Climate Law Blog

        Bull Mtn Coal Mine, ©2015 Google Maps

By Jessica Wentz

This week, federal courts issued decisions on two cases involving questions pertaining to the scope of environmental review for fossil fuel production and transportation projects. Among other things, these cases examined the extent to which agencies had complied with obligations under the National Environmental Policy Act (NEPA) to examine the indirect and cumulative greenhouse gas emissions generated as a result of the proposed projects (and their impacts on fossil fuel development and consumption). This is a subject that Michael Burger and I have explored in our previous work.

The first of the two cases, Montana Environmental Information Center v. U.S. Office of Surface Mining, No. CV-106-M-DWN (D. Montana, Aug. 14, 2017), involved the U.S. Office of Surface Mining (OSM)’s environmental assessment (EA) for the proposed modification of a federal mining plan in the Bull Mountains of Montana. The proposed modification would expand the leased area by approximately 2,680 acres and allow the company operating the mine to access an estimated 61.4 million tons of additional coal reserves. In the EA, OSM estimated that the combined annual CO2e emissions resulting from mine operations, coal transport, and combustion would be 23.16 million metric tons and would continue for an additional nine years beyond that which would be anticipated under the no action alternative. Despite the large increase in coal production and corresponding greenhouse gas emissions, OSM concluded that the proposed modification would not have significant environmental effects and thus a full environmental impact statement (EIS) was not required.

A group of advocacy organizations challenged the adequacy of the EA and OSM’s finding of no significant impact (FONSI), citing various deficiencies in the agency’s analysis.  One of these deficiencies was OSM’s failure to use the social cost of carbon (SCC) protocol to calculate the cost of greenhouse gas emissions that would be generated as a result of the proposal, despite the agency’s having calculated the economic benefits of the project. Plaintiffs noted that, based on the projected emissions rate of 23.16 million metric tons per year, the cost of the emissions would be between $277 million to $2.5 billion annually.

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By Michael B. Gerrard

Donald Trump’s operating principles as relates to environmental regulation are:

• Regulations kill jobs; they are all costs, no benefits; we should do away with as many as we can.
• The U.S. should strive for “energy dominance” in the world, trying to follow the lead of those two countries he admires so much – Saudi Arabia and Russia.

Those two principles lead to a clear mandate: Leave no fossil fuels in the ground or unburned; and cut away or ignore any rules that get in the way. So far the current majorities in both houses of Congress think all that is just fine, though thankfully the courts do not seem to be agreeing.

This is a time of unprecedented peril to U.S. environmental law.  What can we environmental lawyers do about this?

Obviously each individual’s flexibility depends in large part on where we work – we academics have almost complete flexibility, lawyers in NGOs quite a bit, lawyers in law firms have significant constraints, and lawyers in government are the most tightly constrained.

But to the extent people do have flexibility, these are eight things we can do.

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Columbia Law School’s Sabin Center for Climate Change Law was honored on August 13 by the American Bar Association (ABA) this weekend with the Distinguished Achievement in Environmental Law and Policy Award in recognition of its outstanding contributions to environmental protection and sustainable development efforts in the United States.

The award was presented by the ABA Section of Environment, Energy and Resources during the association’s annual meeting in New York City.

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Jessica Wentz and Susan Biniaz

Earlier this week, the D.C. Circuit Court of Appeals vacated a 2015 EPA rulemaking aimed at phasing out the use of hydrofluorocarbons (HFCs), a potent class of greenhouse gas emissions which were introduced as a substitute for ozone-depleting chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) in the 1990s (Mexchem Fluor, Inc. v. EPA, No. 15-1328). The court’s decision raises important questions about which alternative pathways EPA can use to regulate these substances, including to meet its international obligations should it join the Kigali Amendment to the Montreal Protocol.

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Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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.

In June, the Sabin Center, in collaboration with APKS, officially launched a new version of the climate litigation charts at http://climatecasechart.com. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 100.

