Global Perspectives on a Global Pact for the Environment


Posted on September 20th, 2018 by Tiffany Challe

Edited by Michael Burger (Sabin Center for Climate Change Law), Teresa Parejo (UN Sustainable Development Solutions Network) and Lisa Sachs (Columbia Center on Sustainable Investment).

With research and administrative support from Nathan Lobel (Columbia Center on Sustainable Investment).

On May 10, 2018, the United Nations General Assembly (UNGA) adopted Resolution 72/277 (“Toward a Global Pact for the Environment”), which calls for the Secretary General to submit “a technical and evidence-based report” on “possible gaps in international environmental law and environment-related instruments” at the 73rd session of the UNGA. The resolution also establishes an “ad hoc open-ended working group… to consider the report and discuss possible options to address possible gaps.”

As the UNGA convenes this week, we are bringing together independent thought leaders and legal scholars from around the world to weigh in on what, if anything, the process initiated by UNGA Resolution 72/277 might usefully accomplish; and what the United Nations agencies, national governments and civil society stakeholders engaged in the process could usefully consider. Together, these perspectives identify a number of existing issues that merit attention and, if heeded, might inform negotiations on the future of international environmental governance. 

  • Marisol Anglés HernándezResearcher, Institute for Legal Research, National Autonomous University of Mexico
  • Sumudu AtapattuDirector of Research Centers and Senior Lecturer, University of Wisconsin Law Schoo
  • Lisa BenjaminVisiting Assistant Professor of Law, Pennsylvania State University
  • Susan BiniazFormer Deputy Legal Advisor, US State Department; Senior Fellow, Jackson Institute for Global Affairs at Yale University; Associate Researcher, IDDRI; Senior Advisor, Center for Climate and Energy Solutions
  • Daniel BodanskyFoundation Professor of Law, Arizona State University Sandra Day O’Connor College of Law
  • Ben BoerDistinguished Professor, Research Institute of Environmental Law, Wuhan University; Emeritus Professor, University of Sydney
  • David R. BoydSpecial Rapporteur on Human Rights and the Environment, United Nations Human Rights Council
  • Maxine BurkettProfessor, University of Hawaii at Manoa William S. Richard School of Law
  • Bharat H. DesaiProfessor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Jawaharlal Nehru University
  • Fabrizio FracchiaProfessor, Department of Law, Bocconi University
  • Pilar García PachónDirector, Department of Environmental Law, Externado University, Colombia
  • Michael B. GerrardProfessor, Columbia Law School
  • John H. KnoxHenry C. Lauerman Professor of International Law, Wake Forest University School of Law
  • Pilar Moraga SariegoProfessor, University of Chile
  • Damilola S. OlawuyiAssociate Professor of Law, Hamid Bin Khalifa University College of Law and Public Policy
  • Nilufer OralFaculty of Law, Istanbul Bilgi University; Member, United Nations International Law Commission; Member, IUCN World Commission on Environmental Law
  • Luciano Parejo AlfonsoAdministrative Law Professor Emeritus, Carlos III de Madrid University
  • Jorge E. ViñualesProfessor of Law and Environmental Policy, University of Cambridge
  • Alex L. WangProfessor of Law, UCLA School of Law

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By Jessica Wentz

In July, the U.S. Fish and Wildlife Service (FWS) and NOAA Marine Fisheries (NMFS) issued a sweeping proposal to amend key provisions of the Endangered Species Act (ESA), including provisions pertaining to listing decisions, critical habitat designations, and interagency consultations. Much has already been written about how this proposal would weaken ESA protections, particularly for threatened species, and make it easier for projects to gain approvals despite potentially adverse impacts on endangered and threatened species. This blog takes a closer look at how the proposed amendments could affect ESA management decisions for species that are imperiled by climate change.

