction, including the failure to properly maintain or modify the Mississippi River-Gulf Outlet (MRGO), and its actions, including the construction and operation of the MRGO channel. The Federal Circuit held that the government cannot be liable for inaction on a takings theory and that the construction and operation of MRGO had not been shown to be the cause of the flooding. The court found that the plaintiffs and the Court of Claims had not applied the correct legal standard to the causation analysis, which was required to “account for government flood control projects that reduced the risk of flooding.” The court said the plaintiffs failed to present evidence comparing the flood damage that occurred to what would have occurred had there been no government action at all and so had failed to take account of actions—including a system of levees and floodwalls known as the Lake Pontchartrain and Vicinity Hurricane Protection Project—that mitigated the MRGO impact. St. Bernard Parish Government v. United States, No. 2016-2301, 2016-2373 (Fed. Cir. Apr. 20, 2018).

Read more »

By Romany Webb and Jessica Wentz

The latest round of United Nations (UN) climate change talks got underway yesterday – April 30 – at the seat of the secretariat to the UN Framework Convention on Climate Change (UNFCCC) in Germany. The so-called “intersessional” talks, which take place each year midway between the annual Conference of the Parties to the UNFCCC, are intended to advance discussion on implementing the 2015 Paris Agreement. Meetings will be held by the Ad Hoc Working Group on the Paris Agreement, as well as the UNFCCC subsidiary bodies for implementation (SBI) and scientific and technological advice (SBSTA).

A key focus of the SBSTA meeting will be on developing guidelines for implementing Article 6 of the Paris Agreement. That article – often termed the “cooperative approaches provision” – establishes a framework under which Parties to the Paris Agreement may cooperate on actions to mitigate climate change. This has the potential to benefit developing countries, leading to increased funding for their climate change mitigation projects. Care must, however, be taken to ensure that those projects do not adversely affect local communities or infringe on individuals’ human rights. Recognizing this, in their submissions to SBSTA, several Parties have called for action to ensure the protection of human rights.

To inform discussions on this issue, the Sabin Center is today publishing a working paper, which explores different approaches to ensuring human rights are protected in the context of Article 6. We identify three key approaches:

• The adoption of social and environmental safeguards for the Article 6 cooperative approaches that resemble (but ideally improve upon) the types of safeguards adopted for the CDM and other project finance mechanisms.
• The establishment of guidelines aimed at ensuring that a portion of the revenue from the cooperative approaches is channeled to countries and communities where climate change poses the greatest risk to human rights.
• The incorporation of human rights considerations into the overarching implementation guidelines for the Paris Agreement.

While none of these approaches is expressly required by the Paris Agreement, they are implicitly authorized by language in the preamble calling upon Parties to respect, promote, and consider human rights when acting on climate change. How the Parties will do that remains to be seen.

By Romany Webb

The New York Independent System Operator (NYISO) – the entity responsible for managing New York’s electric grid – is currently undertaking a major review to determine whether and how a carbon price could be integrated into wholesale electricity markets. This is widely seen as necessary to harmonize markets with state policies aimed at decarbonizing electricity generation. To achieve that goal, the state has provided certain renewable and nuclear generators with out-of-market payments, intended to reflect their low-carbon attributes. Concerned that those payments may distort the wholesale electricity market – e.g., by causing uneconomic generators to remain in operation instead of retiring – NYISO has proposed “internalizing” the value of low-carbon generation by adopting a carbon price.

To explore possible approaches to carbon pricing, NYISO and state officials have convened a task force, which is expected to develop a proposed carbon pricing scheme by December 2018. While details of the scheme are still being discussed, NYISO has suggested that generators be required to pay a carbon fee, which would be calculated based on their carbon dioxide emissions per megawatt hour of generation, multiplied by a uniform (per ton) carbon price. How that price should be set has generated much debate among stakeholders.

Read more »

By Jose Felix Pinto-Bazurco*

Photo credit: Jose Felix Pinto-Bazurco

On April 17, 2018, Peru passed its first framework law on climate change. Ley Marco sobre Cambio Climático  (Climate Change Framework Law) will create an institutional framework to address climate change in Peru, articulating in a single instrument the scope of existing national policies, including those set out in the 2014 National Strategy on Climate Change (ENCC). The law also outlines new measures, particularly with respect to climate change mitigation. It includes, for example, provisions dealing with: increasing carbon capture and use of carbon sinks; afforestation and reforestation practices; land use changes; and sustainable systems of transportation, solid waste management, and energy systems. Adaptation is also addressed, though in significantly less detail. This is interesting given that Peru will directly benefit more from adaptation than from mitigation actions and that Peru does not produce a significant share of global greenhouse gas emissions (0.2% of total global emissions).