FEATURED CASES

Federal Courts Upheld “Zero Emission Credits” for Nuclear Plants in Illinois and New York

Federal district courts in New York and Illinois upheld “zero emission credit” (ZEC) programs intended to subsidize old nuclear power plants in the two states. New York’s ZEC program is one component of the Clean Energy Standard adopted by the New York Public Service Commission. Illinois’s ZEC program was created by the Future Energy Jobs Act, which granted ZECs to qualifying facilities, which the Illinois court noted were “likely to be two nuclear power plants owned by Exelon in Illinois.” Plaintiffs challenging the New York program were electric generators and trade groups of electric generators; plaintiffs in the Illinois challenge were electric generators and their trade groups in one case and utility customers in a second case. Plaintiffs in both cases unsuccessfully argued that the ZEC programs were unconstitutional because they were preempted and violated the dormant Commerce Clause. The utility customers also made an equal protection claim. In the Illinois case, the court concluded that the plaintiffs largely lacked Article III standing for the preemption and dormant Commerce Clause claims but proceeded to address the merits. Both the Illinois and the New York federal courts agreed, though their reasoning was slightly different, that they did not have equity jurisdiction over the plaintiffs’ claims that the Federal Power Act (FPA)—which grants the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over the interstate wholesale electricity market—preempted the state programs. The courts concluded that Congress intended to foreclose a private right of action, with both courts citing the FPA’s provisions for a detailed remedial scheme before FERC and the Public Utility Regulatory Policies Act’s addition to the FPA of a private cause of action for a narrow scope of challenges to state action. The Illinois court also found that the relief sought by the plaintiffs would require the court to apply “judicially unadministratable” standards, but the New York court did not find this to be a barrier to equitable jurisdiction. Both courts also held that the FPA preemption claims would, in any event, fail on the merits. The courts—looking to the Supreme Court’s 2016 opinion in Hughes v. Talen Energy Marketing, LLC—said the states’ ZEC programs did not impermissibly “tether” ZEC payments to participation in the wholesale capacity auctions and did not directly affect wholesale rates. The ZEC programs therefore avoided field preemption. The courts also found that the plaintiffs did not state a plausible claim for conflict preemption because the ZEC programs did not run afoul of FERC’s goal of competitive and efficient energy markets. The New York court ruled that the plaintiffs did not have a cause of action to bring their dormant Commerce Clause claim because their alleged injuries did not fall within the zone of interests protected by the dormant Commerce Clause—i.e., the economic interests of out-of-state entities. The New York court also held that the plaintiffs failed to state a dormant Commerce Clause claim because New York State acted as a market participant when it created ZECs. The Illinois court held that the plaintiffs did not have Article III standing to make their dormant Commerce Clause claim, and also concluded that no dormant Commerce Clause claim was stated because Illinois’s statute did not preclude out-of-state generators from submitting bids for ZECs and was therefore not facially discriminatory, and there were no plausible allegations that the procurement process would be facially discriminatory. The Illinois court also concluded there was a substantial possibility that the implementation of the statute would be non-discriminatory in effect, rejected the argument that the statute had a discriminatory purpose, and said the state-created ZECs only indirectly burdened other generators’ ability to participate in the wholesale market. The Illinois court also dismissed the utility customer plaintiffs’ equal protection claim, finding that the ZEC program had rational basis grounded in the legislative goals of increasing reliance on zero-emission energy. The generator plaintiffs in the Illinois case filed a notice of appeal on July 17. Coalition for Competitive Electricity v. Zibelman, No. 1:16-cv-08164-VEC (S.D.N.Y. July 25, 2017; Village of Old Mill Creek v. Star, Nos. 1:17-cv-01164 and 1:17-cv-01163 (N.D. Ill. notice of appeal July 17, 2017; memorandum opinion and order July 14, 2017).

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By Susan Biniaz (Susan Biniaz is a former Deputy Legal Adviser at the U.S. Department of State, as well as the Department’s lead climate lawyer from 1989 through early 2017. She is currently a Senior Fellow at the UN Foundation and on the adjunct faculty at Columbia and Yale Law Schools.)

On August 4^th, the U.S. Mission to the United Nations notified the UN Secretary-General that it “intends to exercise its right to withdraw” from the Paris Agreement. The U.S. State Department simultaneously issued a media note containing additional details. Several questions have arisen in connection with the communication, the answers to which are found below.

Is the U.S. communication an official notice of withdrawal?

No. The communication makes clear that it is only a notice of “intent” to withdraw. It expressly provides that a formal written notification of withdrawal will be submitted once the United States is eligible to do so. (It will be eligible to do so as of November 4, 2019, i.e., three years after the Agreement entered into force for the United States.)

Does the communication have any legal effect?

