4 Things to Listen for in Monday’s Juliana Oral Argument


Posted on December 8th, 2017 by Romany Webb
 1 comment  

By Michael Burger

On Monday, a panel of the United States Court of Appeals for the Ninth Circuit will hear oral arguments in Juliana v. United States. The argument will be live streamed here, at 1 pm EST/10 am PST. Below, I flag four key issues that may figure (more or less) prominently in the judges’ questioning.

As everyone who reads this blog by now knows, Juliana is a climate change case brought by twenty-one individuals, all 19 or younger at the time of filing, and a plaintiff named Future Generations, as represented by scientist James Hansen, against the federal government. The plaintiffs allege that the government’s failure to address climate change in a way consistent with climate science is a violation of their constitutional rights and the public trust doctrine. On November 10, 2016, two days after Donald Trump was elected president, a federal district court judge in Oregon issued an order denying the government’s motion to dismiss the case. In her opinion, the judge found, among other things, that the youth plaintiffs have standing to sue, that the U.S. Constitution supplies a substantive due process right to a “stable climate system,” and that the public trust doctrine does apply to the federal government and may be enforced in court. The federal government then petitioned the Ninth Circuit for a writ of mandamus terminating the case, and moved to stay the district court proceeding, including the discovery process. This is an unusual move, and a writ is rarely granted. The Ninth Circuit granted the stay. Monday’s argument concerns whether the appeals court should decide the interlocutory appeal, or else send the case back to the district court.

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By Dr. Will Frank [1]

Editor’s note: Lluiya v. RWE, now pending in the courts of Germany, is a noteworthy litigation concerning the potential liability of greenhouse gas emitters for the damages caused by climate change.  The blog below presents an analysis of the case from the point of view of a lawyer who is working with the plaintiff.  We also invited defendant’s counsel to submit an analysis from their point of view.

1. First International Climate Litigation Case Based on Private Law Liability

Can big emitters of GHGs possibly be held liable for nuisance caused by climate change to private property? In an oral hearing on 13th November, the Oberlandesgericht (Civil Court of Appeals) of Hamm (Germany) answered the question of possible legal responsibility of a big GHG-emitter for climate damage/nuisance  in the affirmative.

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By Romany Webb

It’s no secret the Trump Administration opposes federal regulation of methane emissions. In his Energy Independence Executive Order, President Trump directed the Bureau of Land Management (BLM) and Environmental Protection Agency (EPA) to reconsider Obama-era regulations, aimed at reducing emissions from oil and gas production. Both BLM and EPA have sought to stay the regulations pending reconsideration, but have faced push back from the courts. In October, for example, the District Court for the Northern District of California ruled that BLM had violated the Administrative Procedure Act (APA) by staying its methane regulations. On Tuesday, December 5, BLM announced it would appeal the district court’s decision to the 9th Circuit Court of Appeals.

BLM maintains that it has authority to stay the methane regulations under section 705 of the APA, which allows an agency to “postpone the effective date of action taken by it, pending judicial review.” That argument was, however, roundly rejected by the district court. In a stinging rebuke to BLM, the court held that the stay was arbitrary and capricious, including because it was not motivated by pending litigation over the methane regulations, but rather BLM’s desire to reconsider them. Despite this, however, EPA is now considering relying on the APA to stay its own methane regulations pending reconsideration. The Sabin Center today submitted a letter to EPA, explaining that the stay is not authorized under the APA, nor the Clean Air Act (CAA).

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December 2017 Updates to the Climate Case Charts


Posted on December 6th, 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 # 104.

FEATURED CASE

Montana Federal Court Denied Motions to Dismiss Challenges to Keystone XL Pipeline

The federal district court for the District of Montana denied motions to dismiss lawsuits challenging the presidential permit for the Keystone XL Pipeline. The court rejected the federal defendants’ and intervenor TransCanada Corporation’s (TransCanada’s) contention that issuance of the permit was unreviewable presidential action. The court found that President Trump had waived any authority he retained to make the final decision on the presidential permit when he issued a presidential memorandum on the Keystone XL Pipeline on January 24, 2017. The court said the State Department had taken final agency action when it published the record of decision and national interest determination for the pipeline and issued the presidential permit. The court also found that the federal defendants and TransCanada had not met their burden of establishing that Congress had committed to agency discretion the State Department’s determinations. In addition, the court found that the plaintiffs had alleged procedural injuries that could be redressed through the procedural remedy of adequate review under the National Environmental Policy Act (NEPA). The plaintiffs alleged, among other claims, that the defendants failed to adequately disclose climate impacts and failed to consider alternatives that would obviate the need for more crude oil. The court also allowed an Endangered Species Act claim to proceed and decided to hold a NEPA claim against the Bureau of Land Management in abeyance until BLM issued a final decision. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. Nov. 22, 2017); Northern Plains Resource Council v. Shannon, No. 4:17-cv-00031 (D. Mont. Nov. 22, 2017).