Despite the failure to fully address climate change adaptation, the new law clearly demonstrates Peru’s interest in advancing climate solutions. While the idea of a Peruvian climate change framework law emerged some years ago when several political groups proposed a range of climate bills, this law was proposed by the executive branch and was passed unanimously by the parliament. It is the first Latin American climate change framework law to incorporate responsibilities from the Paris Agreement. Hopefully, it will enable Peru to contribute to global solutions to address climate change, and achieve the Paris Agreement’s goals. However, like many legal instruments in Peru, its effectiveness will depend on whether the political will exists to advances its implementation.

Read more »

By Romany Webb

On January 8, 2018, the Federal Energy Regulatory Commission (FERC) initiated a proceeding to “evaluate the resilience of the bulk power system” in areas overseen by Regional Transmission Organizations and Independent System Operators (RTO/ISOs). As part of the proceeding, RTO/ISOs were asked to provide information on “the primary risks to resilience in [their] region,” and “how [they] identify and plan for those risks.” Their responses, filed with FERC in early March, offer a glimpse into what RTO/ISOs see as the most pressing threats to their systems. For some – most  notably the New England ISO – it’s clearly the potential for fuel supply disruptions. Others – such as the Midcontinent ISO – seem more concerned about the risk of cyber and physical attack. None, however, are focused on the threats posed by climate change. That is a significant oversight which leaves RTO/ISOs ill-equipped to deal with the impacts of climate change and thus threatens the resilience of the bulk powers system.

Recognizing this, in a letter filed with FERC today, the Sabin Center calls for action to ensure that RTO/ISOs adequately plan for the impacts of climate change. The letter draws on a recent Sabin Center white paper discussing the potential for climate change impacts to disrupt operation of the bulk power system, for example, by forcing generating facilities to curtail output or shutdown and leading to widespread transmission outages. As explained in the letter, while climate change-related disruptions are likely to be experienced in all RTO/ISO regions, they have been largely ignored in RTO/ISO planning. No RTO/ISO has, to our knowledge, undertaken a comprehensive assessment of how climate change will affect their system or developed a plan for managing those effects.

To address this deficiency in RTO/ISO planning, FERC should convene a technical conference to explore the risks posed by climate change, and how best to plan for those risks. FERC should also consider initiating a rulemaking or other appropriate proceeding to develop standards for climate change planning. This is, in our view, necessary to fulfil FERC’s statutory duty to ensure the bulk power system delivers reliable electricity services at just and reasonable rates. To achieve that goal, the bulk power system must be able to withstand and recover from climate change-related disruptions, which will only be possible if RTO/ISOs plan effectively. Planning is also required to ensure that RTO/ISO-operated markets account for the risks posed by climate change and thus provide appropriate incentives for investment in new facilities capable reliably delivering electricity. Hopefully FERC will remember that as it explores options to enhance the reliability and resilience of the bulk power system.

Click here to read our letter to FERC in full. Further information about FERC’s resilience proceeding is available here.

By Susan Biniaz

You may be an experienced negotiator of international environmental agreements.  Or you may be new to the field and excited to negotiate your very first one.  In both cases, you know your precedents, helped craft your government’s positions, and are anxious to get started.  But wait…before you negotiate the agreement, you will need to navigate the mandate.

A mandate launches the negotiation of an international environmental instrument and sets forth its terms of reference, both procedural (such as where and when it will take place) and substantive (such as what the instrument should address). It is generally issued by the UN General Assembly (e.g., in the case of a new global instrument), a treaty body (e.g., in the case of an amendment to an existing agreement), or another institution (e.g., in the case of an instrument covering a particular region).

There is far more commentary on international agreements than on the negotiating mandates that precede them. However, such mandates can be highly significant. They are often the place where key issues are pre-negotiated and, even when they do not go so far, what a mandate says – or does not say — can affect the ultimate design and content of an agreement, as well as its attractiveness to potential Parties.

This guide looks at the issues commonly addressed by negotiating mandates[1] for international environmental agreements, options for addressing them, and examples of mandate provisions that have been particularly significant in relation to agreements’ outcomes.

Susan Biniaz, formerly a long time U.S. Department of State lawyer, is on the adjunct faculty of Columbia Law School and is a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.  

Read her paper here

[1] A mandate may also be called a “modalities resolution.”