Climate Law Blog

Reducing pollution from the transportation sector is one of the most important steps to sustaining a livable climate. The transportation sector is the leading source of greenhouse gas emissions in both the United States and New York. Cars, trucks and buses also emit other harmful air pollutants that more immediately contribute to public health threats such as asthma, heart disease, and premature death. These negative impacts are concentrated in low-income communities and communities of color, which are often located near highways, transportation depots, and freight hubs.  In addition to being disproportionately exposed to air pollution and affected by related health problems, these communities often have inadequate access to public transportation options, which limits access to health care, services, and jobs.

In response to these climate and equity challenges, the Transportation and Climate Initiative (TCI) seeks to reduce greenhouse emissions from the transportation sector while investing in communities that are overburdened by transportation pollution and underserved by transit. The initiative seeks to reduce greenhouse through a cap-and-invest model that taxes fuel providers and reinvests the proceeds in clean transportation. Four jurisdictions (Rhode Island, Massachusetts, Connecticut and the District of Columbia) have signed a Memorandum of Understanding committing to the TCI program. Nine other states, including New York, are considering joining the program.

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By Michael B. Gerrard

Photo by Mark Koch on Unsplash

The constitutions of more than three-quarters of the countries on earth have explicit reference to environmental rights or responsibilities  In the last several years courts in the Netherlands, Germany, France, Australia, Pakistan, Nepal and Colombia have held that these provisions, or similar non-statutory doctrines, require national governments to act on climate change.

Not so in the United States.  The U.S. Constitution has no explicit right to a clean environment, and efforts to persuade judges to find an implied right have not succeeded.  Most recently, in the famous Juliana v. United States case, plaintiffs sought an order directing the federal government to slash the nation’s greenhouse gas emissions.  The district court in Oregon in 2016 seemed to favor such a right, but a divided Ninth Circuit concluded in 2020 that the plaintiffs lacked standing. (The plaintiffs are now back in the district court seeking much more modest relief.)

However, the constitutions of six states do have provisions with explicit environmental rights – Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island.   Several other states’ constitutions have language about protecting the environment, but without clearly creating any rights.  Most of these provisions were enacted in the early 1970s during that great period of environmental lawmaking, but they received relatively little attention until a 2013 decision by the Pennsylvania Supreme Court, Robinson Township v. Commonwealth, which used the state constitution’s Environmental Rights Amendment to invalidate a state statute that had prevented municipalities from barring hydraulic fracturing.

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By Romany M. Webb and Korey Silverman-Roati

Ocean alkalinity enhancement (OAE) is one of several proposed techniques for removing carbon dioxide from the atmosphere and storing it in the oceans. As a result of natural processes, the oceans have already absorbed around 30% of all carbon dioxide emitted by humans since the start of the Industrial Revolution, helping to reduce the rate of climate change. This natural absorption has, however, also led to ocean acidification which threatens corals, crustaceans, and other calcifying organisms by making it more difficult for them to build their skeletons and shells. OAE seeks to counteract ocean acidification, while also increasing carbon storage in the oceans. In OAE, alkaline materials such as ground rock are added to ocean waters, increasing pH levels (and thus reducing acidity) and enabling greater uptake of carbon dioxide. After a series of chemical reactions, the carbon dioxide ends up stored in carbonate sediments on the ocean floor, likely for tens of thousands of years.

OAE has the potential to remove large amounts of carbon dioxide from the atmosphere which, together with emissions reductions, would help to mitigate climate change. OAE also presents risks, however. For example, some materials proposed for use in OAE contain heavy metals, which could contaminate ocean waters and harm marine organisms. They could also act as fertilizers, stimulating the growth of certain organisms, and thereby disrupting ecosystems. Field trials in the ocean are needed to fully assess these and other effects and verify the long-term carbon storage potential of OAE. Such research and any subsequent deployment of OAE could raise a host of legal issues.

