By Leah Adelman and Jacob Elkin

Columbia Law School’s Sabin Center for Climate Change Law has published an update to its Report on Opposition to Renewable Energy Facilities in the United States, which documents local restrictions on and opposition to the siting of renewable energy projects. The updated report highlights 121 local policies restricting new wind and solar across 31 states, along with 204 renewable projects that have been contested across 49 states, which represent 17.5% and 23.6% increases over the report’s September 2021 update. Mississippi was the only state without identified local opposition or restrictions.

Photo by Karsten Würth on Unsplash

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By Korey Silverman-Roati

Background

Starting in 2017, cities, counties, and states across the United States have filed claims (see here and here) in state courts against fossil fuel companies seeking redress for the climate harms their products have caused. Many of these cases asserted nuisance and other tort law claims. (More recently, states and municipalities have asserted claims under consumer protection laws.). The plaintiffs in these cases allege that the companies knew the harms their products would cause, that the companies failed to warn and misled the public about those harms, and that the products have caused damages in the form of rising seas, more frequent and severe storms, heat waves, and wildfires, among other climate change impacts.

Oil pump

Since 2017, these cases have been mired in a nearly five-year fight over whether they should be heard in state or federal court. Fossil fuel company defendants want the cases heard in federal court, where they can argue that the cases should be quickly dismissed on the grounds that federal common law climate claims are displaced by the Clean Air Act. Local and state government plaintiffs want the cases to remain in state court, where they can argue that climate nuisance claims are similar to past common law efforts to hold companies accountable for misleading the public about their products’ harms, like those against tobacco companies. The vast majority of courts that have ruled on this issue have said the climate claims should remain in state court. Yesterday, for the first time, a state court in Hawai‘i issued a ruling denying a motion to dismiss in a climate nuisance case, a key step in the case’s progression towards trial.

The Hawai‘i Circuit Court’s decision

The Hawai‘i trial court denied fossil fuel companies’ motion to dismiss the City and County of Honolulu’s climate change lawsuit for failure to state a claim. The court described the case as “an unprecedented case for any court, let alone a state court trial judge,” but concluded that it was “still a tort case” and “based exclusively on state law causes of action,” primarily failures to disclose, failures to warn, and deceptive marketing. Read more »

Cooperative Federalism, As Applied: Building Electrification


Posted on February 22nd, 2022 by amyturner

By Amy Turner

Earlier this month, groups supporting the City of Berkeley, California filed six amicus briefs in the appellate proceeding California Restaurant Association v. City of Berkeley, currently before the U.S. Court of Appeals for the Ninth Circuit. At issue in the case is whether the U.S. Energy Policy & Conservation Act (EPCA), which sets nationwide energy conservation standards for many common appliances and preempts state and local standards, preempts Berkeley’s 2019 ban on natural gas connections to newly-constructed buildings. (A refresher on the case, and on the District Court ruling from which the California Restaurant Association appealed are both linked here.)

While there is much to be said about the many arguments offered by Berkeley and the amici as to why EPCA does not preempt the Berkeley Ordinance, this post focuses on four of the amicus briefs – those submitted by the U.S. Department of Energy (the “DOE Brief”), the California Attorney General on behalf of eight states and two cities (the “States Brief”), a group of energy and environmental law professors (the “Law Professors Brief”), and three associations of local governments (the “Local Government Brief”) (authored by the Sabin Center) – which, together, offer a compelling and comprehensive view of the complementary but distinct regulatory areas over which the federal, state, and local governments exercise jurisdiction with respect to overlapping facets of building electrification.

The process of converting to all-electric buildings – or, in other words, of phasing buildings off of gas and other fossil fuels – involves two spheres: the appliances and building systems inside of  a building, and the energy system outside of it. Simply put, a building’s systems and appliances have to be capable of being powered by electricity, and electricity must be delivered to a building to the exclusion of fossil fuels. Each of these spheres is regulated at the federal, state, and local levels. The amicus briefs, taken as a whole, lay out how these overlapping regulatory spheres and jurisdictions relate to one another. And while each brief focuses on the domain of the agency or group submitting it (and the law professors’ brief discusses state and local authority under the U.S Natural Gas Act, among other things), they paint a remarkably consistent picture with respect to cooperative federalism as it is applied to building electrification. 