Generally speaking, any weakening of ESA protections could undermine efforts to maintain biodiversity and ensure species survival in the context of rapidly changing climatic and biological conditions. Many scientists believe that a mass extinction event is already underway as a result of human activities (the “Holocene extinction”) and that climate change is and will be a significant driver of extinctions.  In this context, new tools and approaches are needed to improve protections for species that face an existential threat due to climate change. FWS and NMFS could also benefit from clear guidance on how to account for climate change-related threats in ESA management decisions.

The proposed amendments do the opposite. They do introduce vague standards which appear to be aimed at limiting the extent to which observed and projected climate change impacts can serve as a basis for listing decisions, critical habitat designations, and interagency consultations. (This purpose is not explicit, but it is the most likely explanation, in light of the current administration’s deregulatory efforts.) The four provisions are discussed below.

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Six Important Points About BLM’s Revised Methane Waste Prevention Rule


Posted on September 18th, 2018 by Romany Webb
 3 comments  

By Romany Webb

On Tuesday, September 18, the Department of the Interior’s Bureau of Land Management (BLM) finalized changes to its so-called Methane Waste Prevention Rule (“Rule”). The Rule, which was adopted in November 2016, aimed to prevent the loss of natural gas through venting, flaring, and leaks on public lands. BLM estimated that, as a result of the Rule, oil and natural gas producers operating on public lands would capture an additional 41 billion cubic feet of gas each year, enough to supply approximately 740,000 households. The Rule would also substantially reduce emissions of methane – i.e., the primary component of natural gas – which would fall by up to 180,000 tons per year.

Despite these benefits, BLM has announced that it will repeal key provisions of the Rule and reinstate pre-2016 regulations (known as “NTL-4A”), which were first developed in the 1970s. Here are six important things to know about the announcement:

1. The rule change will affect a large number of oil and natural gas operations. The 2016 Rule applied to all oil and natural gas operations – both new and existing – on public and tribal lands. In this context, the term “public lands” refers to areas of land that are owned by the federal government, and managed by BLM. Those areas cover approximately 245 million surface acres and 700 million acres of sub-surface mineral estate. Of that, roughly 26 million acres are currently under lease to oil and natural gas developers, who are currently operating over 94,000 wells. Those wells account for a sizable share of total oil and natural gas production in the U.S. In Fiscal Year 2016 (the latest year for which data is available), onshore energy production on BLM-managed land accounted for seven percent of all oil, and 10 percent of all natural gas, produced domestically.

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By Romany Webb

On Tuesday, September 11, EPA published proposed revisions to its New Source Performance Standards (2016 standards) for new and modified sources in the oil and natural gas sector. The standards, which were finalized in June 2016, formed a central plank of the Obama administration’s strategy for reducing methane emissions. EPA estimated that, as originally adopted, the 2016 standards would reduce methane emissions from oil and natural gas operations by 510,000 short tons in 2025. The reductions were to be achieved by requiring operators to, among other things, reduce natural gas venting and flaring and accelerate the detection and repair of natural gas leaks. EPA is now proposing to make various changes to those requirements. Here are five important things to know about the proposed changes:

1. EPA is proposing significant changes to the leak detection requirements in the 2016 standard. Natural gas is comprised primarily of methane, a highly potent greenhouse gas, which is released through intentional venting and accidental leaks. Seeking to minimize releases, in the 2016 standards, EPA required oil and natural gas operators to regularly survey their facilities for leaks. That requirement was strongly opposed by industry, which argued that that the surveys would be costly, and deliver only modest benefits. In response to those concerns, EPA is now proposing to change the survey requirements for certain system components, to allow longer intervals between inspections. The proposed changes are shown in the table below.

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This week, Ama Francis joins the Sabin Center as the 2018-2020 Climate Law Fellow. Ama’s work will focus on developing legal solutions to disaster displacement and climate migration, and on analyzing and supporting the implementation of adaptive measures in small islands and least developed countries.

