Climate Law Blog

By Jessica Wentz and Michael Burger

Last year, the D.C. Circuit Court of Appeals issued a key decision on the scope of greenhouse gas emission impacts that must be considered by the Federal Energy Regulatory Commission (FERC) in environmental reviews of pipeline projects. In Sierra Club v. FERC, No. 16-1329 (2017), the court held that FERC’s NEPA analysis for a natural gas pipeline project was insufficient because FERC had failed to consider the greenhouse gases generated by the combustion of the natural gas that would be transported via the pipeline. This decision was significant insofar as it clarified that the evaluation of downstream combustion emissions – which courts had previously required for coal mines and coal railways – is also required for FERC reviews of at least some natural gas pipelines.

There are now several pending cases and administrative challenges that raise additional questions about the nature of federal agency obligations to assess indirect greenhouse gas emissions from pipeline approvals. For example, are agencies required to evaluate upstream emissions from induced natural gas development, as well as downstream emissions? How exactly should an agency go about assessing the “cumulative impact” of those emissions when added to other past, present, and future actions? And are there other factors that an agency should consider when assessing the significance of these emissions, such as the social cost of those emissions? These questions are now being litigated in the D.C. Circuit and the Second Circuit. They are also relevant to assessing the adequacy of the supplemental EIS that FERC is currently preparing on remand from Sierra Club v. FERC.

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Editor’s Note

The Expert Group on Climate Obligations of Enterprises is comprised of experts, listed here,  in international, environmental, tort, human rights and company law. It has worked for several years to formulate the Principles on Climate Obligations of Enterprises, based on its interpretation of the law as it stands or will likely develop. It is a follow-up project to the Oslo Principles, which were launched at King’s College London in 2015.  The Expert Group hopes to spur a concrete debate on the responsibilities of individual entities and contribute to addressing the threats posed by climate change. The Sabin Center for Climate Change Law has not endorsed these enterprise principles, but is publishing a guest blog by their authors in order to stimulate further discussion.

The need to discern concrete obligations of major players

The challenges posed by climate change to humankind and the environment are unprecedented. Greenhouse Gas (GHG) emissions must be curbed globally in the very short term; otherwise, the future looks grim. There is broad consensus that in order to limit these consequences to ‘acceptable’ levels, global warming must be limited to below 2°C.

Notwithstanding the severity of this challenge, there is still little discussion about a concrete and enforceable distribution of the GHG emissions that must be reduced in order to achieve this imperative. The Oslo Principles (OP) aimed to map the legal obligations of States in the face of climate change. The Principles on Climate Obligations of Enterprises (EP), issued by a group of experts from all continents, discern the obligations of enterprises and investors based on the group’s interpretation of the law as it stands or will likely develop. In doing so, they aim to complement the OP in spurring a concrete debate on the responsibilities of individual players.

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By Romany Webb

Just a year into his term, President Trump has already gained a reputation for being staunchly anti-science, with his administration recently described as showing “greater distain for science” than any other in modern history. Every day, it seems, there is a new report of the administration reducing public access to scientific information, cutting funding for scientific research, or downplaying the views of qualified scientists. To keep track of these developments, the Sabin Center for Climate Change Law, in association with the Climate Science Legal Defense Fund, today launched a new Silencing Science Tracker (SST).

The SST is intended as a comprehensive record of government attempts to “silence science” since the November 2016 election. By recording all attempts in a single database, the SST enables users to easily see the myriad of ways in which scientific research and discussion are being undermined by government, and (hopefully) take action in response. This is vital as, in the words of Michael Gerrard, Faculty Director of the Sabin Center:

Scientific knowledge is the very foundation of all environmental regulation. When the government ignores science, it’s like a truck driver who wears a blindfold and drives based on what is whispered into his ear — dangerous and intolerable. The vital work of scientists must be supported, made public, and listened to. When government officials block this, we plan to shine a harsh light.

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We are pleased to announce that Susan Biniaz and Jose Felix Pinto-Bazurco are joining the Sabin Center for Climate Change Law as David Sive Visiting Scholars.

Susan Biniaz is currently a Senior Fellow at the UN Foundation and an Associate Researcher at the French think tank IDDRI.  She was a State Department lawyer from 1984 to early 2017.  She served as a Deputy Legal Adviser with wide-ranging responsibilities, as well as the lead climate lawyer and a climate negotiator from 1989 until her departure. In addition to being on the adjunct faculty at Columbia Law School, she has been on the adjunct faculty at the University of Chicago Law School and Yale Law School and was a Distinguished Visiting Fellow at the Energy Policy Institute of Chicago. While at the Sabin Center, Susan’s work will focus on various aspects of the international climate change regime.

