Law Commons^™

Survey Of 2016 Cases Under New York State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases in 2016 under the New York State Environ­mental Quality Review Act (SEQRA), which requires the preparation of an environmen­tal impact statement (EIS) for state or local governmental actions that could have a significant impact.

For only the second time since this annual survey began in 1991, no court overturned any agency decision where an EIS had been prepared. Eight challenges involved an EIS – all failed. In circumstances where there was no EIS, challeng­ers won four and lost 20. In sum, 2016 was a bad year for plaintiffs in SEQRA cases.

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.

Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard

Faculty Scholarship

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to …

Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard

Faculty Scholarship

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered …

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.

Research Governance, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Forthcoming in Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal (Michael B. Gerrard & Tracy Hester, eds.), this chapter approaches the complex topic of climate engineering research governance in four Parts.

Part I describes the forms research has taken so far and those that are expected in the future. It also offers short summaries of five instances of climate engineering field research conducted since 2009. Part II considers the key issues and concerns that have prompted calls for governance and that have inspired sometimes heated debate of what it should involve. Part …

Using Online Databasing To Unlock The Full Value Of Environmental Impact Assessments, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper considers how a multi-disciplinary research community can build upon these efforts to further enhance online access to EIA documents and make it easier for the public to use the information contained in those documents. Part I lays the groundwork for this inquiry: it describes the types of information contained in EIA documents and the extent to which existing online databases provide an effective means of locating and searching through these documents. Part II discusses the potential applications of the information contained in these documents, and how this might inform priorities related to online database development. Part III contemplates …

Sea-Level Rise And Changing Times For Florida Local Governments, David Markell

Sabin Center for Climate Change Law

The legal environment for local government in Florida is beginning to change when it comes to sea-level rise (sometimes referred to as SLR). Innovations in institutional structure and governance strategies are underway in the State as well. This paper reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others. It begins with the State’s decision, in 2011 legislation, to give local governments a new, optional tool – referred to as “Adaptation Action Areas” (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The …

Climate Change And Sustainable Development In Brazilian Law, Gabriel Wedy

Sabin Center for Climate Change Law

This article aims to explain briefly how the National Policy for Climate Change (NPCC) in Brazil - established by Act 12.107/2009 – is structured. This Act will be critically analyzed according to what is being currently discussed on Climate Change Law, both globally and within the United States.

It will also seek to demonstrate the importance of the constitutional principle of sustainable development provided for in the Brazilian Federal Constitution in order to correct omissions and imperfections of the National Policy for Climate Change, whenever it is subject to interpretation and implementation by the Judiciary branch, the Executive branch and …

A Mitigation Based Rationale For Incorporating A Climate Change Impacts Fee Into The Federal Coal Leasing Program, Michael Burger

Sabin Center for Climate Change Law

This paper describes the legal and policy rationale for imposing a fee on federal coal that reflects the costs of the climate change impacts generated by that coal. It notes that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this …

Considering The Effects Of Climate Change On Natural Resources In Environmental Review And Planning Documents: Guidelines For Agencies And Practitioners, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper describes how climate change will affect natural resources in the United States, and explains why consideration of how climate change will affect those resources is necessary in order to fulfill legal requirements under NEPA and other statutes governing the management of these resources. It also presents examples of how climate change has been meaningfully accounted for in environmental review and planning documents. The accompanying protocol contains guidelines for considering the impacts of climate change in environmental reviews as well as other planning documents (e.g., resource management plans and resource assessments).

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Sabin Center for Climate Change Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

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 …

Integrating Climate Change Resilience Into Hud’S Disaster Recovery Program, Justin Gundlach, Channing R. Jones

Sabin Center for Climate Change Law

The Department of Housing and Urban Development (HUD)’s community development block grant disaster recovery program (CDBG-DR) can better and more clearly incorporate climate resilience and adaptation priorities. This article identifies and analyzes the statutes that have guided HUD's approach to disaster recovery to date, as well as forms of “soft guidance” issued by HUD for use by various stakeholders, including both HUD CDBG-DR program officers and the state and local officials that interact with them. Comparing these materials reveals a tension between the requirement that all projects funded by CDBG-DR “tie back” to the most recent disaster, and the logic …

La Victoria De Urgenda: El Inicio De La Lucha Judicial Frente Al Cambio Climatico, Teresa Parejo Navajas

Sabin Center for Climate Change Law

La Sentencia del Tribunal del Distrito de La Haya de junio de 2015, por medio de la cual se obliga al gobierno de los Países Bajos a adoptar una política de mitigación más ambiciosa, ha supuesto una noticia inesperada y valiente que, sin perjuicio de su – en algunas ocasiones – débil argumentación, supone un importantísimo avance en la lucha contra el cambio climático.

