We are thrilled to welcome Matthew Eisenson to the Sabin Center, where his work will focus on leading and expanding the Renewable Energy Legal Defense Initiative (RELDI), which uses legal research and engagement to support siting utility- and community-scale renewable energy facilities and associated transmission and storage equipment.

Before joining the Sabin Center, Matthew served for four years as an Assistant Attorney General in the Environmental Protection Bureau of the New York State Attorney General’s Office. He also previously worked as a litigation associate at Cleary Gottlieb Steen & Hamilton LLP and as a law clerk for Senior U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania. Before law school, he served as a special assistant to the President and Executive Director of the Natural Resources Defense Council.

Matthew received a J.D. from Yale Law School in 2015 and a B.A. in History, magna cum laude, Phi Beta Kappa, with distinction in the major, from Yale College in 2009.

We look forward to Matthew’s contributions to our growing body of work.

By Romany M. Webb

In a report published last month, the Intergovernmental Panel on Climate Change (IPCC) warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, greenhouse gas emissions must reach net zero by mid-century. According to the IPCC, to achieve net zero emissions, carbon dioxide removal (CDR) will be needed to “counter-balance hard to abate residual emissions” from sectors like agriculture, shipping, and aviation. Scientist have proposed a range of CDR techniques, all of which aim to take carbon dioxide out of the atmosphere, and store or utilize it in some way. This could occur on land or in the ocean.

Today, the Sabin Center released the third in a series of papers, exploring legal issues associated with ocean-based CDR. Today’s paper focuses on artificial upwelling (AU) and artificial downwelling (AD), which aim to enhance the cycling of water between the deep ocean and the surface, and thereby increase uptake of carbon dioxide by the ocean. Previous papers have discussed seaweed cultivation and ocean alkalinity enhancement for CDR.

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By Jennifer Danis and Zoe Makoul,

The recently released Sixth IPCC Assessment Report describes a world suffering from the ramifications of climate change, disproportionately impacting our most vulnerable populations. The United States is no exception, and some states are taking the initiative to mitigate worsening climate impacts.

New Jersey has committed to reducing its greenhouse gas (GHG) emissions to meet the requirements set forth in the Global Warming Response Act (GWRA), but the state’s critical sectors have not adapted with the requisite speed to meet those limits. In Executive Order No. 23, New Jersey also committed to addressing the disproportionate impact of climate and environmental harms, but it has not operationalized its promise of environmental justice.

In a new white paper, we analyze New Jersey’s implementation gap in both the climate and justice space and offer some key recommendations to align executive action with the state’s bold promises. The paper’s findings and recommendations are potentially applicable to the many other states who have set climate and justice goals without robustly embedding them into their existing legal and administrative landscapes.

While New Jersey has clearly recognized the urgency of meeting the GWRA’s GHG limits and fulfilling the promise of environmental justice, currently, Executive Branch agencies and departments are not assessing whether their actions actually align with those goals. Although there are certain procedural safeguards in place for agency rulemaking, none explicitly require assessment or disclosure of whether the proposed rules are consistent with obtaining the state’s GHG reduction requirements. And apart from the Department of Environmental Protection, Executive Branch agencies and departments are not required to implement measures and adopt regulations to achieve the requisite GHG reductions. In addition to the GHG-related barriers, Executive Branch agencies and departments are encouraged, but not required, to assess whether their actions disproportionately impact communities of concern, nor are they required to center and operationalize environmental justice principles.

If New Jersey is to timely meet its GHG reduction goals in an equitable manner, legislation must mandate that Executive Branch agencies and departments align their actions and rulemaking with GHG-reduction and environmental justice goals. Our paper posits that these implementation issues can be addressed with minor changes to the GWRA and the Environmental Justice Law, and we propose legislative amendments modeled on recent laws adopted by New York, Maine, Washington, Rhode Island, Massachusetts, and other climate and justice leaders.

The state already has GHG reduction targets, a plan, and mapped pathways. While more aggressive tactics and targets may be required to meet evolving scientific knowledge, and cost-effective technology and markets will evolve over time, New Jersey’s climate-alignment tools and pathways are clear. Likewise, New Jersey has already done the work to promote environmental justice. Enacting an all-of-government, systematic approach to addressing both issues will ensure that these ongoing efforts yield legally durable results, capable of meeting the urgency of the moment.

Read the full paper here.