The Sabin Center’s latest white paper – Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges and Opportunities – analyzes the international and domestic (U.S.) legal frameworks for OAE research and deployment. As explained in the paper, there are currently no international or U.S. laws specifically governing OAE, but a number of general environmental and other laws could apply. At the international level, potentially applicable instruments include the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, and the London Convention and Protocol on Ocean Dumping. Our paper provides an in-depth analysis of whether, when, and how those and other international agreements and customary international law will apply to OAE. We also discuss the application of domestic laws, such as the federal Marine Protection, Research, and Sanctuaries Act, Clean Water Act, Coastal Zone Management Act, and National Environmental Policy Act.. As we show, none of these laws were developed with OAE in mind, creating significant uncertainty as to how projects will be treated. Much is likely to depend on exactly where and how projects are conducted. Some projects could be subject to multiple permitting and other requirements, which could create challenges for developers and add time, cost, and uncertainty.=

Read the full paper here.

Related work: The Sabin Center is preparing a series of white papers examining legal issues associated with carbon dioxide removal and storage. Previous papers have discussed the legal framework for carbon removal via enhance weathering, as well as carbon storage in the sub-seabed off the east and west coasts of the United State and the west coast of Canada. For more information about this and other related work, visit our website here.

In January 2021, the Sabin Center released a paper discussing key legal challenges and opportunities associated with both OAE and seaweed cultivation for the purposes of carbon dioxide removal. This paper builds on that prior work. It focuses solely on OAE and includes additional analysis of applicable customary international law, state permitting and other requirements, and issues relating to tribal rights (among other additions). Separate papers analyzing the international and domestic legal frameworks for seaweed cultivation, artificial upwelling and downwelling, and ocean fertilization for carbon dioxide removal are currently in development. This work is generously supported by ClimateWorks Foundation.

By Romany M. Webb

This week’s IPCC report is another stark reminder of the need to dramatically reduce greenhouse gas emissions to avoid climate disaster. While the U.S. has started down the path of decarbonizing its economy, there remains significant work to do, and many challenges ahead. Some sectors, including certain heavy industries and freight transport, will be hard to fully decarbonize. To the extent those sectors continue emitting carbon dioxide and other greenhouse gases, those gases will need to be captured prior to release into the atmosphere. Most climate models suggest that it will also be necessary to remove previously emitted carbon dioxide from the atmosphere – a process known as carbon dioxide removal – to stay within the 1.5 to 2^oC target set in the Paris Agreement. This necessarily raises the question: what should be done with all of the carbon dioxide?

Some have proposed using carbon dioxide for enhanced oil recovery or to produce fuels or other products, but the climate benefits of such utilization are uncertain. Another option is to store the carbon dioxide in a way that prevents its release (or re-release) into the atmosphere. One promising option involves injecting carbon dioxide into underground basalt rock formations, where it would rapidly mineralize and become solid carbonate rock. There are large basalt formations, capable of storing massive amounts of carbon dioxide, in the sub-seabed off the U.S. coast. However, under existing law, those formations likely could not be used for carbon storage. The INVEST in America Act (also known as the bipartisan infrastructure bill) that just passed the Senate could change that if it becomes law.

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By Hillary Aidun

On Wednesday, August 4, the New York Board on Electric Generation Siting and the Environment (Siting Board) approved a 100-megawatt solar facility in New York State. The Flint Mine Solar Project will displace up to 4.9 million metric tons of carbon dioxide-equivalent greenhouse gas emissions over its lifetime and infuse $15 million directly into the local economy through payments to participating landowners. The Siting Board’s decision was celebrated by a group of local farmers, residents, and other stakeholders called Friends of Flint Mine Solar, which has advocated for the project for years. Read more »

By Margaret Barry and Korey Silverman-Roati

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 # 148.