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By Charlotte Collins

Germany’s Climate Action Plan 2050, approved in 2016, is impressive in the breadth of its environmental action. It emphasizes reducing reliance on fossil fuels across all sectors, and employing climate offsets as established in the U.N. Kyoto Protocol. (These offsets, or Emission Reduction Controls (ERCs), allow industrialized countries to compensate for their own emissions by promoting sustainability projects in developing countries. ERCs are currently being phased out in favor of the trading mechanisms put in place by the Paris Agreement, so Germany’s methods of offsetting will likely see some changes in the coming years.)

Such an ambitious plan against climate change (Germany’s reduction goals are greater than those of the EU) already places the country leagues ahead of the United States in terms of environmental policy, and the German government has recently announced a modification to the carbon footprint of its own federal employees, further distinguishing itself from the U.S..

In August 2017 the German Federal Ministry for the Environment announced that German federal employees’ travel would be “carbon neutral.” Minister for the Environment Barbara Hendricks was quoted as saying: “Avoiding emissions should always be first choice. But the Federal Government offsets what is unavoidable by investing in high-quality climate change mitigation projects.”

Her statement that “avoiding emissions should always be first choice” invites harsh comparison to the actions of current EPA chief Scott Pruitt, who is now under investigation (along with Energy Secretary Rick Perry) for extensive and perhaps unnecessary travel by private jet. Pruitt spent 43 of 92 days in office between March and May in his home state of Oklahoma or traveling to and from the state, at the price of not just to American taxpayer dollars but also to the environment. Veterans Affairs Security David Shulkin, Interior Secretary Ryan Zinke, Treasury Secretary Steven Mnuchin, and U.S. Health and Human Services Secretary Tom Price have also faced criticism for similarly non-essential and expensive plane travel. (Price, in fact, lost his job over it.) President Trump himself has been in the news for his numerous trips to Mar-a-Lago and other golf clubs. Beyond these public controversies, there are also a large quantity of federal workers flying by coach and contributing to aviation GHG emissions; thus the public image of employees of the U.S. government at the moment has more to do with expensive and polluting travel than with any effort to offset or reduce its carbon impact. The issue is not one to be taken lightly, as flights produced 781 million metric tons of CO2 worldwide in 2015, and the percent of global emissions caused by air travel is projected to rise significantly as the volume of air travel increases more rapidly than advances in flight fuel efficiency.

Germany has outlined an “Avoid-Reduce-Offset” plan to keep its government travel carbon neutral. For example, to keep emissions and polluting as low as possible for traveling to the Climate Change Conference in November 2017 in Bonn, employees used carbon- neutral train journeys, electric cars, and purchasing climate offsets obtained from sustainability projects across the world, certified according to UN rules. The majority of credits traded in Germany originate from Asian renewable energy projects, as well as afforestation and methane destruction projects. Climate Action Plan 2050 particularly emphasizes the electrification of cars, use of biofuels, and new, more sustainable train technology—all of which would be used to reduce the carbon footprint of federal travel. The additional acquisition of more than 235,000 offsets (each offset equaling one metric ton of emissions) aims to compensate for the 235,240 metric tons of emissions caused by governmental car trips and air travel in the last year.

These options are employed when travel is unavoidable, but the federal government also seeks to reduce the number of trips taken by employees by the increased use of video and telephone conferences. Presumably the energy used to power these devices comes more and more often from sustainable resources, as Germany raised the proportion of its power produced by renewable energy to 35 percent in the first half of 2017. This year Germany has been getting up to 85 percent of its electricity from renewable resources on particularly sunny and windy days.

The ambitious goals set for reduction of emissions, purchasing of offsets, and increased use of renewables have been relatively successful in Germany. The target set in 2007 to reduce greenhouse gas emissions by 40 percent by 2020 was nearly met in 2015, when a reduction of 27.9 percent was achieved (both compared to 1990 emissions.) The plan for carbon-neutral federal travel is indicative of a general trend in the country, although one not without its problems. While Germany does generate large amounts of renewable energy, its use of climate offsets is not a direct reduction of emissions. While certainly better than nothing, there are those, often affiliated with the Green Party, who believe that offsets are being used as a crutch to avoid stronger emissions reductions. Such emissions reductions could prove difficult to achieve, considering Germany’s increased reliance on coal since the country’s post-Fukushima ban on nuclear energy. Coal is also being used to create energy that is then exported, contributing to an additional ten million metric tons of greenhouse gas emissions per year. Lastly, the information provided by the government about carbon-neutral federal travel focuses for the most part on the use of offsets rather than reductions. It will be interesting to see whether statistics are published after the November climate conference in Bonn.

