By Will Donaldson*

On June 15, 2022, the Municipal Court of Prague sided with a Czech climate NGO in Klimatická žaloba ČR v. Czech Republic, ordering the Czech government to create a more ambitious emissions reduction plan based on its obligations under the Paris Agreement (Press Release of Czech Climate Litigation). The Court drew on IPCC reports and the EU NDC to determine that the Czech Republic must take measures to reduce its emissions by 55% by 2030 compared to 1990 levels (Opinion, unofficial translation, paragraph 251). The court’s decision adds to a list of successful climate ambition cases that began with the Netherlands’ Urgenda decision in 2007. These cases, and pending cases in South Korea, Canada, the European Court of Human Rights, and Italy, face down a daunting question: what is a country’s “fair share” of effort to combat climate change?

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United Nations Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction

By Maria Antonia Tigre

 

On September 23, 2022, the United Nations Human Rights Committee (UNHRC) delivered a landmark decision in Daniel Billy and others v Australia (Torres Strait Islanders Petition) finding that the Australian Government is violating its human rights obligations to the indigenous Torres Strait Islanders through climate change inaction. The eight Torres Strait Islanders are indigenous inhabitants of Boigu, Poruma, Warraber and Masig, four small, low-lying islands in Australia. The decision represents a historical win for indigenous communities worldwide, who have the smallest ecological footprints, yet are significantly and disproportionally impacted by the adverse effects of climate change.

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Guest Commentary: Legal action in the UK in a time of climate crisis


Posted on September 20th, 2022 by mariatigre

Guest Commentary: Legal action in a time of climate crisis

By Katie de Kauwe and Millie John-Pierre*

On July 18, 2022, one of the hottest days on record in the UK, an equally ground-breaking judgment was handed down by the High Court of England and Wales in R (Friends of the Earth Ltd and Others) v Secretary of State for Business Energy and Industrial Strategy [2022] EWHC 1841 (Admin). The court found that the UK Government’s plans to cut carbon emissions were inadequate and breached national law. There were three separate claims, brought by (1) Friends of the Earth, (2) ClientEarth, and (3) Good Law Project and environmental campaigner Joanna Wheatley. They all concerned failings in the UK government’s economy-wide decarbonization plan, the Net Zero Strategy (NZS). The NZS was adopted in October 2021 under s.13 and s.14 of the Climate Change Act 2008 (CCA). This piece of legislation was the first of its kind anywhere in the world. It requires the UK Government to set, and meet, legally binding targets to reduce carbon emissions.

Through affirming the CCA’s enforceability, the court case ensures that the UK Government is held accountable to its climate commitments. The outcome of the case was very significant for Friends of the Earth, as it had fought for the enactment of the CCA through its Big Ask campaign. The result of the case is also significant globally, as it bolsters the effectiveness of a piece of national law, at a time when several other countries have followed suit and adopted domestic legislation in an effort to curb their carbon emissions.

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STAFF NEWS: FIVE FELLOWS JOIN THE SABIN CENTER


Posted on September 12th, 2022 by tiffanychalle

This month, Carolina Arlota joins us as an Associate Research Scholar. Her work explores international and domestic (U.S.) laws governing the cross-border transport of carbon dioxide (CO2) for sequestration, and how such transportation fits into broader climate and environmental protection regimes, including the Paris Agreement on Climate Change, carbon markets and emissions trading. This line of investigation builds on her previous research on the Paris Agreement and related climate policies. Prior to joining the Sabin Center, Carolina was a Visiting Assistant Professor at the University of Oklahoma, College of Law, where she has taught several courses on international law, including International Commercial and Investment Arbitration, International Business Transactions, Comparative Law, European Union Law, and International Energy Law. Before moving to the United States, Carolina held prestigious clerkships in Brazil and worked as an attorney for Petroleo Brasileiro S.A—PETROBRAS, the Brazilian state-controlled oil company. She holds an LL.M. and a J.S.D. from the University of Illinois at Urbana-Champaign, College of Law.

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By Jacob Elkin

While the most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—adaptation litigation will also increase as climate impacts become more frequent, extreme, and intense. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change.

Image by Joe Ravi pursuant to a CC-BY-SA 3.0 license.

In a white paper published today, the Sabin Center assesses the role of climate science in cases seeking adaptation measures and cases challenging planned or existing adaptation actions. Key questions that emerge from these cases include:

  • Whether government and corporate defendants have legal discretion to incorporate climate science into their decision-making differently than plaintiffs claim they should, or to ignore certain science altogether.
  • Whether the relevant climate impacts are foreseeable enough to justify or mandate adaptation measures that respond to those impacts.
  • Whether the relevant climate impacts have already occurred or will occur in a timeframe that is judicially cognizable.
  • Whether the judiciary has the expertise to determine questions pertaining to the validity and significance of climate science, or whether those questions should be left to other branches of government.

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By Jacob Elkin and Elza Bouhassira

Going back to 1978 and through this month, Congress has acknowledged climate change in a total of 87 enactments, as shown by a database just posted by Columbia’s Sabin Center for Climate Change Law.

