Law Commons^™

State Hazard Mitigation Plans & Climate Change: Rating The States 2019 Update, Dena P. Adler, Emma Gosliner

Sabin Center for Climate Change Law

Between 1980-2019, the U.S. endured 250 climate and weather disasters that each cost more than $1 billion, resulting in a total cost exceeding $1.7 trillion. Climate change contributes to a variety of hazards including extreme precipitation, drought, sea level rise, storm surge, heat waves, and flooding, and this effect will worsen over time. While the onset of natural disasters may be unavoidable, forgoing the opportunity to plan for changing conditions and increasing risks puts citizens in the path of preventable danger. Further investing in pre-disaster preparation or other resilience-building activities can save considerable money down the road – and many …

U.S. Climate Change Litigation In The Age Of Trump: Year Two, Dena P. Adler

Sabin Center for Climate Change Law

More than two and a half years into the Trump Administration, no climate change-related regulatory rollback brought before the courts has yet survived legal challenge. Nevertheless, climate change is one arena where the Trump Administration’s regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review and other decisionmaking; and hindered adaptation to the impacts of climate …

Changing The National Flood Insurance Program For A Changing Climate, Dena Adler, Michael Burger, Rob Moore, Joel Scata

Sabin Center for Climate Change Law

Congress established the National Flood Insurance Program (NFIP) in 1968 to reduce flood damages nationwide and ease the federal government’s financial burden for providing disaster recovery.1 To achieve this goal, the program was designed to perform three primary functions. First, the program provides federally backed insurance to property owners and renters. Second, the program established minimum requirements for building, land use, and floodplain management practices that local communities must adopt in order for their residents to be eligible to purchase NFIP insurance coverage. Third, the program is responsible for mapping high floodrisk areas. These maps inform local land use decisions …

Breaking The Cycle Of "Flood-Rebuild-Repeat": Local And State Options To Improve Substantial Damage And Improvement Standards In The National Flood Insurance Program, Dena Adler, Joel Scata

Sabin Center for Climate Change Law

Congress established the National Flood Insurance Program (NFIP) in 1968 to reduce flood damages nationwide and ease the Federal government’s financial burden for providing disaster recovery. Today, approximately 22,000 communities in all 50 states and U.S. territories participate in the NFIP. The program has 5.1 million flood insurance policies providing $1.3 trillion in coverage. Due largely to recent flood disasters, the NFIP is over $20.5 billion in debt.

A proportionally small number of properties insured through the program are repeatedly flooded, repaired, and rebuilt. These properties, known as “severe repetitive loss” (SRL) properties, contribute disproportionally to the rising debts of …

U.S. Climate Change Litigation In The Age Of Trump: Year One, Dena P. Adler

Sabin Center for Climate Change Law

In its first year, the Trump Administration undertook a program of extensive climate change deregulation. The Administration delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or withdrew energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change. However, the Trump Administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.

This paper seeks to …

Critics Float Legal Theories To Challenge Pruitt's Science Advisor Policy, Maria Hegstad

Sabin Center for Climate Change Law

House Democrats and a Columbia University law professor are detailing possible legal arguments that could be used to challenge Administrator Scott Pruitt’s controversial new directive barring scientists who are receiving an EPA research grant from serving on one of its scientific advisory committees.

Appliance And Equipment Efficiency Standards: A Roadmap For State And Local Action, Peter Ross

Sabin Center for Climate Change Law

For decades, federal energy and water efficiency standards have demonstrably saved consumers money, reduced pollution, and increased grid reliability. The U.S. Department of Energy (“DOE”) periodically reviews standards and test procedures for more than 60 products, representing about 90% of home energy use, 60% of commercial building energy use, and 30% of industrial energy use. Due in part to their incremental nature and proven track record of success, these standards have been relatively uncontroversial, and often have been reached via consensus between manufacturers seeking regulatory certainty and environmental advocates seeking greater efficiency.