Despite such caveats, however, Germany’s current federal attitude towards emissions is far more advanced than that of its U.S. counterpart. The image currently promoted by several high-ranking US government officials is one of emission-intensive travel, especially by airplane, rather than a public support of emissions reductions or offsets. This same attitude towards emissions is reinforced by President Trump’s announcement of intent to withdraw from the Paris Agreement. That announcement, while in and of itself ineffective, as the withdrawal would not occur for four years, indicates the attitude of his administration toward emissions reductions. Nonetheless, several aspects of Germany’s plan merit further examination by the U.S., such as the increased use of video or phone conferencing (although the German government has not confirmed that such measures have resulted in reduced federal travel). Given the geographical size of the U.S. compared to that of Germany, replacing flights with train and electric car journeys would be less practical, except within concentrated areas like the Eastern Seaboard.

We should not hold our breath, but it would truly be a remarkable day when Scott Pruitt says, “Avoiding emissions should always be first choice.”

Charlotte Collins is a recent graduate of Barnard College where she studied English Literature, Environmental Science and German. She is currently living in Berlin, Germany dancing Argentine Tango and working as a freelance editor and writer monitoring German environmental policy.

By Jeffrey Hammons

Introduction

Over the past few months, the Michigan Public Service Commission (“MPSC”) issued a series of orders updating how it implements its obligations under Section 210 of the Public Utility Regulatory Policies Act (“PURPA”).[1] These orders could spur new development of solar energy facilities in Michigan. Due to the lower costs of solar PV, other states have seen large increases in the development of these facilities over the past decade thanks to PURPA. For example, as of August 2016, North Carolina had 1,173 MW of installed solar photovoltaic (“PV”) capacity as a direct result of PURPA. Other states could use the example set in Michigan as a model to update their own implementation of PURPA.

Background on PURPA

PURPA requires electric utilities to purchase energy and capacity from qualifying renewable energy facilities (“QFs”). The rates for these mandatory purchases are based on the utility’s “avoided costs,” i.e., the cost to the electric utility of the energy and capacity which, but for the purchase from the qualifying facility, such utility would generate or purchase from another source.[2] Under a cooperative federalism framework, PURPA directed the Federal Energy Regulatory Commission (“FERC”) to promulgate regulations to promote development of QFs and delegated to states the role of implementing FERC’s regulations.

Congress enacted PURPA to “encourage the development of cogeneration and small power production facilities.”[3] “Congress believed that increased use of these sources of energy would reduce the demand for traditional fossil fuels,” and it recognized that electric utilities had traditionally been “reluctant to purchase power from, and to sell power to, the nontraditional facilities.”[4] PURPA removes barriers for non-utility generation where such generation is cost-effective, thereby increasing competition and creating a downward pressure on future energy costs.[5]

Michigan’s New Implementation of PURPA

The MPSC orders for the two largest utilities in the state made a number of changes to key issues related to Michigan’s implementation of PURPA, but three issues stand out as most important for promoting greater development of QFs in Michigan. First, the orders updated the methodology used to calculate the utilities’ avoided costs. Second, the orders required standard rates of purchase for all QFs with a nameplate capacity of two megawatts or less. Third, the orders set term length requirements for PURPA contracts with utilities for facilities with a design capacity of two megawatts or less.

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By Dena Adler

 Photo Credit: NASA

The International Civil Aviation Organisation (ICAO), the UN specialized body for aviation, earned international praise in October 2016 for striking a deal to cap emissions from international passenger and cargo flights at 2020 levels, but a new Sabin Center Working Paper argues that ICAO must improve its transparency to truly “take-off.” Given the hurdles to achieving international cooperation, ICAO deserves kudos for developing its Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), the program that aims to put the brakes on emissions from aviation—a sector responsible for approximately 5% of man-made radiative forcing. The Environmental Defense Fund estimates that if effective the program could offset 2.5 billion tonnes of carbon dioxide between 2021 to 2035. However, first the program must achieve lift-off. What additional efforts could help launch its success?