FEATURED CASE

Washington Supreme Court Said Climate Activist Was Entitled to Present Necessity Defense Based on Evidence that Legal Alternatives Were Not “Truly Reasonable”

The Washington Supreme Court ruled that a climate activist should be permitted to present a necessity defense to charges of criminal trespass and unlawful obstruction of a train in connection with a 2016 protest on railroad tracks used by trains carrying coal and oil products. The Supreme Court reversed an intermediate appellate court’s decision affirming a superior court determination that the defendant could not present a necessity defense. The intermediate appellate court held that the defendant was not entitled to present the defense because he had “reasonable legal alternatives” to trespass and obstruction even if those alternatives were not effective. The Supreme Court called the appellate court’s conclusion that there are always reasonable legal alternatives to disobeying constitutional laws “untenable,” and held that “reasonable legal alternatives” must be effective. Whether a legal alternative was “truly reasonable” would be a fact-dependent determination, and “[i]f the defendant offers evidence that they have actually tried the alternative, had no time to try it, or have a history of futile attempts with the alternative, they have created a question of fact for the jury regarding whether there are reasonable legal alternatives.” In this case, the defendant had presented a question of fact as to whether reasonable legal alternatives existed with evidence of his efforts over the years to “call attention to the harms of climate change through lawful methods.” The Supreme Court also noted the testimony of the defendant’s expert on nonviolent resistance “that peaceful civil disobedience is essential to combating climate change.” In the interests of judicial economy, the Supreme Court also held that the defendant satisfied the other three elements of the necessity defense: (1) he presented sufficient evidence to reach a jury on the question of whether he believed his actions were necessary to avoid or minimize harms; (2) he did not bring about the threatened harms; and (3) he presented sufficient facts to support a conclusion that the harms he sought to avoid were greater than the harm caused by violation of the law, including evidence that he planned the protest for a time when trains were not scheduled to approach and that he notified the railway company. State of Washington ex rel. Haskell v. Spokane County District Court, No. 98719-0 (Wash. July 15, 2021).

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By Daniel J. Metzger,

    Flickr image

As with almost all climate litigation, science plays a central role in climate cases brought under the Takings Clause of the United States’ and many state constitutions. The cases filed to date have involved claims that challenge the constitutionality of both adaptation and mitigation measures. For instance, real estate developers have claimed that land use and zoning regulations that seek to reduce exposure to climate change impacts constitute regulatory takings. Property owners have claimed that restrictions on the development of fossil fuel infrastructure upset their investment-backed expectations. And property owners adversely impacted by climate-related flood control measures have sought compensation for their harms. The foreseeability of climate change impacts and the causal connections between local action and global climate change are not always explicit elements of a claim, but they remain critical issues for litigants and courts to address.

A new white paper published today examines the role attribution science plays in climate-related takings cases. That science factors into plaintiffs’ claims, government defenses, and judicial decisions. Among other conclusions, the paper suggests that marshalling the best available climate change attribution science can bolster governments’ defenses of climate regulations.

Additional resources from the Sabin Center on the intersection of law and science include The Law and Science of Climate Change Attribution, a comprehensive overview of attribution research and its application in legal settings, and the Climate Attribution Database, a thematically organized repository of state-of-the-art climate change attribution science. For more information about the Sabin Center’s other publications visit our searchable library here.

By Ruth Santiago and Michael B. Gerrard*

This opinion piece was first published in The Hill. It is available here. 

The Biden administration faces a choice that could advance two of its core objectives — fostering environmental justice and fighting climate change.

Puerto Rico’s already troubled energy system was devastated by Hurricane Maria in 2017 and a magnitude 6.4 earthquake in 2020. The Federal Emergency Management Agency (FEMA) has allocated $9.6 billion for electric system work in Puerto Rico. FEMA now has to decide whether to use this money on yet more fossil-fuel generation, which would worsen the unhealthy levels of air pollution, or instead devote most of it to rooftop solar, which would be healthier for residents, create more local jobs and make the power supply more resilient to disruption of the fragile electrical grid.

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By Amy Turner

Yesterday, the U.S. District Court for the Northern District of California issued a long-awaited decision in California Restaurant Association v. City of Berkeley. The decision essentially – and subject to possible appeals – answered in the negative the question of whether Berkeley’s first-in-the-nation prohibition on natural gas hookups to newly-constructed buildings (often termed a “natural gas ban”; herein referred to as the “Berkeley Ordinance”) was preempted by the U.S. Energy Policy & Conservation Act (“EPCA”). But, more than that, the decision offers guidance with respect to other questions on local policymakers’ minds: What, exactly, does EPCA preempt? Does the phrase “local regulation… concerning the energy conservation [or] energy use” capture a huge range of policies that effectively, but indirectly, preclude the use of an energy type, no matter how far from direct energy “standards” they may be? The District Court’s decision indicates that EPCA preemption is not so far-reaching as some had argued.