Recently, however, the political winds have shifted. Immediately …

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project …

Planning For The Effects Of Climate Change On Natural Resources, Jessica A. Wentz

Sabin Center for Climate Change Law

Climate change has important implications for the management and conservation of natural resources and public lands. The federal agencies responsible for managing these resources have generally recognized that considerations pertaining to climate change adaptation should be incorporated into existing planning processes, yet this topic is still treated as an afterthought in many planning documents. Only a few federal agencies have published guidance on how managers should consider climate change impacts and their management implications. This Article explains why these agencies are legally required to consider climate- related risks in planning processes, and presents recommendations and a model protocol for conducting …

Federal Implementation Plans And The Path To Clean Power, Daniel Selmi

Sabin Center for Climate Change Law

Promulgated under the Clean Air Act in October 2015, the Clean Power Plan (“CPP”) requires states to significantly reduce carbon emissions from existing power plants and is the centerpiece of the Environmental Protection Agency’s (“EPA”) response to global warming. Many states have filed lawsuits challenging the CPP and some states have vowed that, if those suits are unsuccessful, they will refuse to implement it. In turn, EPA has proposed rules that would implement the CPP by imposing a “federal implementation plan” (“FIP”) upon those recalcitrant states under the authority of the Clean Air Act. Thus, the success of the CPP …

Environmental Law: Time To Reboot, James Gustave Speth

Sabin Center for Climate Change Law

Presentation given by James Gustave Speth at the 2016 David Sive Memorial Lecture.

Local Law Provisions For Climate Change Adaptation, Justin Gundlach, P. Dane Warren

Sabin Center for Climate Change Law

In September 2014, New York enacted the Community Risk and Resiliency Act (CRRA), which requires in part that the New York Department of State (DOS) and the Department of Environmental Conservation (DEC) create model local laws relating to climate change adaptation for use by local governments. In an effort to assist the State with drafting model local laws for adaptation; to encourage the State to incorporate a broad range of adaptation strategies, including retreat from areas of high flood risk; and to assist local governments with implementation of these programs. The Sabin Center for Climate Change Law has assembled existing …

Reconciling International Investment Law And Climate Change Policy: Potential Liability For Climate Measures Under The Trans-Pacific Partnership, Meredith Wilensky

Sabin Center for Climate Change Law

The pending Trans-Pacific Partnership (TPP) trade agreement has raised controversy, fueled by leaks of the draft text and congressional debate over fast-track negotiation authority. Like similar agreements, the TPP creates the risk of government liability for enacting regulations, especially new or comprehensive measures to address climate change. This Article analyzes how the TPP’s investor protection provisions and dispute settlement mechanism might be invoked to challenge climate change policy. The author concludes that the negotiators’ efforts to date are insufficient to protect climate measures from the risk of liability, and suggests reforms to the draft text.

How Much Does The Existing Regulatory Patchwork Reduce Greenhouse Gas Emissions?, Justin Gundlach

Sabin Center for Climate Change Law

This paper offers an answer to the question, “What levels of greenhouse gas (“GHG”) emissions reduction do the constituent programs in the U.S.’s existing regulatory patchwork achieve?” Its answer represents an attempt to measure the same effect from eight regulatory interventions: EPA’s Prevention of Significant Deterioration program, as it is expected to operate following the Supreme Court’s UARG v. EPA decision in 2014; EPA’s Clean Power Plan; EPA’s renewable fuel standard; the federal Corporate Average Fuel Economy standards for light, medium, and heavy duty vehicles; the renewable electricity generation Production Tax Credit and Investment Tax Credit; the Regional Greenhouse Gas …

Potential Liability Of Governments For Failure To Prepare For Climate Change, Jennier Klein

Sabin Center for Climate Change Law

This paper examines whether governments can expose themselves to potential legal liability by turning a blind eye to the accumulating risks of climate change. Specifically, the paper addresses potential claims sounding in negligence, fraud, and takings, describing the benefits and challenges of each theory. The paper explores ways to overcome a government’s claim of sovereign immunity in the context of a negligence claim, noting in particular the common government waiver of immunity for claims arising out of dangerous conditions of government owned property. The paper describes the challenges of bringing a claim for fraud where officials intentionally obscure relevant information …

Legal Tools For Climate Adaptation Advocacy: Flood Insurance, Matt Sienkiewicz

Sabin Center for Climate Change Law

This paper explores the impact that climate change will have on flooding and provides details on the operation and functions of the National Flood Insurance Program (NFIP). The paper then discuss the ways the current regime discourages adaptation to climate change, and offers suggestions for how readers can promote climate change adaptation by advocating for changes to the NFIP.