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By Jennifer Danis and Romany Webb

       Image Source: Wikimedia Commons

The Federal Energy Regulatory Commission (FERC)—i.e., the federal agency responsible for approving interstate gas pipelines—yesterday announced two major statements explaining how it proposes to: (1) realign its fossil fuel infrastructure approval process with the Natural Gas Act (NGA)’s mandate to only approve projects that serve the public interest; and (2)  factor climate change into this framework for pending and future decisions. While neither statement is final, their impending release still represents a major step for FERC, signaling a shift in its approach to approving new pipeline projects. 

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By Romany Webb

During his campaign for President, Joe Biden promised to “use the full authority of the executive branch to . . . significantly reduce [greenhouse gas] emissions,” including by “banning new oil and gas permitting on public lands and waters.” Consistent with that promise, one week after taking office, President Biden issued Executive Order 14008 directing the Secretary of the Interior to “pause new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review.” Over the following weeks, the Department of the Interior (“DOI”) delayed a number of planned lease sales, prompting court challenges from several states and industry. In one of the cases—State of Louisiana v. Biden—a federal court in Louisiana issued a preliminary injection preventing DOI from implementing the pause. The Biden administration has appealed the decision but, pending resolution of the appeal, has moved forward with leasing in some areas.

Last November, DOI’s Bureau of Ocean Energy Management (“BOEM”) held the largest offshore oil and gas lease sale in U.S. history, putting over eighty million acres in the Gulf of Mexico up for sale (in so-called “Lease Sale 257”). DOI was, however, again reined in by the courts. In January, in Friends of the Earth v. Haaland, a federal district court invalidated the sale on the ground that BOEM had violated the National Environmental Policy Act (“NEPA”). Several other courts have also recently found problems with DOI’s NEPA review of oil and gas leases. While such court losses are generally viewed as setbacks for the government, they may actually be good news for the Biden administration. In several of the cases, the courts’ reasoning suggests that they make take a more favorable view of future administration moves to stop oil and gas leasing on public lands, at least where those moves are justified as a way of avoiding climate or other environmental harms.

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This post was co-authored by the Sabin Center’s Romany Webb and Stephanie Jones and Michael Panfil of Environmental Defense Fund.

From pipelines destabilized by melting permafrost to power line-sparked wildfires exacerbated by drought, the impacts of climate change are affecting infrastructure across the U.S. and heightening the risks it poses to the environment and communities. A new study, undertaken jointly by Environmental Defense Fund and Columbia Law School’s Sabin Center for Climate Change Law, finds that federal agencies are not adequately considering climate change impacts in energy project reviews conducted under the National Environmental Policy Act (“NEPA”). The finding stands at odds with NEPA’s requirement that federal agencies take a “hard look” at the environmental effects of proposed actions, including considering ways to mitigate adverse effects and alternative courses of action, before proceeding.

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Climate Litigation in Latin America and the Caribbean: launching a regional Platform for Climate Litigation

By Maria Antonia Tigre, Florencia Ortúzar, Javier Dávalos

With the largest rainforest in the world, the largest freshwater reserves on the planet and the most significant amount of arable land where food is produced, the importance of Latin America and the Caribbean in the fight against climate change is undeniable. Unfortunately, however, the region is also highly vulnerable to the damaging effects of the climate crisis, despite not being significant emitters of greenhouse gasses. As a result, human and environmental rights are being threatened in a context where defenders are constantly at risk. Sadly, the region has been recognized as the most dangerous for environmental and human rights defenders.

Strategic climate litigation has slowly grown in the region as a critical tool to complement the work for the defense of the environment, the territory, and the protection of the rights of peoples and communities. Litigating in the Global South and Latin America is different from litigating in the Global North, with particular challenges that must be addressed strategically. Cases in some of the most dangerous countries for environmental defenders might render them more vulnerable to attacks and threats. A lack of resources might leave plaintiffs, who bravely stand up for the cause, unprotected, and not only from violence but from subtler maladies, such as emotional stress or stigmatization. Another huge obstacle is the grave corruption that affects the region, which implies excessive power for extractive companies. Corruption is a widespread and deeply rooted phenomenon, especially in multimillion-dollar industries such as fossil fuels and extractivism. There’s a risk that companies or governments might co-opt academics, and proving and battling corruption is extremely difficult and dangerous.