To take a step back, EPCA – a sprawling law passed in the 1970s meant to conserve energy in the face of the oil crisis – directs the U.S. Department of Energy to set energy efficiency, energy use and water use standards for a range of “covered appliances,” including many large building systems like furnaces, water heaters and HVAC systems. In so doing, the law also expressly preempts state and local “regulation[s]… concerning the energy efficiency, energy use, or water use” set for these same covered appliances. In short, the federal government sets energy efficiency standards for furnaces, hot water heaters and HVAC systems; therefore, local governments generally may not. (There are some exceptions to EPCA preemption, including for standards set in state and local building codes, so long as they offer a range of compliance options. Berkeley’s 2019 Ordinance was not part of a building code.) To date, few cases parse EPCA’s preemption provisions relating to appliance energy standards (and the ones that do look at the building code exception).

In California Restaurant Association, a trade group (the “CRA”) representing members “interested in opening a new restaurant or in relocating a restaurant to a new building in Berkeley,” brought suit against the city. The plaintiffs made both federal and state law claims. (The state law claims can be summarized for our purposes as asserting that Berkeley should have followed the state building code amendment process and other state laws in enacting its natural gas restrictions; those claims were not decided by the District Court and are not relevant for purposes of this post.) The federal law claims asserted that EPCA preempted the Berkeley Ordinance because the Ordinance effectively prohibits the use of natural gas appliances and therefore “concern[s] the… energy use” of covered building appliances. EPCA defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use,” and “energy” as “electricity, or fossil fuels.” According to the CRA, the Berkeley Ordinance effectively requires appliances covered by EPCA to directly consume “zero” natural gas.

The District Court was not persuaded by the CRA’s preemption argument, calling it an “expansive interpretation of the EPCA… remarkable for its sweeping breadth.” Citing precedents that call for a narrow interpretation of statutory preemption language, the court rejects the notion that EPCA preempts local ordinances that do “not facially address any of those [energy conservation or energy use] standards, let alone mandate or require any particular use of a covered product.” The court further notes that a prohibition on natural gas infrastructure in new buildings “is clearly outside the preemption provision of the EPCA.”

While the decision is undeniably good news for the Berkeley Ordinance, it also offers guidance to the many other local governments around the country considering some sort of restriction on building natural gas use, particularly outside of a state or local building code. First, the District Court puts to rest a broad reading of EPCA preemption that would disallow local laws that (1) do not facially or directly set energy efficiency or energy use standards but that (2) “have some downstream impact on commercial appliances.” In a September 2020 brief, the city of Berkeley lists precedent state and local requirements that regulate equipment “covered” by EPCA that nevertheless are not preempted by EPCA. State safety regulations, for example, set emergency egress requirements for cold-storage units, even though freezers are regulated by EPCA. Similarly, some local requirements in California restrict new swimming pools as a drought mitigation measure; Berkeley notes that EPCA does not preempt these restrictions as impermissible energy efficiency standards for pool heaters. While local governments will still need to navigate state law limitations, yesterday’s decision suggests that they need not overthink EPCA preemption; policies that have some indirect impact on EPCA-covered appliances will not be held preempted on that basis alone.

Second, the District Court repeatedly reaffirms that states and local governments have powers expressly or impliedly delegated to them that EPCA preemption was not intended to displace. In particular, the District Court cites “a city’s exercise of its power to regulate building infrastructure to protect public health and safety,” a traditional exercise of the police power left to the states under the Tenth Amendment of the U.S. Constitution. The decision also notes the federal Natural Gas Act’s delegation of “all aspects relating to the direct consumption of gas” to the states. Noting that “wide swaths of the U.S. … lack natural gas access,” the District Court reasoned that “nothing in [EPCA] evinces legislative intent to require local jurisdictions to permit the extension of natural gas service.” This endorsement of express and traditional sources of local government authority should give local governments some comfort that their building decarbonization policies will not be preempted by EPCA by virtue of their “downstream impact on … appliances.”