Federal Implementation Plans For Controlling Carbon Emissions From Existing Power Plants: A Primer Exploring The Issues, Daniel Selmi

Sabin Center for Climate Change Law

Much has been made of late about EPA’s authority to develop federal implementation plans (FIPs) to achieve the state-based GHG emissions reduction targets the agency is preparing establish under Clean Power Plan. Led by Senator Mitch McConnell, objectors have loudly urged states not to submit plans at all. Instead, they have argued, states need not be concerned about EPA imposing FIPs on their states. In turn, EPA has announced that it will release a draft federal implementation plan this summer.

Since 1970, Section 110 the Clean Air Act has required EPA to implement a FIP if a state implementation plan …

An Analysis Of Senator Mcconnell's Letter Urging States Not To Comply With Epa's Clean Power Plan, Daniel Selmi

Sabin Center for Climate Change Law

On numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by …

States Should Think Twice Before Refusing Any Response To Epa's Clean Power Rules, Daniel Selmi

Sabin Center for Climate Change Law

The date is approaching for EPA to finalize its rules for controlling carbon dioxide emissions from existing power plants, and states are contemplating their responses to those rules. A number of commentators have recommended that states “just say no” to EPA and refuse to prepare state plans complying with the rules. Some states are considering bills and a few have enacted laws that would make it difficult for their state environmental agencies to prepare responses that EPA could accept. In turn, EPA has announced it will release a “federal implementation plan” (FIP) for states that fail to submit legally adequate …

Authority Of Pacific Island States To Regulate Greenhouse Gases From The International Shipping Sector, Meredith Wilensky

Sabin Center for Climate Change Law

This white paper assesses Pacific island states’ legal authority under international law to regulate greenhouse gas emissions from the international shipping sector and considers what regulatory options are permissible within this legal framework.

State Hazard Mitigation Plans And Climate Change: Rating The States, Matthew Babcock

Sabin Center for Climate Change Law

Climate change is affecting and will continue to affect the frequency and severity of natural hazard events, a trend that is of increasing concern for emergency managers and hazard mitigation agencies across the United States. Proper response to these hazards will require preparation and planning. Unfortunately, states are not required to include analysis of climate change in their State Hazard Mitigation Plans, which leads to uneven treatment of the issue and missed opportunities for mitigation planning. This survey identifies those state plans that address climate change and climate-related issues in an accurate and helpful manner and those that do not. …

Encouraging Energy Efficiency Through The Clean Air Act, Moneen Nasmith

Sabin Center for Climate Change Law

Energy efficiency measures provide tremendous opportunities for achieving effective and cost-friendly reductions in the emissions of greenhouse gases. In the absence of more comprehensive legislative efforts, proponents of energy efficiency projects can look to existing environmental laws for tools to promote and encourage energy efficiency and conservation. One such law is the federal Clean Air Act (“CAA”), which empowers the U.S. Environmental Protection Agency (“EPA”) to use a variety of mechanisms to address air pollution and protect the public health. Although the statute and its accompanying regulations are complex, the CAA provides a number of important avenues for advocates of …

Federal Regulatory Barriers To Grid-Deployed Energy Storage, Andrew Meyer

Sabin Center for Climate Change Law

Until recently, the most advanced form of grid-deployed energy storage involved pumping water up a hill. But “newer storage technologies like flywheels and chemical batteries have recently achieved technological maturity and are well into successful pilot stages and, in some cases, commercial operation”. If widely adopted these new energy storage technologies will fundamentally alter the operation of our electricity system

Encouraging Energy Efficiency Through Nepa Comments, Adam Reidel

Sabin Center for Climate Change Law

Environmental impact statements (EISs) should analyze the potential for energy efficiency to reduce the adverse impacts of new projects, to make the projects smaller, or to provide more benign alternatives. The National Environmental Policy Act (NEPA) and its state counterparts require EISs for major actions, and provide numerous opportunities for public participation in the EIS process. These opportunities can be used to press for greater consideration, and perhaps adoption, of energy efficiency measures. This paper serves as a guide to commenting on and challenging EISs on the basis of insufficient consideration of the issues of energy efficiency and conservation. It …

