by Justin Gundlach

As a spate of disasters in the past few months has made painfully clear to people in Texas, Florida, Louisiana, Puerto Rico, and northern California, designing the electric grid to be reliable at all times requires anticipating and preparing for destructive hazards that can interrupt its operation. That is, reliability requires resilience, the capacity to withstand or bounce back. This has long been true, but is becoming increasingly important to address as climate change amplifies coastal storms, downpours, and wildfires, all of which can disrupt the grid’s operation and thereby impede the functioning of critical infrastructure like communications systems and medical facilities when they are needed most.

I described in a September 13th blog post how utility commissions in California and New York have led the way in pressing retail utilities to assess electric grid vulnerabilities to climate-driven hazards. That post mentioned the term “resilience” but it did not describe the effort currently underway to specify how wholesale electricity markets should compensate investments that improve the grid’s resilience to diverse hazards, ranging from cyber attacks to coastal storms. Below the jump, this post discusses how the Trump Administration is putting that effort at risk and why it is so important for those steering “resilience” from concept to policy to keep the process as separate from the Administration’s imprudent deregulatory agenda as possible.

Read more »

By Romany Webb

Power lines damaged by Hurricane Maria

Nearly three weeks after being hit by Hurricane Maria, 90 percent of Puerto Rico remains without electricity. While the island’s nine key generating facilities were not seriously damaged by Maria, they cannot be used, as the infrastructure required to transfer electricity to customers no longer exists. The Puerto Rico Electric Power Authority (PREPA) estimates that Maria destroyed eighty percent of the island’s electricity transmission infrastructure and nearly 100 percent of its distribution infrastructure. Rebuilding this infrastructure will be a major undertaking, particularly since new transmission lines will need to be constructed through Puerto Rico’s mountainous interior, to connect generating facilities on its southern coast with population centers in the north. According to some officials, it could be up to six months before the system is rebuilt, and electricity is restored.

With pressure mounting for immediate action, on September 28, the Army Corps of Engineers was put in charge of rebuilding Puerto Rico’s electric grid. Rebuilding will be funded primarily, if not entirely, with federal money appropriated by Congress. As my colleague, Justin Gundlach, recently reported, past appropriations acts have been interpreted as requiring federal money to be used solely to rebuild what was lost (i.e., without any improvements). That doesn’t make a lot of sense in the age of climate change, however. With storms expected to become more frequent and severe, we must “build back better,” so as to increase resiliency to future disasters. Puerto Rico’s electric system, for example, should be rebuilt in a way that reduces reliance on centralized generation necessitating long-distance transmission of electricity. In doing so, the Commonwealth can learn from the experiences of other islands, such as Cuba, which has increased its disaster resiliency by making greater use of distributed energy resources (DERs).

Read more »

By Dena Adler

Former EPA Administrator Gina McCarthy delivered the third David Sive Memorial Lecture on Environmental Law at Columbia Law School on Thursday, September 28. Sharing her thoughts on “The Present and Future of the EPA,” she sharply critiqued the actions of Scott Pruitt’s EPA as illegal and without scientific basis or direction, while finding hope in the progress spurred by investment, innovation, and democratic participation.

“This is the first administration in history at EPA where the administrator has absolutely no vision moving forward that isn’t about looking in the rearview mirror at the past eight years and rolling back every single thing that happened, without any discriminating analysis about if any of them were any good,” McCarthy said. As of October 2nd, the Sabin Center’s Climate Deregulation Tracker has already identified 77 steps taken by the Trump administration and Congress to scale back or wholly eliminate federal climate mitigation and adaptation measures. Read more »

October 2017 Updates to the Climate Case Charts

Posted on October 3rd, 2017 by Tiffany Challe

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.



Tenth Circuit Said Analysis of Coal Leases’ Greenhouse Gas Impact Was Arbitrary and Capricious

The Tenth Circuit Court of Appeals ruled that the U.S. Bureau of Land Management (BLM) acted arbitrarily and capriciously when it concluded that issuance of four coal leases in Wyoming’s Powder River Basin would not result in higher national greenhouse gas emissions than declining to issue the leases. The leases extended the lives of two existing surface mines that account for approximately 19.7% of the U.S.’s annual domestic coal production. The Tenth Circuit rejected the argument that the environmental groups challenging the leases lacked standing, concluding that the plaintiffs were not required to assert a climate-related injury to challenge BLM’s analysis of climate impacts. The Tenth Circuit also said the plaintiffs retained their standing on appeal even though they had dropped their challenges regarding the adequacy of BLM’s consideration of the local environmental impacts that formed the basis for their alleged injuries. On the merits, the court held that BLM’s reliance on a “perfect substitution assumption”—that the same amount of coal would be sourced from elsewhere even if BLM did not issue the leases—to compare the greenhouse gas emissions for the no-action alternative and issuance of the leases lacked support in the record. The court also said, however, that “[e]ven if we could conclude that the agency had enough data before it to choose between the preferred and no action alternatives, we would still conclude this perfect substitution assumption arbitrary and capricious because the assumption itself is irrational (i.e., contrary to basic supply and demand principles).” The Tenth Circuit rejected, however, the plaintiffs’ contention that BLM’s failure to use “readily available” modeling tools to determine climate impact was arbitrary and capricious. In rejecting BLM’s use of the perfect substitution assumption, the Tenth Circuit distinguished the case from the Supreme Court’s decision in Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983), in which the Court deferred to the Nuclear Regulatory Commission (NRC) in a matter regarding nuclear waste storage, in part because the matter was within NRC’s expertise and at the “frontiers of science.” The Tenth Circuit said BLM was not owed deference in this case because climate science was not a “scientific frontier”; the Tenth Circuit also noted that BLM had acknowledged that climate change was “a scientifically verified reality.” In a concurring opinion, Judge Baldock indicated that the court’s “assertion that climate science is settled science is, in my view, both unnecessary to this appeal and questionable as a factual matter.” WildEarth Guardians v. U.S. Bureau of Land Management, No. 15-8109 (10th Cir. Sept. 15, 2017).

