by Justin Gundlach

Hurricanes like Harvey and Irma do not wipe clean the slate of prior plans, designs, and construction choices in the communities they afflict, but they do require officials, planners, and home and business owners to decide whether and how to alter those plans as they rebuild. As Governor Abbott of Texas said shortly after Harvey inundated the Houston region, recovery should involve “rebuilding in a way that will prevent a disaster like this from happening again.” (At right: a home damaged by Harvey.)

Much of the financial support for rebuilding comes from federal money directed to presidentially-declared disaster areas—like Harris County, Texas. The words Congress uses to direct that money can matter quite a lot.

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September 2017 Updates to the Climate Case Charts


Posted on September 7th, 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.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 101.

FEATURED CASE

D.C. Circuit Said FERC Needed to Provide More Information on Pipelines’ Downstream Greenhouse Gas Emissions—Or Explain Why It Couldn’t

In a split opinion, the D.C. Circuit Court of Appeals found that the environmental impact statement (EIS) prepared by the Federal Energy Regulatory Commission (FERC) for the Southeast Market Pipelines Project did not contain enough information on the greenhouse gas emissions that would result from combustion of the gas that the project would carry. When completed, the project—which comprises three interstate natural-gas pipelines in the southeastern United States—would be able to carry one billion cubic feet of natural gas per day. The D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible” because it was reasonably foreseeable that the transported gas would be burned in Florida power plants. The court distinguished its conclusion in earlier cases that FERC had no legal authority to consider the environmental effects of natural gas that would be exported from the liquefied natural gas (LNG) facilities it authorized. The D.C. Circuit said that while FERC was forbidden from relying on the environmental effects of gas exports as a justification for denying an upgrade license for an LNG facility, FERC’s authority over pipelines permitted FERC to deny a pipeline certificate on the ground that it would be too harmful to the environment. The D.C. Circuit also was not persuaded by FERC’s “practical objection” regarding the impossibility of knowing “exactly what quantity of greenhouse gases will be emitted as a result of this project being approved.” The court said FERC should have either made a quantitative estimate of downstream greenhouse gas emissions or “explained more specifically” why it could not do so. The court also indicated that the fact that downstream emissions might be offset by reductions elsewhere (from the retirement of coal-fired plants, for example) did not excuse FERC from making emissions estimates. In response to petitioner Sierra Club’s argument that FERC should use the Social Cost of Carbon to convert emissions estimates to concrete harms, the D.C. Circuit directed FERC to explain in the EIS whether it would adopt the position it took in the EIS for an LNG terminal that the Social Cost of Carbon was not useful for purposes of environmental review under the National Environmental Policy Act. In addition to its holdings regarding FERC’s greenhouse gas emissions analysis, the D.C. Circuit also determined as a threshold matter that the petitioners had standing to challenge all three segments of the pipeline project, not just the segment alleged to have caused an injury-in-fact and upheld other aspects of FERC’s environmental review. Judge Janice Rogers Brown dissented on the issue of downstream emissions, writing that in her view such emissions did not need to be considered because FERC did not control whether the greenhouse gas emissions would occur. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Aug. 22, 2017).

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Join Our Team: 2018-2020 Fellowship in Climate Change Law


Posted on September 5th, 2017 by Romany Webb

The Sabin Center for Climate Change Law is now accepting applications for a two-year fellowship to commence on September 1, 2018. The fellow will work on a wide variety of research and writing projects concerning climate change; contribute to advocacy-oriented programs and projects; and help organize conferences and seminars.

Applicants must have received a J.D., J.D. equivalent, or LL.M. within three years of beginning the fellowship. Strong academic qualifications and a background in environmental, natural resources, or energy law and policy will be expected.

For more information, please visit our website.

Climate Law Issues Related to Hurricane Harvey


Posted on August 31st, 2017 by Romany Webb

By The Sabin Center for Climate Change Law

Flooding in Houston following Harvey

The onslaught of Hurricane Harvey has provoked a widespread reckoning with the foreseeability of such extreme events in the age of climate change, and with how institutionalized shortfalls in preparedness have contributed to the unfolding disaster. Flooding from Harvey’s tremendous rainfall has led to direct impacts on critical public infrastructure, private infrastructure, and millions of homes and businesses, including in many instances complete destruction, as well as secondary or spinoff effects, such as the release of toxic pollutants into the environment from industrial facilities in the hurricane’s path. All of this raises critical questions for climate change law and policy. Here, the team of lawyers at the Sabin Center offers a brief primer on eleven key climate law issues highlighted by and likely to arise due to Hurricane Harvey:

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On August 21, the federal District Court for the District of Columbia upheld the decision by the National Oceanic and Atmospheric Administration (NOAA) to withhold NOAA climate scientists’ research documents from release to the conservative group Judicial Watch.

Judicial Watch sought to use the Freedom of Information Act (FOIA) – which allows citizens to request copies of government documents – to obtain NOAA scientists’ emails, drafts, and peer review comments regarding a June 2015 paper published in Science.  This paper, sometimes referred to as the “Hiatus Paper,” found that recent ocean surface temperature increases were greater than some other studies had indicated, and that there had been no “hiatus” in ocean warming as some have argued.  Judicial Watch’s president claimed that the requested NOAA documents “will show that the Obama administration put politics before science to advance global warming alarmism.” Read more »

        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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Eight Things Environmental Lawyers Can Do in the Age of Trump


Posted on August 17th, 2017 by Romany Webb
 2 comments  

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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August 2017 Updates to the Climate Case Charts


Posted on August 7th, 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.

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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