Shopping For State Constitutions: Unequal Gift Clauses As Obstacles To Optimal State Encouragement Of Carbon Sequestration, Nicholas Houpt

Sabin Center for Climate Change Law

Carbon capture and sequestration technology (CCS) could drastically reduce CO2 emissions from coal-fired power plants, thereby mitigating climate change. CCS, however, faces a difficult barrier to market entry: liability for the technology’s many long-term risks. States would like to alleviate this long-term liability problem to capture CCS’s social benefits. Some state constitutions, however, have provisions called “gift clauses” that prohibit giving aid to private parties. This Note argues that some state constitutions’ gift clauses prevent indemnification of private CCS developers. As this Note’s fifty state survey shows, other state constitutions allow indemnification. This asymmetry in constitutionally-allowed financial encouragement results in …

Preemption And Alteration Of Epa And State Authority To Regulate Greenhouse Gases In The Kerry-Lieberman Bill, Bradford Mccormick, Hannah Chang

Sabin Center for Climate Change Law

The recently-released discussion draft of the Kerry-Lieberman bill (KL), officially titled the American Power Act, contains numerous provisions that affect the role of states in addressing climate change as well as the Environmental Protection Agency’s (EPA) authority under the Clean Air Act (CAA). Preemption has been the subject of intense debate and speculation since the passage of the Waxman-Markey climate bill (WM) in June 2009, and commentators have questioned whether KL’s preemption measures would (and should) have the effect of “a scalpel or a sledgehammer” on existing state and EPA authority. The following paper contributes to the discussion by summarizing …

Epa's Impending Greenhouse Gas Regulations: Digging Through The Morass Of Litigation, Gregory E. Wannier

Sabin Center for Climate Change Law

As the U.S. Congress has failed to pass meaningful climate legislation, the EPA has initiated a series of regulations under the Clean Air Act designed to recognize greenhouse gases as endangering human health and welfare, and set greenhouse gas emission standards for vehicle fleets and for major stationary sources. Unsurprisingly these efforts have been challenged in the DC Circuit Court of Appeals. This paper discusses both the substantive and procedural issues surrounding the cases, all of which merit attention: in the absence of viable climate legislation these decisions will have important bearing on the extent to which the United States …

The Epa’S Proposed Transport Rule: Implications For Climate Change Regulation, Jessica A. Wentz

Sabin Center for Climate Change Law

On July 6, 2010, the U.S. Environmental Protection Agency (EPA) proposed a Clean Air Act rulemaking to reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from power plants in the eastern United States. If it survives legal scrutiny, the rule will impose a hybrid cap-and-trade program with state-specific SO2 and NOx emission budgets and limited interstate trading. This paper discusses the rule's requirements, how it compares to its predecessor (the Clean Air Interstate Act), the projected impact on air quality and public health, and implications for future climate change policy.

Cap-And-Trade Under The Clean Air Act?: Rethinking Section 115, Hannah Chang

Sabin Center for Climate Change Law

Section 115 of the Clean Air Act, addressing international air pollution, is widely-dismissed as a viable avenue for mitigation of greenhouse gases (GHGs) because of a misplaced assumption that National Ambient Air Quality Standards (NAAQS) must be established for GHGs before Section 115 authority can be exercised for GHGs. This paper explores the statutory language and legislative history of Section 115 to refute this conventional view, and argues that Section 115 can play a role in facilitating the establishment of a cap-and-trade program for GHGs without the establishment of NAAQS for GHGs.

The Costs Of Carbon: Examining The Competitiveness And International Trade Dimensions Of The Waxman-Markey House Bill, Svetlana German

Sabin Center for Climate Change Law

As the United States considers unilateral climate change action, uncertainty exists as to the compatibility of the proposed trade related measures to global warming. This paper considers the rationale behind any trade measures designed to address competitiveness and carbon leakage following the introduction of unilateral climate change legislation (Part I). The paper then assesses the international legality of the proposed measures in the Waxman-Markey Bill under World Trade Organisation (WTO) law (Part II) and proposes alternative mechanisms that may yield economically sound solutions while remaining mindful of equitable principles (Part III).