Read more »

From Haiyan to Harvey: What the U.S. Can Learn from the Philippine Experience

Posted on September 24th, 2017 by Justin Gundlach

By Richmund Sta. Lucia

In a span of just three weeks, two hurricanes hit the U.S. mainland causing severe impacts on human life and property. On August 25, Hurricane Harvey devastated Texas with unprecedented flooding and claimed a current total of 82 lives. The death toll from Hurricane Irma, which ravaged Florida last week, has reached 26. Overall, these severe storms cost the U.S. between $150 billion and $200 billion in damage to property and lost productivity; an economist predicts these hurricanes could slow U.S. economic growth by 1% this year. As if those present debacles were not enough, Hurricane Maria caused enormous damage in the Caribbean.

The economic and social costs brought about by these massive weather disruptions again highlight the relevance of climate change nowadays. Whether or not politicians view climate change as undeniable, reality will not detract from the science pointing to it as a likely harbinger of future (and potentially more catastrophic) storms. Intuitively, Harvey, Irma and Maria bring to mind a super-storm in the past which boasted the strongest winds ever recorded to have made landfall, at least up until now: Typhoon Haiyan in the Philippines.

Read more »

On September 14, the Arizona Court of Appeals, Division II, ruled that a trial court decision to release climate scientists’ emails had improperly ignored an Arizona statutory protection for university records.  In this case, the Energy & Environment Legal Institute (“E&E Legal”) has been attempting to use open records laws to obtain a 13 year span of emails from two University of Arizona climate scientists. This ruling returns the case to the trial court for a consideration of whether the statutory protection applies to the emails sought here.

State and federal open records laws promote government accountability by allowing citizens to request copies of administrative records, but these powerful tools can also be misused “to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.”  Overly intrusive open records requests, particularly for emails, can discourage the candid exchange of ideas (including “devil’s advocate” arguments and “what if” debates), and provide opportunities for hostile actors to take phrases, including scientific jargon, out of context in order to mislead and confuse the public.  Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” Read more »

By Dena Adler

A Texas National Guardsmen carries a resident through floodwaters left by Hurricane Harvey. Army National Guard photo by Lt. Zachary West.

It has been widely reported that Hurricanes Harvey and Irma inundated industrial plants, wastewater treatment plants, and Superfund sites, causing a stew of toxic chemicals and sewage to leak into floodwaters and releasing almost 1 million pounds of seven deadly pollutants into the air. The Union of Concerned Scientists, for instance, has identified more than 650 energy and industrial facilities potentially exposed to Hurricane Harvey’s floodwaters. In the days following Hurricane Harvey, The New York Times reported at least 14 toxic waste sites were flooded or damaged and roughly 100 spills of hazardous substances were phoned in to the National Response Center from Southeast Texas.  Liquid mercury was found washing ashore residential riverfront property east of Houston and the AP tracked 3 potentially contaminated leaks from one of Texas’ dirtiest Superfund toxic waste sites. Though Florida may not have the same chemical epicenter as Houston, its nuclear reactors, mines, and low-lying Superfund sites could wreak havoc if flooded, and Irma resulted in more than 28 million gallons of sewage gushing into streets, homes, and waterways in 22 counties.

In addition to posing a public health nightmare, these contaminated floodwaters and toxic air emissions could indicate potential environmental statutory violations under the Clean Water Act (CWA), the Oil Pollution Act of 1990 (OPA), the Resource Conservation & Recovery Act (RCRA), the Clean Air Act (CAA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). While a comprehensive review of liability is beyond the scope of this blog, below, I discuss several of the legal requirements possibly violated which could usher in a wave of climate change-related lawsuits. Notably, this litigation dodges the sticky issue of climate change attribution – facilities and municipalities are liable for failing to undertake adequate preparatory, safety, and control measures without needing to prove a link between global climate change, the particular storm, and actual harms suffered. Read more »

By Michael Burger

This past July, three local governments in California filed three different lawsuits in California state courts, claiming that the extraction, promotion, and sale of fossil fuels by a group of oil, gas, and coal companies constituted torts under a number of different state common law theories. (I previously discussed the lawsuits here.) In August, some of the defendants in one of the cases filed a notice of removal, seeking to transfer the case from state to federal court, arguing that the federal court has original jurisdiction. Among the seven rationales defendants offer, one is that the local governments’ claims, though styled as state common law claims, are necessarily federal common law claims. This argument is important beyond the outcome of the removal notice – if defendants are right, then similar lawsuits that seek to obtain damages from climate change impacts, whether from slow onset changes like sea level rise or extreme events like Hurricanes Harvey and Irma, would necessarily become federal cases. And if that’s right, then it is possible all of them could be dismissed out of hand, as the U.S. Supreme Court has held that the Clean Air Act has displaced federal common law suits against greenhouse gas emitters. But I don’t think it is right.