Finally, one of the most severe obstacles to making climate litigation effective in Latin America and the Caribbean is the difficulty litigators face when implementing favorable decisions. LAC presents some encouraging but at the same time alarming statistics around climate litigation. Although the vast majority of cases that have been resolved so far have had favorable decisions, the implementation of these has, so far, been unsatisfactory. There is much to be done on this front, including identifying administrative deficiencies of States that influence the difficulty of enforcing decisions; and considering, from the planning stage of cases, which remedies are sought and how implementation will be demanded.

Despite these challenges, climate litigation is already showing the power it beholds in promoting change. In Peru, a group of young people sued the government for failing to formulate and execute a national policy and plan to curb deforestation in the Peruvian Amazon (Álvarez et al. v Peru). In Colombia, the Wayúu indigenous communities promoted an action to annul the environmental permit of a colossal coal mine (Mina Cerrejon). In Mexico, Greenpeace promoted an injunction to stop atmospheric pollution and improve air quality in the State of Mexico (Greenpeace v Secretaría de Medio Ambiente). In Argentina, the Organización de Ambientalistas Organizados demanded that the Ministry of Environment halts the approval of offshore exploration of fossil fuels for its impacts on whales and climate change (Organización de Ambientalistas Organizados v Ministry of Environment and Sustainable Development). In Ecuador, a group of nine girls questions the Ecuadorian State for authorizing oil companies to burn gas in the Ecuadorian Amazon (Caso Mecheros). In Chile, the NGO Defensoría Ambiental sued the government and all the companies operating in an emblematic sacrifice zone for the environmental damage caused after years of operations (Daño Ambiental en Ventanas). And these are only some examples.

The Climate Litigation Platform for Latin America and the Caribbean has been created in this context. The Interamerican Association for Environmental Defense (AIDA), a regional NGO that uses the law to protect the environment and the human rights of communities, has been leading the effort in close collaboration with regional organizations and litigators who have been behind some of the cases in the region. AIDA will launch the Platform on February 16, 2022. Please register for the launch here. Simultaneous translation in English and Spanish will be available.

The Platform, which is maintained in Spanish, offers information on the judicial cases in the region that use climate arguments in a friendly and intuitive manner. It also includes a section of downloadable resources that might be useful for stakeholders who are planning on using the law to advance their cases. The goal is to promote more cases and better outcomes. Thus, the Platform is a tool to deliver, share strategies, experiences, and arguments on climate litigation, help create and strengthen alliances and facilitate contact between people who work in favor of the environment and climate.

This initiative emanates from a collaboration with different organizations. It is a cross-cutting and participatory initiative that feeds on collective work. AIDA’s initiative fits well within the collaborative endeavors of the Sabin Center. In December 2021, the Sabin Center launched the Peer Review Network of Global Climate Litigation to enhance the field of study and practice in climate litigation and ensure broad and equal geographic representation in our Global Climate Litigation Database. The Network includes national rapporteurs who help us ensure the database is comprehensive and up-to-date. In addition, the Sabin Center is continuously partnering with regional initiatives that specifically analyze climate litigation within a national or regional context. As part of this ongoing effort, the Sabin Center has partnered with AIDA to share information and facilitate the exchange between collaborators of the two projects. The launch of this regional Climate Litigation Platform is not only great news for Latin America and the Caribbean but also for the whole active global community that uses the Courts in favor of the planet.

By Jennifer Danis,

Yesterday, the Sabin Center, Environmental Defense Fund, and New Jersey Conservation Foundation submitted comments to the New Jersey Board of Public Utilities (“BPU”) proceeding investigating the state’s current and mid-term future supply and demand for gas. (NJBPU Docket GO20010033.) The comments recommend that BPU commence a long-term gas planning proceeding, and require gas utilities to seek prior approval before taking contracts supporting new pipeline capacity.

In response to ongoing dialogue with energy experts and advocates and state gas utilities, the BPU retained an independent expert, London Economics, International (“LEI”), to study whether New Jersey gas distribution utilities needed additional fossil fuel pipeline capacity to serve their customers. LEI’s conclusion that no new capacity was needed was unsurprising to clean energy experts and advocates, but ran contrary to state gas utilities’ claims. Now, formalizing data and analyses showing no new gas capacity is needed through this regulatory proceeding provides a clear signal to gas utilities that their days of unchecked infrastructure-based growth are over. It is critical that BPU quickly provides clear guidance and frameworks to its gas utilities to help them chart their paths forward, as other states are beginning to do, through an open and transparent gas supply planning proceeding.