By Romany M. Webb

On April 20, 2022, the White House Council on Environmental Quality (CEQ) finalized revisions to the regulations implementing the National Environmental Policy Act (NEPA). The revisions undo changes made to the regulations during the Trump administration, which critics alleged could prevent federal agencies’ considering climate change in NEPA reviews. In announcing the revisions, CEQ indicated that it was making limited changes now to ensure federal agencies undertake “the proper scope of analysis that NEPA requires,” and that it would consider “more comprehensive” regulatory changes in the future. In particular, CEQ is exploring changes to ensure “efficient and effective environmental reviews that are guided by science” and promote improved federal decision-making to advance “climate change mitigation and resilience goals.” In a new white paper, published online today, the Sabin Center recommends seven key reforms that would further those objectives.

As explained in the paper, the proposed reforms are consistent with prior CEQ guidance and court decisions. In guidance issued in 2016, CEQ identified climate change as a “fundamental environmental issue” and concluded that “its effects fall squarely within NEPA’s purview.” The guidance identified two key climate change considerations requiring analysis under NEPA: (1) the “potential effects of a proposed action on climate change’ (i.e., via greenhouse gas (GHG) emissions); and (2) the “effects of climate change on a proposed action and its environmental impacts.” The courts have repeatedly confirmed that federal agencies are required to consider both factors in their NEPA reviews. Despite this, however, many agencies have been slow to integrate climate change considerations into their NEPA reviews.

Previous Sabin Center surveys of federal environmental impact statements (EISs) issued under NEPA have found major gaps and shortcomings in agencies’ climate change analyses. Most recently, a survey of all federal EISs issued in connection with onshore energy projects from 2016 through 2020 found that less than half of the EISs considered whether and how climate change would alter the environmental outcomes of the proposed action, and less than ten percent compared climate change impacts across alternatives. (Previous Sabin Center surveys have also identified similar deficiencies in agency analyses. See here and here for examples.)

The survey findings suggest that changes to the NEPA implementing regulations are needed to ensure federal agencies appropriate integrate climate change considerations into their NEPA reviews. We recommend changes to:

  1. ensure federal agencies consider global context when assessing the significance of a proposed action’s GHG emissions;
  2. establish a quantitative significance threshold for GHG emissions;
  3. provide additional guidance to federal agencies on accounting for climate change in environmental assessments;
  4. clarify how federal agencies can use of programmatic reviews and tiering to streamline NEPA implementation;
  5. require federal agencies to consider changing conditions and foreseeable trends when evaluating environmental impacts and mitigation measures;
  6. require federal agencies to use the “best available science” in NEPA reviews; and
  7. ensure balanced consideration of all costs and benefits in NEPA reviews.

Read full the paper here.

 

By Pedro Cisterna-Gaete and Maria Antonia Tigre

In March 2022, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA) jointly published Resolution No. 3/21, entitled Climate Emergency: Scope of Inter-American human rights obligations. The resolution’s purpose is to systematize the human rights obligations of States in the context of the climate crisis to ensure that public policy decisions are made according to a rights-based approach. The resolution represents the first resolution of the Inter-American System of Human Rights (IASHR) dedicated explicitly to the issue of climate change. The IASHR is principally made up of both the IACHR and the Inter-American Court of Human Rights (IACtHR), as well as other bodies focused on particular rights or groups. This blog post highlights takeaways from the resolution and its significance for climate litigation.

Background

In September 2019, the IACHR held a hearing for civil society organizations who called on the IASHR to recognize the climate crisis, imploring nations in the region to take further and substantive steps to address climate change. These organizations published a report on the petition and recommended that the IASHR should request states to take a rights-based approach to the climate crisis. The resolution builds on this report and the Advisory Opinion No. 23/17 of the IACtHR, which elaborated the human right to a healthy environment and recognized it as an autonomous and justiciable human right by the IASHR (see here).

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By Riccardo Luporini, Matteo Fermeglia, and Maria Antonia Tigre

On February 8, 2022, the Chamber of Deputies of the Italian Republic gave its final approval to the proposed constitutional law A.C.3156-B providing environmental protection amendments to Articles 9 and 41 of the Italian Constitution. The proposed constitutional bill, already approved by the Italian Senate, was passed with an overwhelming majority – with only 1 vote against and 6 abstentions – and has already entered into force without the need for a confirmatory referendum. The right to a healthy environment was previously recognized in the Italian constitution by means of interpretation of Article 32 on the right to health. The reform follows a global trend of increasing recognition of new obligations and rights in the field of environmental protection. This post examines the reform and highlights the important changes it introduces to the Italian legal system. The post also illustrates the positive impact the reform is likely to have on climate litigation initiatives in Italy. Adopting a comparative perspective, we draw on constitutional frameworks and recent climate litigation cases in other European jurisdictions.