Ama graduated from Yale Law School in 2018 where she was an active member of Yale’s Environmental Justice Clinic, a student director of Immigration Legal Services, founder of Clarity & Community, and led New Directions in Environmental Law 2018. She has interned at Earthjustice, Islands First, and Dominica’s Ministry of Health and Environment. Ama also represented Dominica at COP22. A native Dominican, Ama is a member of Phi Beta Kappa and graduated from Harvard University in 2011.

You can reach Ama at: arf2167@columbia.edu

 

In other related news, Romany Webb, our 2016-2018 Climate Law Fellow, will remain on board at the Sabin Center as a Senior Fellow, where she will continue to research legal and policy tools to support climate change mitigation, with a particular focus on the energy sector. Much of Romany’s research explores the regulation of greenhouse gas emissions from fossil fuel energy development, particularly oil and gas production, under U.S. federal and state law. Romany also researches federal and state approaches to supporting clean energy development and carbon capture and sequestration. In addition to her scholarship, Romany maintains the Sabin Center’s Silencing Science Tracker, which records government attempts to restrict or prevent scientific research, education, or discussion.

You can reach Romany at: rwebb@law.columbia.edu

September 2018 Updates to the Climate Case Charts


Posted on September 6th, 2018 by Romany Webb

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 # 113.

FEATURED CASE

Texas Federal Court Allowed Securities Fraud Suit to Proceed Against Exxon

The federal district court for the Northern District of Texas found that investors in Exxon Mobil Corporation (Exxon) had sufficiently pleaded claims that Exxon and certain Exxon officials made material misstatements concerning the company’s use of proxy costs for carbon in business and investment decisions. Exxon argued that the investors’ allegations that it stated a different proxy cost in public statements than it used in internal calculations were based on the investors’ confusing of two separate proxy costs—one for carbon and one for greenhouse gases—as the same proxy cost. The court concluded, however, that “[w]hether the two differing proxy cost values represent two different costs or the same cost with different values applied internally than publicly purported to be applied is a factual dispute and cannot be determined at this motion to dismiss stage.” The court also noted that the complaint alleged that Exxon had indicated to investors that it used only one proxy cost across all business units. The court also found that the plaintiffs had alleged sufficient facts to plead other material misstatements related to the condition of certain specific businesses. The court further ruled that the plaintiffs had adequately pleaded loss causation and had met the heightened scienter standard for all defendants except for Exxon’s vice president of investor relations. The allegations supporting the court’s finding that the scienter standard was met included allegations that Exxon’s management committee regularly received detailed information on carbon-related risks and proxy costs, allegations that Exxon was particularly motivated to maintain its AAA credit rating in advance of a $12 billion public debt offering, and allegations that three of the defendants signed documents filed with the Securities and Exchange Commission that allegedly contained materially misleading information. Ramirez v. Exxon Mobil Corp., No. 3:16-CV-3111 (N.D. Tex. Aug. 14, 2018).

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Joint Logo CitiesToday, the Sabin Center filed a motion on behalf of a nationwide local government coalition for leave to participate as amici curiae in the lawsuit challenging the first action undertaken by the Trump administration to roll back the greenhouse gas emission and fuel economy standards established for light duty vehicles (“clean car standards”). If the motion is granted, the petitioners will be able to file an amicus brief detailing why these standards are critical for cities and local governments to reduce emissions from the transportation sector and help avert the harmful impacts of climate change.

Members of the coalition include the U.S. Conference of Mayors (USCM), the National League of Cities (NLC), The City of New York, NY; Los Angeles, CA; Chicago, IL; King County, WA; Santa Clara County, CA; San Francisco, CA; Baltimore, MD; Oakland, CA; Minneapolis, MN; Boulder County, CO; Pittsburgh, PA; Ann Arbor, MI; West Palm Beach, FL; Santa Monica, CA; Coral Gables, FL; and Clarkston, GA.