As the Regulatory Assistance Project has explained, state public utility commissions have significant work to do to realign their historic roles with state laws requiring greenhouse gas reductions and clean energy transitions. The New York Public Service Commission is well underway in its process attempting to do just that; and new state legislation is being proposed to both support and expedite the energy transition. The situation in New Jersey is different: while New Jersey’s BPU has a statutory mandate to ensure that its utilities are serving customers in a manner that conserves and preserves the environment, in many ways, this legislative command has laid dormant and not been operationalized.

The Sabin Center, Environmental Defense Fund, and New Jersey Conservation Foundation have taken an active role in these proceedings to recommend next steps for BPU to take based on LEI’s conclusion that New Jersey’s gas distribution utilities do not need any additional supply capacity out to 2030, so long as they undertake proper planning. Why is planning so essential? It’s not just to meet climate and clean energy goals – although meeting those are critical. It’s also to ensure that ratepayers don’t end up footing the bill for infrastructure that is not only unnecessary to meet demand, but continues to push climate and clean energy goals out of reach. Low and moderate income ratepayers – those who are least able to be early adopters of clean energy technology, and who disproportionally suffer from climate change’s worst impacts – will be increasingly at risk without BPU taking an active role in utility planning for gas transition. Gas utilities now have to be held accountable, and BPU should deploy the recommendations set out in our comments to ensure that the state’s transition away from fossil fuels is economic, orderly, and expeditious.

By Amy Turner, Michael Burger & Jennifer Danis

Today, the Sabin Center filed an amicus brief on behalf of the National League of Cities, the League of California Cities, and the California State Association of Counties in California Restaurant Association v. City of Berkeley, a case before the U.S. Court of Appeals for the Ninth Circuit. The case concerns whether the U.S. Energy Policy and Conservation Act (EPCA) preempts a local ordinance in Berkeley, California that prohibits most natural gas hook-ups to newly-constructed buildings. 

As described previously on this blog, in 2019, Berkeley enacted its so-called “natural gas ban,” setting off a wave of building electrification requirements across the state and, to some extent, the country. The California Restaurant Association, an industry group, challenged Berkeley’s ordinance, arguing that it was preempted by both state and federal law. In July 2021, the U.S. District Court for the District of Northern California upheld Berkeley’s ordinance against the CRA’s challenge, holding that EPCA does preempt the Berkeley gas prohibition simply by virtue of having “some downstream impact on commercial appliances.” The CRA appealed to the Ninth Circuit on the federal preemption claims only.

Our amicus brief argues that the Berkeley ordinance is a straightforward exercise of the city’s police power, which authorizes it to protect public health, safety, and general welfare. The police power is reserved to the states under the Tenth Amendment of the U.S. Constitution, and most states, including California, delegate some or all aspects of it to local governments within their borders. In enacting its natural gas restrictions, Berkeley was acting to protect its residents from actual and potential dangers related to indoor and outdoor air pollution, seismic risk and risk of explosion, and the impacts of climate change. Disallowing Berkeley’s ordinance would put at risk countless ways in which local governments protect their residents’ welfare.  Read more »

By Jacob Elkin

Today, the Sabin Center filed an amicus brief on behalf of the National League of Cities and the U.S. Conference of Mayors in West Virginia v. EPA, a case that is currently before the United States Supreme Court. The case concerns the scope of the United States Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions from existing fossil fuel power plants under Section 111(d) of the Clean Air Act (CAA).

In 2015, the EPA published the Clean Power Plan (CPP), which established mechanisms for reducing power plants’ greenhouse gas emissions that included shifting power generation toward lower- and non-emitting energy sources. EPA repealed the Clean Power Plan in 2019 and replaced it with the Affordable Clean Energy Rule, stating that Section 111(d) did not authorize the generation-shifting measures contained in the Clean Power Plan. In January 2021, the D.C. Circuit held that the 2019 Clean Power Plan Repeal and Affordable Clean Energy Rules were themselves based on a misinterpretation of EPA’s CAA authority and that the CAA’s text did not necessarily foreclose the sort of generation-shifting measures contained in the CPP. As of now, there is no rule governing greenhouse gas emissions from existing power plants in effect under Section 111(d).

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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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