Jose Felix Pinto-Bazurco specializes in International Environmental Law and has experience in public administration, the private sector and research. He has followed the international climate change process in different capacities: as a delegate for Peru’s Ministry of Foreign Affairs, as an academic researcher, and as a legal consultant at the UNFCCC secretariat. In 2015, the Alexander Humboldt Foundation awarded him a fellowship for his research on implementation of international climate change law in developing countries. He holds a PhD in International Law from the Justus-Liebig University in Giessen, Germany, and an LL.M. in European Law from Lucian Blaga University in Sibiu, Romania. While at the Sabin Center, Jose’s research will focus on the legal impacts in implementing the Paris Agreement in Latin American countries.

Our previous David Sive Visiting Scholars were Professor Damilola Olawuyi of Hamad Bin Kalifa University School of Law in Qatar, Professor David Markell of Florida State University School of Law, and Professor Daniel Selmi of Loyola Law School, Los Angeles.

As a reminder: The Visiting Scholar position accepts applications on a rolling basis from legal scholars, practitioners and government officials in environmental, energy and natural resources law who are interested in joining us for a sabbatical semester, summer or other short-term visit. Further details are available here.

By Emmalina Glinskis

I am a recent graduate from Columbia University with a degree in Environmental Science (CC ’17) currently working as a field scientist and technician at the U.S. Antarctic Program at Palmer Station. I am helping out Dr. Hugh Ducklow from the Earth & Environmental Sciences department at Columbia studying the microbial communities of Western Antarctica.

Being in Antarctica has been a true inspiration in understanding how landscapes react in real-time to human-induced warming, as this one of the most climate-vulnerable places in the world, warming by seven degrees Celsius over the past 50 years. To give some context, Western Antarctica is now warming at a rate five times higher than the global average temperature trends. This warming means that the sea ice duration, which naturally fluxes during the winter and summer seasons, is sticking around for 100 fewer days since 1978. As a result, phytoplankton productivity, which provides a key role in absorbing carbon from the atmosphere into the oceans, is decreasing in parts of the northern peninsula region, and affecting all other levels in the ecosystem that depend on it to survive.

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The Sabin Center for Climate Change Law posted its Summer/Fall 2017 Semi-Annual Report, which includes a summary of the Center’s key activities between June and December 2017.

It is available for download here.

Below are some key highlights from the report:

• The Center in collaboration with Arnold & Porter Kaye Scholer LLP launched a new version of its climate litigation charts at http://climatecasechart.com/.
• The Center published papers on a variety of topics. Papers include:

“Policy Readiness for Offshore Carbon Dioxide Storage in the Northeast,” 

 “Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity,” 

“The Price of Climate Deregulation: Adding Up the Costs and Benefits of Federal Greenhouse Gas Emission Standards”  

• The Center submitted comments to numerous agencies, including the EPA, FERC and the Bureau of Land Management.
• The Center sponsored 5 events, which can be viewed on our youtube channel.
• The Center received several prominent awards and recognition, including a “Distinguished Achievement in Environmental Law and Policy Award” from the American Bar Association and a “Defender of Science” Award from the Climate Legal Defense Fund, honoring Michael Gerrard.

To learn more about our nine project areas (The Clean Air Act, Environmental Assessment, Energy Law, Adaptation, Securities and Climate Finance, Natural Resources, Human Rights, International and Foreign Law, and Threatened Island Nations), our Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were interviewed, quoted or mentioned, read the report here. 

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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.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 105.

FEATURED CASE

In Split Opinion, Hawai‘i Supreme Court Ruled That Due Process Hearing Was Required to Protect Right to Clean and Healthful Environment by Considering Greenhouse Gas Impacts of Utility’s Power Purchase Agreement