Read more »

Keeping the Lights on These Days Means Planning for Climate Change

Posted on September 13th, 2017 by Justin Gundlach

by Justin Gundlach

Due to damage from Hurricane Irma, the lights are out in much of southern Florida—an inconvenience to many and fatal to some. Meanwhile, in Texas, power still has not been restored everywhere in the aftermath of Hurricane Harvey. As the Wall Street Journal headline says of both states, “Power Outage Pushes Limits.” Utilities and utility commissions in those states and others must learn the lesson these storms have to teach. It is one that New York City and the State’s Public Service Commission (PSC) learned following Hurricane Sandy: as the climate changes, electricity grids designed to deal with historical weather and temperature patterns will become less resilient and, consequently, less reliable.

The Sabin Center for Climate Change Law led the effort to guide New York to this lesson by intervening in a proceeding before the New York PSC after Sandy had wreaked havoc on downstate electricity distribution grids. Consolidated Edison, the utility company responsible for New York City’s grid, had conducted a narrowly focused assessment of its vulnerabilities to climate risks, and as part of its rate request sought funding for routine triennial operations, maintenance, and investment, and for certain measures to protect against the next Sandy-like event. The Sabin Center argued that ConEd’s assessment was inadequate and proposed to the PSC that electricity ratepayers’ money should also be allocated to (1) a thorough Climate Change Vulnerability Assessment of ConEd’s facilities, and (2) efforts to adapt the grid to the circumstances revealed by the vulnerability assessment’s findings. The PSC endorsed this proposal—not only for ConEd but for utilities statewide. After some delay, ConEd’s thorough vulnerability assessment is underway, and is slated for completion in late 2019.

In a rational world, New York’s experience of flooding amid Superstorm Sandy, complete with an exploding substation and long power outage, would have prompted other state commissions to call on their utilities to examine whether they would be able to keep the lights on amid storms—and other weather events, like heat waves—amplified by climate change. But few have done so (California is a notable exception). Indeed, in May 2016, Florida Power & Light’s (FPL) parent company rejected shareholder calls for an assessment of FPL’s vulnerabilities to sea level rise and related hazards, such as larger storm surges. Consequently, while FPL has buried power lines and replaced many of its wooden utility poles with concrete ones, it remains exposed to unexamined climate-driven hazards. In this, it is not unusual. Few utilities—in Florida, Texas, or elsewhere—have examined their vulnerabilities to climate-driven hazards, much less taken steps to reduce those vulnerabilities. Of course, blindness to vulnerabilities only lasts until dire moments, such as Hurricanes Harvey and Irma, reveal them, too late to mitigate the damage.

Below the jump, I describe the rudiments of climate change vulnerability assessments and adaptation planning, and offer suggestions for how commissions and advocates can push utilities in their states to follow the trail blazed by New York and California.

Read more »

Dena Adler Joins the Sabin Center as a New Climate Law Fellow

Posted on September 12th, 2017 by Tiffany Challe

Last week, Dena joined the Sabin Center as our 2017-2019 Climate Law Fellow. Dena’s work at the Sabin Center will focus on developing legal and regulatory tools to advance the efforts of governments and private actors to adapt to a changing climate and to mitigate the effects of climate change. She is particularly interested in cultivating solutions that can work cohesively across jurisdictional scales.

Before starting at the Sabin Center, Dena completed a J.D. at Yale Law School and a Masters of Environmental Management at Yale School of Forestry & Environmental Studies. While at Yale, Dena worked with the Yale Climate Change Dialogue and City of Paris to expand global action on climate change by designing legal mechanisms that could link climate change action commitments from cities, regional governments, and corporate actors to the international treaty regime. She has previously completed legal internships at the Environmental Defense Fund, Earthjustice, and the White House Council on Environmental Quality.

Dena first became passionate about advancing climate change policy as an undergraduate conducting aerial and backcountry surveys to measure the effects of climate change on vulnerable species in the Greater Yellowstone Ecosystem. As she photo-documented the unprecedented outbreak of mountain pine beetle devastating the region due to warming temperatures, she grew increasingly alarmed by the impacts of climate change on the most remote and wild corners of our planet. Witnessing how that data helped support litigation to relist the grizzly bear to the Endangered Species Act, she began a joint J.D./M.E.M. degree at Yale to better understand how to advance legal and policy solutions that mitigate the extent and impacts of climate change.

You can reach Dena at


LexisNexis Environmental Law and Climate Change Community 2011 Top 50 Blogs


This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

Climate Law Links


Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.