No. Whatever its effect, it is not legal. It does not itself trigger the withdrawal process under the Agreement.

Was the United States required to send this type of notice of “intent” to withdraw?

No. There is no requirement, under the Paris Agreement or otherwise, to give advance notice of withdrawing.

What then was the purpose of the communication?

The communication states that its purpose is “transparency” with respect to Parties to the Agreement.

Does the communication leave the door open to remaining a Party to the Agreement?

As a legal matter, yes. As noted above, it is not a formal notice of withdrawal.

As a policy matter, it appears to leave the door open as well. The communication states that the United States will submit a formal notification of withdrawal, unless it “identifies suitable terms for reengagement.” The media note reiterates this point, stating that the President, as he himself has indicated, is “open to re-engaging in the Paris Agreement if the United States can identify terms that are more favorable to it, its businesses, its workers, its people, and its taxpayers.”

Is there any indication of what the “suitable terms” or “more favorable” terms might be?

It is unclear from the communication and media note what the Administration would consider suitable/more favorable terms for reengagement. It is also unclear whether such terms would require the agreement of other Parties to the Agreement or could be secured in other ways.

In theory, there are at least four ways in which the United States could establish different terms of participation:

• At one end of the spectrum, the United States could seek to renegotiate aspects of the Agreement itself. If so, it has given no indication of which provisions it has in mind. Further, several key countries have seemingly made clear (through repeated statements that the Agreement is “irreversible”) that this is not an option for them.
• At the other end of the spectrum, it could modify its “nationally determined contribution,” i.e., the U.S. emissions target. There would be no need to get the agreement of other Parties to do so. The Administration’s criticisms of the Agreement have largely focused, albeit indirectly, on the current U.S. emissions target; the media note also appears to be addressing this issue when it refers to the Administration’s support for a “climate policy that lowers emissions while promoting economic growth and ensuring energy security” and its intent to continue “to reduce our greenhouse gas emissions through innovation and technology breakthroughs….”
• A third option would be for the United States to seek “suitable” or “more favorable” terms within the Paris-related guidelines that are currently being negotiated. The Agreement left certain details for further elaboration, such as with respect to the transparency framework for reporting and review. Such guidelines, which are due to be completed in 2018, could conceivably – perhaps in combination with a new U.S. emissions target – form the basis for terms that are acceptable to the Administration. It is perhaps for this reason that the media note states that the United States will continue to participate in the Paris-related negotiations, “to protect U.S. interests and ensure all future policy options remain open to the administration.”
• The United States might also seek improved terms outside the framework of the Agreement, such as through bilateral or multilateral energy-related cooperation.

Does the communication break any new ground?

The core aspects of the communication, i.e., that the United States “intends” to withdraw “unless” improved terms of participation are found, appear to be consistent with the President’s original announcement regarding withdrawal, as well as his statement in Paris alongside President Macron of France.

One seemingly new feature is the communication’s reference to Article 28.1 of the Agreement as the provision under which the United States would intend to withdraw in the future.   The President’s original announcement suggested (but did not say explicitly) that the United States would be withdrawing only from the Paris Agreement, not also from the Framework Convention on Climate Change (which the United States joined in 1992). Withdrawal from the Convention would have accelerated withdrawal from the Paris Agreement by a few years, but would have been perceived as an even more dramatic walk-back from international climate engagement. This communication, by referring to Article 28.1 (instead of Article 28.3) makes clear that the intent is to withdraw from Paris only.

In addition, the media note makes clearer than did previous Administration statements that the United States will continue participating in the UNFCCC process, including the Paris-related negotiations.

Why was the notification sent to the UN Secretary-General, as opposed to the Secretariat of the UNFCCC?

Under the terms of the Paris Agreement, notifications regarding withdrawal are to be sent to the Depositary of the Agreement, which is the UN Secretary-General. (The Depositary also receives instruments of ratification, approval, etc., and maintains the official record of which States are Parties.)

In sum, the purpose of the communication, if there is one beyond “transparency,” remains unclear. It is not legally necessary to preview with the Depositary a future withdrawal, and the notice has no legal effect. The content largely tracks past Presidential statements concerning the intent to withdraw coupled with the possibility of “re-engaging,” and it does not offer any specifics as to which “suitable” or “more favorable” terms the Administration seeks. At the same time, it clarifies that the intent to withdraw applies to the Paris Agreement only and that the United States will continue to participate in Paris-related negotiations.