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By Isabela Soares Bicalho, Gabriel Mantelli, Maria Antonia Tigre and Carmem Añon Brasolin

On March 30, 2022, the Brazilian Supreme Court, the most important judicial body in the country, will hear seven cases, and all of them are environmental cases. This is an atypical situation in the Brazilian context: having a full day focused on environmental cases has never been done before, and emphasizes the deliberate effort of the Supreme Court to ensure an environmental agenda within the country. From a political point of view, this can be contrasted with recent movements of the Federal Government under President Jair Bolsonaro and the Legislative Houses, which continue to weaken Brazilian environmental policy and climate governance through actions that undermine mining norms, environmental licensing rules, and land tenure regularization, hinder the demarcation of indigenous lands, and foster the use of pesticides.

Photo by Nathalia Segato (Unsplash)

Two climate litigation cases are included on the docket on March 30th: PSB et al. v. Brazil (on deforestation and human rights) (ADPF 760) and PSB et al. v. Brazill (on Amazon Fund) (ADO 59). The cases will be the first climate litigation cases to receive a judgment by the Supreme Court. ADPF 760 calls for the implementation of the Action Plan for Prevention and Control of Deforestation in the Amazon (PPCDAm), an essential policy to meet the deforestation target established in international climate agreements and Brazil’s Nationally Determined Contribution (NDC). The PPCDAm represents a package of measures and financial directives by the Federal Government to combat deforestation and degradation in the Amazon. The plan is divided into three fronts: (i) land and territorial planning, (ii) environmental monitoring and control, and (iii) development of sustainable production activities. The case also highlights the Federal Government’s omissions in public management, including the non-execution of policies for the preservation of the Legal Amazon and the protection of the fundamental rights of native peoples.

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By Romany M. Webb

On Monday, March 21, the Securities and Exchange Commission (SEC) proposed new rules aimed at enhancing public companies’ disclosure of climate-related risks. The proposed rule, which was supported by three of the four sitting SEC Commissioners, notes that “climate-related risks have present financial consequences that investors in public companies consider in making investment and voting decisions.” The proposed rule aims to ensure that investors have access to “consistent, comparable, and reliable” information on climate-related risks so they can “make investment or voting decisions in line with their risk preferences.” To that end, the proposed rule would, if adopted, impose new disclosure requirements on SEC registrants. This blog summarizes several of those requirements.

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By Maria Antonia Tigre

On March 15, 2022, the Full Federal Court of Australia, an intermediate appellate court, unanimously overturned the primary judge’s decision in Sharma and Others v. Minister for the Environment to impose a duty of care on the Minister for the Environment to mitigate climate harm to your people in considering whether to approve a major coal mine expansion. The Court found that the relationship relied on between the youth plaintiffs and the Minister lacked the closeness and directness that the common law demands before finding an applicant is entitled to a legal remedy against a party whose conduct has caused or may cause them harm. However, despite allowing the Minister’s appeal, the Court rejected the Minister’s argument that the primary judge made findings based on evidence of climate change that were unfounded.

Photo by Li-An Lim on Unsplash

The decision has significant implications for future climate litigation claims in Australia. Prior to this decision, the Sabin Center’s Network of Peer Review Scholars on Climate Litigation held a webinar on the Sharma case. The webinar covered the background of the case as well as the 2021 decision which was now reversed. This blog provides a preliminary analysis of the decision in Minister for the Environment v. Sharma and Others and its impact for climate litigation in Australia.

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By Jacob Elkin

As cryptocurrency has increased in popularity and cryptocurrency mining facilities have expanded their energy consumption, some fossil fuel power plants in New York have ramped up energy generation to provide behind-the-meter power to cryptocurrency miners. Increased power generation to fuel cryptocurrency mining has significant environmental impacts, leading to greenhouses gas emissions that may threaten the state’s emission reduction targets. Local governments across New York have responded with moratoria on the siting of new cryptocurrency mining facilities, and bills have been introduced in the New York State Senate and the New York State Assembly to establish a three-year moratorium on new or renewed permits for electric generating facilities that utilize carbon-based fuels and that provide behind-the-meter electric energy to proof-of-work mining facilities.

In a white paper published today, the Sabin Center for Climate Change Law argues that the New York State Executive Branch currently has legal authority under the State Environmental Quality Review Act and the Community Protection and Climate Leadership Act to pause the permitting of such facilities while the Department of Environmental Conservation analyzes the facilities’ impacts through a generic environmental impact statement. In addition to analyzing the statutory bases for such a moratorium, the white paper assesses potential legal challenges that may be brought in response to it, concluding that those challenges would not carry particularly strong legal weight. The white paper also notes that a state permitting moratorium would likely not reach mining facilities that receive all of their energy from the grid; the paper outlines potential legislative approaches to initiating state regulation of those facilities, along with relevant policy considerations.

The white paper was written by Climate Law Fellow Jacob Elkin. Read the white paper here.

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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