In a case concerning whether Sierra Club had a right to participate in proceedings before the Hawai‘i Public Utility Commission (Commission) concerning an electric utility company’s application for approval of a power purchase agreement between the utility and an electricity producer, the Hawai‘i Supreme Court ruled that Sierra Club and its members had asserted a property interest in a clean and healthful environment that was protectable under the Hawai‘i Constitution’s due process clause. The electricity producer had produced electricity at a bagasse-fired power plant that also burned other fuels including coal and petroleum. (Bagasse is a residue produced from sugar cane processing.) The power purchase agreement sought to restate, amend, and extend an existing agreement; the Commission approved it in 2015 after denying Sierra Club’s requests to intervene or participate in the proceedings. Although the plant closed after the Commission approved the agreement, the Supreme Court said Sierra Club’s claim fell within the public interest exception to the mootness doctrine because “[r]esolution of the issue may affect similarly situated parties who in the future seek to assert their right to a clean and healthful environment in proceedings before agencies and other governmental bodies.” On the merits, the Supreme Court concluded that the Hawai‘i Constitution established a substantive right to a clean and healthful environment and that the scope of that interest was defined by “existing law relating to environmental quality,” which the court said included statutory provisions requiring the Commission to “consider the need to reduce the State’s reliance on fossil fuels through energy efficiency and increased renewable energy generation” and to “explicitly consider” the effects the State’s reliance on fossil fuels would have on greenhouse gas emissions. The court concluded that these laws defined the right to a clean and healthful environment by requiring “that express consideration be given to reduction of greenhouse gas emissions in the decision-making of the Commission.” The court concluded that the utility’s application raised issues that directly affected Sierra Club’s members’ right to a clean and healthful environment and that the Commission’s approval of the power purchase agreement adversely affected the members’ interests. A due process hearing therefore was required to consider the impacts of approving the agreement on the members’ right to a clean and healthful environment, “including the release of harmful greenhouse gases” by the power plant. Two justices dissented, with the dissenting opinion stating that the majority’s decision “expands the limits of due process in ways that could have unintended consequences.” In re Maui Electric Co., No. SCWC-15-0000640 (Haw. Dec. 14, 2017).

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By Jessica Wentz

On December 20, the City of Santa Cruz and Santa Cruz County filed separate lawsuits in California Superior Court seeking to hold 29 fossil fuel companies accountable for their contribution to climate change. In doing so, they joined five other Californian local governments that have filed similar lawsuits in the past year. What makes the Santa Cruz lawsuits unique is that they are the first to assert climate change-related injuries beyond those associated with sea level rise, including disruptions in the hydrologic cycle, more frequent and severe wildfires, heat waves, droughts, and extreme precipitation events. These new lawsuits will confront the same initial hurdles as the previous ones, but layer in the additional complexity of extreme event attribution science – an even less-well explored area in emerging climate law.   Read more »

Doctors and Scientists Challenge Removal of EPA Science Advisers  
Illegal Policy Undermines Integrity of Science and Threatens Public Health

WASHINGTON, D.C. – Today, a coalition of doctors, scientists, and professional groups are filing a lawsuit challenging EPA Administrator Scott Pruitt’s attempt to remove highly qualified, independent scientists from advisory committees that ensure the integrity of science at the agency.  EPA advisory committees provide crucial scientific and technical information to inform EPA decisions and review the scientific accuracy of EPA findings across a wide range of agency programs. Under a new policy, Pruitt is removing publicly funded scientists from the committees and replacing them with advocates for the polluting industries EPA is charged with regulating.

The parties to the suit are independent scientists Dr. Robyn Wilson and Dr. Joseph Arvai, represented by the Columbia Environmental Law Clinic, Morningside Heights Legal Services at Columbia Law School, together with Physicians for Social Responsibility, National Hispanic Medical Association, and the International Society for Children’s Health and Environment, on behalf of their members, and Professor Edward Avol, represented by the public-interest law firm Earthjustice.

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By Dena Adler

Photo Credit: Malcolm MacLeod via Wikimedia Commons

On November 21, 2017, the High Court of Ireland blocked a climate change case concerning construction of a new airport runway from moving forward, but made a groundbreaking decision in recognizing “a personal constitutional right to an environment” for the first time. In Friends of the Irish Environment CLG v. Fingal County Council, the High Court declined to grant any of the relief sought by plaintiffs after reaching several preliminary conclusions, including failure to assert a viable claim for standing. However, the High Court still issued a comprehensive review of the merits in anticipation of a future appeal. While the impact of the court’s review is limited by its preliminary findings, the court’s analysis presents important insights into how the High Court interprets the Climate Action and Low Carbon Development Act 2015 and understands the newly identified right to an environment.

Further, this newly recognized right may potentially strengthen another climate change case filed by the Friends of the Irish Environment (FIE) in October 2017. Inspired by the Dutch climate lawsuit led by Urgenda and the young people challenging the U.S. federal government for failure to address climate change, FIE filed a landmark climate change case against the Irish government.   FIE alleged that the country’s National Mitigation Plan fails to fulfill promises Ireland made under the Paris Climate Change Agreement to reduce its greenhouse gas emissions and violates the Climate Action and Low Carbon Development Act 2015, the Irish Constitution, and human rights obligations. The Irish Government will appear in the High Court on December 12 to respond to FIE’s challenge.

The case against the Fingal County Council arose when FIE challenged the Council’s decision to extend the Dublin Airport Authority’s permission to construct a new runway. Among other claims, FIE argued that the extension violated the Climate Action and Low Carbon Development Act 2015. Under Section 15, the Act creates an obligation that “A relevant body shall, in the performance of its functions, have regard to . . . the furtherance of the national transition objective, and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.”

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