By Nadra Rahman and Jessica Wentz

Federal climate regulations are currently under attack, in part due to the perception that these regulations will impose excessive costs on regulated industries and society as a whole. But according to federal projections, the benefits of these regulations would significantly outweigh the costs. In a new paper, we added up the projected economic impacts of major federal rules aimed at reducing greenhouse gas emissions and found that the net benefits could reach nearly $300 billion per year by 2030. The rules will also generate a variety of non-monetized benefits, such as improved public health outcomes and the creation of jobs, as well as climate mitigation benefits that will extend well beyond 2030.

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By Claudia Fernandez (2017 Summer Intern)

Last week, Sabin Center for Climate Change Law staff and interns toured the Javits Center’s 6.5-acre green roof (shown left), which was installed in 2013 as part of a $463 million renovation. The second-largest green infrastructure project in the U.S., the roof was intended to make the Javits Center more sustainable and improve its environmental footprint. According to President and CEO Alan Steel, while the Javits Center’s primary goal is “to generate new business and create employment opportunities” in New York City, it must do so “sustainably,” achieving its “primary goal while reducing the impact of the building and its operations on the community’s health and environment.” The green roof is a key part of this. It has delivered many benefits, both for the building and the surrounding community, particularly in terms of climate change mitigation and adaption.

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By Peter Ross

For decades, federal energy and water efficiency standards have demonstrably saved consumers money, reduced pollution, and increased grid reliability.  The U.S. Department of Energy (“DOE”) periodically reviews standards and test procedures for more than 60 products, representing about 90% of home energy use, 60% of commercial building energy use, and 30% of industrial energy use.  Due in part to their incremental nature, these standards have been relatively uncontroversial and often result from  lengthy stakeholder negotiations between manufacturers seeking regulatory certainty and environmental advocates seeking greater efficiency.

In recent months, however, these standards have become the subject of increased litigation.  In June, advocacy groups and a coalition of State Attorneys General sued the DOE for refusing to publish several all-but-finished efficiency standards in the Federal Register.  When DOE delayed the effective date of an energy standard for ceiling fans, a similar group of state actors petitioned the Second Circuit Court of Appeals to review the agency’s action.  To protect their states’ interests in energy efficiency, yet another coalition of State Attorneys General intervened in an industry group lawsuit against the DOE challenging certain federal lightbulb efficiency standards.

While DOE has acceded to some of the states’ demands, allowing the ceiling fan rule to go through with the original compliance date along with a standard for walk-in coolers, Washington’s commitment to increased energy efficiency remains shaky.  In addition to dragging its feet in implementing certain standards, the Trump Administration has proposed budget cuts to the parts of DOE responsible for administering the appliance and equipment standards program.  States thus should prepare to utilize all policy tools at their disposal to promote energy efficiency during the next four years.

To that end, a new working paper, Appliance and Equipment Efficiency Standards: A Roadmap for State and Local Action, examines how the Energy Policy and Conversation Act (“EPCA”), and the DOE regulations promulgated thereunder, place limits on the ability of states and cities to outlaw the use of inefficient appliances and equipment.  It surveys existing state efficiency laws that cover products beyond federal jurisdiction, and discusses several steps states can take to advance appliance and equipment efficiency including: (i) seeking EPCA waivers from DOE to create and enforce statewide standards for federally covered products (and, if necessary, litigating the rejection of any such waiver petition); (ii) regulating non-federally covered products such as computers; (iii) encouraging the use of more efficient appliances and equipment through local building codes for new construction; and (iv) revising procurement laws to require the use of products that exceed federal efficiency standards.

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By Michael Burger

Yesterday, three local governments in California (San Mateo County, Marin County and the City of Imperial Beach) filed potentially groundbreaking climate change lawsuits in California state courts, each one charging a group of 20 fossil fuel companies with liability for public nuisance, failure to warn, design defect, private nuisance, negligence, and trespass. (The complaints will be available in an updated version of this post as soon as we have them available.) This type of state common law climate litigation has been a long time coming, and these cases may well represent the first of a slew of similar cases nationwide. Here, I summarize several interesting aspects of the complaints, and offer some first blush thoughts on both the legal hurdles they might face and the potential outcomes they might produce.

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