In a new Sabin Center Working Paper, legal consultant, Aoife O’Leary, argues that for starters, CORSIA must significantly improve its governance structure and transparency. Otherwise, it will risk being perceived as illegitimate by the public. In her paper, she evaluates whether CORSIA would pass muster under the Aarhus Convention—an international treaty that grants the public rights of access to information, participation in decision-making, and access to justice in environmental matters. Applying the Aarhus Convention, she finds that ICAO must allow public participation and transparency as the details of CORSIA, especially biofuel and offset standards, are determined. In addition, O’Leary explains why the EU is obligated to publicly disclose any CORSIA documents and exposes uncertainty regarding whether the implementation of CORSIA into EU law will be in compliance with the Aarhus Convention. Read the complete Sabin Center Working Paper to learn more.

November 2017 Updates to the Climate Case Charts


Posted on November 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 # 103.

FEATURED CASE

Bankruptcy Court Said California City and Counties Could Not Sue Coal Company for Climate Change Impacts

A federal bankruptcy court in Missouri enjoined San Mateo and Marin Counties and the City of Imperial Beach (the plaintiffs) from pursuing their climate change lawsuits against Peabody Energy Corporation (Peabody). The plaintiffs alleged that Peabody (and a number of other fossil fuel companies) caused greenhouse gas emissions that resulted in sea level rise and damage to their property. Peabody,  a coal company, filed for bankruptcy in April 2016 and emerged from bankruptcy under a plan that became effective on April 3, 2017. As an initial matter, the bankruptcy court said the plaintiffs had not established any basis for a claim because the complaints’ only Peabody-specific allegations were that Peabody had exported coal from terminals or ports in several California counties and was a member of organizations that plaintiffs said denied climate change. The court further concluded, however, that even assuming claims did exist, the claims were pre-bankruptcy petition claims that had been discharged under the bankruptcy plan because the plaintiffs had not filed proofs of claim. The court determined, moreover, that even if the plaintiffs’ claims could be construed as post-effective date claims (i.e., claims concerning conduct and harm after Peabody emerged from bankruptcy), the claims did not fall within the scope of a settlement with the U.S. Environmental Protection Agency (EPA) and other governmental entities to allow continued enforcement of environmental laws related to ongoing mining operations. The bankruptcy court also rejected the plaintiffs’ argument that one of their nuisance claims did not constitute a “Claim” or “Liability” pursuant to the Bankruptcy Code and Peabody’s bankruptcy plan and therefore could not be discharged and enjoined. Reorganized Peabody Energy Corp. v. County of San Mateo (In re Peabody Energy Corp.), No. 16-42529 (Bankr. E.D. Mo. Oct. 24, 2017).

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By Romany Webb

The 23rd Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) is set to begin next Monday, November 6, in the city of Bonn in western Germany. The COP will bring together representatives of 194 countries for two weeks of talks on advancing the 2015 Paris Agreement. Much of the focus will be on continuing to develop guidelines on implementing the Paris Agreement, a process that began at COP22 last year and is due to be completed by COP24 in 2018.

Implementation guidelines are required to be developed under various provisions of the Paris Agreement, including Article 6, which provides for international cooperation on actions to mitigate climate change. The Article identifies several possible “cooperative approaches,” including market-based approaches involving carbon trading. Article 6.2, for example, indicates that parties may “use . . . internationally transferred mitigation outcomes” (ITMOs) to meet their carbon reduction goals. This has the potential to benefit developing countries, leading to increased funding for their climate change mitigation projects. Care must, however, be taken to ensure that mitigation projects do not adversely affect local communities or infringe on individuals’ human rights. To avoid this outcome, it is vital that any guidelines developed under Article 6 of the Paris Agreement recognize the importance of protecting human rights when engaging in cooperative approaches, and include safeguards designed to achieve that goal.

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By Michael Burger

Earlier this week EPA Administrator Scott Pruitt issued a directive that prohibits scientists from serving on the EPA’s independent scientific advisory committees if they are currently a principal investigator or co-investigator on a research project that receives grant funding from the agency, or “if they are otherwise in a position to reap substantial direct benefit from an EPA grant.” Pruitt justified this unprecedented ruling on the eligibility of certain members of the public to serve on federal advisory committees by titling his directive “Strengthening and Improving Membership on EPA Federal Advisory Committees” and stating that committee members “shall be independent from the agency.” The problem, here, is that Pruitt’s policy runs counter to existing conflict-of-interests law, and is on its face arbitrary and capricious, in violation of the Administrative Procedures Act.

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