This coalition of local governments is representative of the diverse communities affected by the proposed roll back of the clean car standards. The NLC represents over 19,000 cities and towns and USCM is the official non-partisan organization of cities with populations of 30,000 or more. The individual cities and counties that have signed onto the motion are home to more than 22 million people, and include New York, Los Angeles, and Chicago, the three largest cities in the Untied States.

“Local governments have been leaders in the fight against climate change for decades, and given the Trump administration’s denial of the problem, they have doubled down on their climate commitments,” said Michael Burger, author of the motion, executive director of the Sabin Center  and special counsel at the law school’s Environmental Law Clinic. “They’re working hard to reduce emissions from the transportation sector, but local measures can only go so far. Vehicle emission standards are the most effective tool for controlling transportation-related emissions, and local governments lack the authority to create their own standards. So the federal standards are of critical importance.”

Read Motion Here

Six Important Points about the “Affordable Clean Energy Rule”


Posted on August 21st, 2018 by Jessica Wentz

By Jessica Wentz

On Tuesday, August 21, EPA published a proposed rule to replace the Clean Power Plan. The proposal, entitled the “Affordable Clean Energy Rule,” would establish a framework for controlling CO2 emissions from existing power plants which is significantly less effective and environmentally protective than its predecessor. Here are six important things to know about the proposed rule:

1. The Proposal Sets a Very Low Bar for Emission Reductions. The Clean Air Act mandates that he performance standards established for existing sources under Section 111(d) must reflect the “best system of emissions reduction” (BSER) for the pollutant and source category being regulated. EPA is proposing to define the BSER for greenhouse gas (GHG) emissions from existing power plants as on-site, heat-rate efficiency improvements. In other words, the performance standards established for power plants would only reflect those emission reductions that can be achieved through making the existing plants more efficient – they would not reflect the much larger reductions that could be achieved by switching to cleaner energy sources and improving demand-side energy efficiency (often referred to as measures “outside the fence line” of power plants). As a result, the standards will be considerably less stringent.

The standards may also fail to ensure emissions reductions at all insofar as there may be a “rebound effect” wherein plants that implement heat-rate improvements may be called upon to run more hours, thus increasing the total amount of CO2 generated (while still complying with performance standards). EPA explicitly recognizes the potential for such a rebound effect in the proposal without providing any recommendation for mitigating the effect.

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By Dena Adler

New research from the Sabin Center for Climate Change Law and the Natural Resources Defense Council (NRDC) reveals that nearly half of states do not have regulatory or statutory requirements for sellers to disclose a property’s history of flood damages to a homebuyer. As a consequence, many homeowners may never learn their home is vulnerable to flooding until after they find their homes quite literally underwater —a risk that is increasing alongside sea level rise and more frequent and intense extreme weather events. Ironically enough this information may be readily available either from the seller or from the Federal Emergency Management Agency (FEMA), which keeps a record of flooding in all properties which receive insurance through its National Flood Insurance Program (NFIP).

Is your state one of the many that keep homebuyers in the dark about whether their new property is susceptible to flooding? The Sabin Center and NRDC reviewed all 50 states’ real estate disclosure laws to put together this interactive map identifying the robustness of each state’s requirements.

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By Susan Biniaz*

United Nations General Assembly (UNGA) Resolution 72/277,[1] at least on paper, appears to rectify one of the flaws in the original French proposal for a new international environmental agreement, or “Global Pact for the Environment.” France’s draft agreement, which did not provide a compelling link between its approach and a particular environmental problem, left many readers confused and concerned.  In contrast, the Resolution sets out a linear methodological approach.  It asks a working group to consider whether there are possible “gaps” in existing environmental law and policy and, if so, to discuss possible options for addressing them.  These might include one or more new international instruments. States should take advantage of this opportunity to consider the issues systematically and non-politically, in the hopes of focusing global effort on key areas in need of strengthened international attention.

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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.

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