The database collects Congress’s references to climate change, along with related terms and concepts like global warming and greenhouse gases. The 87 enactments in the collection encompass statutes and appropriations bills that were passed by Congress and signed by the president—including every president since President Jimmy Carter. They date from September 1978–when Congress passed an “act to establish a comprehensive and coordinated national climate policy and program”–to the Inflation Reduction Act of August 2022. Many of the earliest bills in the collection demonstrate Congress clearly recognizing and directing further analysis on the threat of anthropogenic climate change, while other bills provide funding for climate change adaptation and mitigation or direct regulatory action. (The much larger number of bills that were never enacted are not included.) Read more »

By Romany M. Webb

           Source: Wikimedia Commons

The Inflation Reduction Act (IRA) has been described as being “all carrot” and “no stick” but that is not entirely correct. It is certainly true that the IRA uses “carrots” – principally in the form of tax credits – to incentivize actions that will reduce greenhouse gas emissions. For example, the IRA extends and expands existing tax credits for renewable electricity production, and creates a new credit for electricity production at certain  nuclear power plants. The IRA also provides billions of dollars for grant, loan, and similar programs to be administered by various federal agencies. The Environmental Protection Agency (EPA), for instance, has been allocated over $1.5 billion for “grants, rebates, contracts, loans” and “other activities” to reduce greenhouse gas emissions from the oil and natural gas sector. That sector is also affected by an important new “stick” created by the IRA.

The stick takes the form of a “methane emissions charge,” which EPA must collect from certain entities in the oil and natural gas sector, unless and until stringent regulations controlling the sector’s methane emissions are implemented. While the charge is somewhat limited, its inclusion in the IRA is nevertheless a big deal. It represents the first time the federal government has levied a fee on the emission of any greenhouse gas.

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Cities & the Inflation Reduction Act


Posted on August 22nd, 2022 by amyturner

By Amy Turner

On August 16, President Biden signed the Inflation Reduction Act (or “IRA”), widely hailed as the most ambitious piece of climate legislation in U.S. history. The bill is sprawling, covering climate and energy topics as diverse as electric vehicles, building decarbonization, clean energy manufacturing and supply chains, agriculture, and greening the electricity system, all through a range of tax incentives and direct grants. (The bill also has healthcare and prescription drug provisions, makes tax code changes unrelated to climate and energy, and guarantees federal land on- and offshore for oil and gas drilling.) Only portions of the legislation apply directly to units of local government, but taken as a whole it can be expected to help U.S. cities move toward their greenhouse gas reduction goals via a cleaner national electric grid, increased vehicle and building electrification, and new distributed renewable energy resources. Still, how does a local government tap in?

There are six broad ways local governments will need to navigate the IRA. 

First, there are several provisions in the legislation through which units of local government may directly draw financial support from a federal agency. Generally, local governments are not the only parties eligible to access funding from a particular program; often states, Indian tribes, and sometimes even private parties are also eligible. In some instances, the IRA specifies a timeframe in which the relevant agency must issue parameters for tapping into funding amounts. Regardless of whether this is made explicit in the IRA, in each case, the relevant agencies will need to make additional details about their respective programs available, whether through formal rulemakings or otherwise. A list of programs for which local governments are eligible appears as an appendix at the end of this blog post.  Read more »

By Romany M. Webb

At Tuesday’s signing ceremony, President Biden described the Inflation Reduction Act (IRA) as “one of the most significant laws in our history.” Political rhetoric aside, its passage is a major achievement. After decades of inaction on climate change, the U.S. Congress has finally taken a step forward. The IRA allocates billions of dollars to support the development of renewable energy, electric vehicles, and other clean technologies that will drive down greenhouse gas emissions. But, like much of what happens in Congress, the IRA is a compromise.

Many have complained that the IRA includes provisions that benefit the fossil fuel industry. Of particular concern is a section that prevents the Department of the Interior (DOI) from leasing federal land for wind and solar energy projects unless it has offered a certain amount of land for lease for oil and gas development. Tying the leasing of land for renewable energy projects to fossil fuel development in this way is problematic for a host of reasons. But its real world impact might be more limited than many fear.

The IRA only conditions the issuance of leases for renewable energy projects on the offering of land for oil and gas development. There is no requirement that oil and gas leases actually be sold. In recent years, industry interest in developing oil and gas resources on federal land has declined, leading to fewer leases being sold. That trend is likely to continue in coming years as a result of other changes to the federal land leasing program mandated by the IRA, as well as various market forces.

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Czech Republic-Poland’s dispute over the Turów mine: Financial implications and lost opportunities for just transition in Poland

By Marcin Stoczkiewicz*

 One of the most interesting environmental legal disputes in the European Union was recently settled between the Czech Republic and Poland before the Court of Justice of the European Union (CJEU) (Case C-121/21). Czech Republic v Poland (Mine de Turów, ECLI:EU:C:2021:420, ECLI:EU:C:2021:752, ECLI:EU:C:2022:74) concerned the operation of a lignite mine in Poland. Because of its location on the border between the Czech Republic and Germany, the Turów mine negatively impacts the environment of both countries. The catalyst for the dispute was the Polish authorities’ concession extension to operate the mine until 2026 without carrying out an environmental impact assessment (EIA) as required by European Union (EU) law. Owned by the Polish Energy Group (PGE), the Turów mine supplies lignite to the 1984 MW Turów power plant. The plant generates electricity for about three million Polish households, which amounts to around 7% of the country’s output. Emitting almost 10 million tonnes of CO2 each year, the plant has been on the EU’s list of power plants with the highest negative impact on climate for years. In February 2022, the parties announced a settlement for Poland to pay EUR 45 million in damages to the Czech Republic.

The dispute’s main focus was the negative impact on groundwater in the Czech Republic. However, the case also holds climate aspects. Firstly, Directive 2011/92 EU of the European Parliament and the Council on the environmental impact assessment of projects requires a mandatory environment (including climate) impact assessment for certain public and private projects (e.g., thermal power stations, motorways, pipelines, opencast mines). As such, the Polish authorities have breached important provisions on preventive climate protection by granting the concession without requiring one. Secondly, this case contributed to the rejection of the Polish authorities’ application for funding from the Just Transition Fund. The fund supports coal-dependent regions in the EU that have committed to reducing coal mining and burning due to the need for climate protection. This blog post analyzes the climate implications of the case.

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Disclaimer

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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