It should be noted that California Restaurant Association has not been finally decided. In addition to potential appeals, Judge Yvonne Gonzalez Rogers dismissed the state law claims without prejudice, meaning that plaintiffs may bring those claims in state court. And, of course, every local government is subject to unique state law limitations. Still, the decision is a win for local governments. Cities can take from this decision that EPCA does not – beyond its express terms – impinge on their health and safety authority (to the extent delegated by the state), and that “downstream” consequences of their local laws on appliance energy use will not, without more, doom these local laws to preemption under EPCA.

By Margaret Barry and Korey Silverman-Roati

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 # 147.

FEATURED CASE

Louisiana Federal Court Blocked Biden Administration “Pause” on New Oil and Gas Leases

The federal district court for the Western District of Louisiana issued a nationwide preliminary injunction barring the Biden administration from implementing a “Pause” on new oil and natural gas leases on public lands or in offshore waters. President Biden ordered the pause in Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” to allow completion of a “comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior’s broad stewardship responsibilities …, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.” Although the states challenging the pause based their request for a preliminary injunction on federal agencies’ violations of the Administrative Procedure Act, the court found as an initial matter that the states had made a showing that President Biden had exceeded his powers when he ordered the “Pause” because the Outer Continental Shelf Lands Act (OCSLA) does not grant specific authority for the President to pause offshore oil and gas leases. The court then proceeded to conclude that the states had alleged standing, with allegations of particularized and concrete injuries based on loss of proceeds from new leases, as well as from loss of jobs and economic damages. The court found that those alleged injuries were fairly traceable to the pause and that a favorable ruling would redress the injuries. The court also found that the states could establish standing as a result of “special solicitude.” In addition, the court found that the states’ claims under the Administrative Procedure Act (APA) were within the “zone of interests,” as were their citizen suit claim under OCSLA and their ultra vires claim. The court rejected the government’s contention that the “Pause” and related actions—the cancellation and stoppage of offshore lease sales and the cancellation or postponement of “eligible lands” under the Mineral Leasing Act (MLA)—were not final agency actions reviewable under the APA. The court cited cases finding actions that were not permanent to be final agency actions. In addition, the court rejected the contention that these actions were committed to agency discretion and therefore not reviewable; the court held that the pausing of a lease sale was not within the discretion of agencies under either the OCSLA or the MLA. With respect to the criteria for a preliminary injunction, the court found that the states had a substantial likelihood of success on the merits on proving that the federal agencies implemented the “Pause” as directed by the executive order both to sales under the MLA and the OCSLA. The court concluded that the states had a substantial likelihood of success on the merits of their claims that the federal agencies’ actions were contrary to law (the OCSLA and MLA), that their actions were arbitrary and capricious, that the agencies failed to provide notice and an opportunity to comment, and that they unreasonably withheld or unreasonably delayed action they were required to take. The court also found that the states demonstrated a substantial threat of irreparable injury in the form of “very substantial damages” from lost ground rents and bonuses that would be difficult or impossible to recover due to sovereign immunity. In addition, the court found that equity and the public interest weighed in favor of the plaintiff states. Having found that the factors for a preliminary injunction were satisfied, the court also found that the injunction should be nationwide in scope due to the need for uniformity. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La. June 15, 2021).

After the Louisiana federal court issued the nationwide injunction, the federal district court for the District of Wyoming issued a sua sponte order in a separate case challenging the pause on new onshore leasing. The order directed the parties to submit briefs on whether the court should stay proceedings in light of the Louisiana court’s order. The parties all opposed staying the proceedings, though the trade group petitioners said the court could temporarily defer ruling on their motion for a preliminary injunction. On June 30, the Wyoming federal court denied the motions without prejudice, finding that they were “materially moot.” Western Energy Alliance v. Biden, No. 0:21-cv-00013 (D. Wyo. June 16, 2021).

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