Abstract in English
The ruling of The Hague District Court of June 2015 forces the Dutch government to implement a more ambitious mitigation policy in order to comply with its duty of care. This unexpected and …

Legal Tools For Climate Adaptation Advocacy: The Electric Grid And Its Regulators – Ferc And State Public Utility Commissions, Payal Nanavati, Justin Gundlach

Sabin Center for Climate Change Law

The electric grid connects electricity generators to consumers. State and federal regulators are tasked with ensuring that consumers have access to safe and reliable electricity at just and reasonable rates. The requirements of this task have and will continue to transform as technologies change and as the impacts of climate change alter the context in which the electric grid operates. Thus, regulators who make adapting to climate change a priority will better fulfill their mandate to ensure that utilities provide consumers with safe and reliable electricity at just and reasonable rates. Yet some regulators do not recognize how closely adaptation …

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate …

Sadly, The Paris Agreement Isn't Nearly Enough, Michael B. Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa, and other parts of the continent.

Three Major Developments In International Climate Change Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The past month has seen a remarkable set of developments at the international level in controlling greenhouse gas (GHG) emissions – the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofluorocarbon emissions and pollution from airplanes. The stunning election of Donald Trump on Tuesday casts the future of some but not all of these efforts into doubt, however.

Effect Of The Paris Climate Agreement On U.S. Businesses, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In December, 195 countries convened in Paris for the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change. To the surprise and delight of most of the participants, the conference ended in consensus among all the participants on a document, the Paris Agreement, that will be opened for signature on April 22, 2016. President Barack Obama has indicated that the United States will sign it. (Co-author Michael Gerrard participated in the conference.)

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.

Designing A Climate Change Displacement Coordination Facility: Key Issues For Cop 21, Jessica A. Wentz, Michael Burger

Sabin Center for Climate Change Law

There have been several proposals to include a “climate change displacement coordination facility” in the upcoming UNFCCC agreement, but there has been very little public discussion about what this facility would entail and how it would operate. This briefing note highlights some of the functions that the displacement coordination facility could fulfill, as well as some key questions for negotiators in the lead-up to COP 21 and subsequent talks. The note is not intended to be a proposal for how the facility should operate, nor do the functions highlighted below necessarily reflect what is politically or economically feasible. Rather, the …

Electricity Sector Adaptation To Heat Waves, Sofia Aivalioti

Sabin Center for Climate Change Law

Electricity is very important for human settlements and a key accelerator for development and prosperity. As heat waves become more frequent and intense the reliability and efficiency of the electricity systems is threatened. Increased temperatures have adverse effects on electricity generation, transmission, distribution and demand. The high temperatures cause intentional or unintentional brownouts and blackouts, which come at high costs for people and economies. The case studies in this analysis highlight the importance of heat wave impacts to the electricity sector and the need for adaptation. The electricity sector requires a holistic approach for adaptation that comprises technological, behavioral and …

A Legal Approach To The Improvement Of Energy Efficiency Measures For The Existing Building Stock In The United States Based On European Experience, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

Energy consumption in buildings is on the rise and represents almost half of the total greenhouse gas emissions in cities, which are the main cause of global warming on the planet. There is a great scientific consensus that improving energy efficiency of building systems and operations is a very effective way to tackle this important problem. However, despite the fact that the existing building stock has the greatest potential for greenhouse gas emission reduction, most laws and regulations have focused primarily on new buildings. Hence, improving energy efficiency in existing buildings represents a great opportunity for reducing greenhouse gas emissions …

Climate Change And Human Rights, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

This report, commissioned by the United Nations Environment Programme (UNEP), describes the nexus between climate change, environmental degradation, and the impairment of fundamental human rights, such as the rights to food, water, housing, and life. It explains how governments and other actors can address climate change in a manner consistent with their obligations to respect, protect, promote and fulfill human rights. The report was released during COP21 to help inform the development of the Paris Agreement.

Assessing The Impacts Of Climate Change On The Built Environment Under Nepa And State Eia Laws: A Survey Of Current Practices And Recommendations For Model Protocols, Jessica A. Wentz

Sabin Center for Climate Change Law

Federal agencies are beginning to incorporate descriptions of climate change impacts into environmental reviews for buildings and infrastructure, but there is no consistent methodology for evaluating these impacts and mitigating any foreseeable risks to the project or affected environment. This Article asserts that an assessment of climate-related risks and adaptation options falls within the scope of considerations that should be addressed under the National Environmental Policy Act and similar laws. It concludes with a set of recommended protocols for identifying the impacts of climate change on projects and their affected environment, evaluating physical and environmental risks, and selecting appropriate mitigation …

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 …

Sustainable Development And The Brazilian Judge, Gabriel Wedy

Sabin Center for Climate Change Law

This article explores how Brazilian judges have used their authority to promote the environmental, social, economic, and, in particular, governance aspects of sustainable development. Through their decisions, judges have guaranteed Brazilian citizens important rights, which are stated in the progressive Constitution of 1988, drawn up after 20 years of military dictatorship. The citizen’s rights to medical treatment, medicine, surgery, housing and access to education are frequently guaranteed by judicial decisions.

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 …