Law Commons^™

Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan

Faculty Scholarship

A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships …

In California And Europe, A New Dawn For Corporate Climate Disclosure, Magali Delmas, Michael B. Gerrard, Eric Orts

Faculty Scholarship

The Securities and Exchange Commission (SEC) is expected to finalize a new rule this month to cover required corporate climate disclosures by public-reporting companies. But the bigger news is that California Gov. Gavin Newsom (D) has announced that he will soon sign into law two climate change disclosure bills passed by the state Legislature.

Potential Tensions Between New York’S Climate Change Laws And Historic Preservation Laws, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

For many years, designated historic buildings have been exempt from most energy conservation codes. However, with increased attention to the perils of climate change, some cities – including New York – are adopting strong laws on building energy use that do not have this exemption. Historic preservation laws that have not caught up, and some fire codes, may pose obstacles to the installation of rooftop solar and some other methods to reduce building energy consumption.

New York Can Lead World In Fighting Climate Change, Michael B. Gerrard

Faculty Scholarship

New York State now has one of the strongest climate change laws in the world, and if we succeed in implementing it, the state will have demonstrated that it is possible to defeat what may be the greatest threat facing humanity.

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

Going Negative: The Next Horizon In Climate Engineering Law, Tracy Hester, Michael B. Gerrard

Faculty Scholarship

As the global community struggles to turn the Paris Agreement’s commitments into meaningful emission reductions and the United States turbulently reverses its climate policies, the potential role of “negative emissions technologies” and other climate engineering approaches is drawing increasingly serious attention. These technologies are engineering on the grandest scale: climate engineering seeks to offset the effects of anthropogenic climate change by either altering the solar radiation reaching the earth’s surface or changing the composition of the atmosphere itself. Specifically, negative emissions technologies would directly remove greenhouse gases (GHGs) from the ambient air and help to remove accumulated atmospheric carbon dioxide …

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

Faculty Scholarship

At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of …

Sequestering Carbon Dioxide Undersea In The Atlantic: Legal Problems And Solutions, Michael B. Gerrard, Romany M. Webb

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 injected into underground geological formations (e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs) where it will hopefully remain permanently sequestered. This injection process is referred to as …

Preparing Clients For Climate Change, Michael B. Gerrard

Faculty Scholarship

The United Nations Climate Change Conference in Paris in December 2015 was rightly hailed as a diplomatic triumph. After years of preparation and two weeks of hard bargaining, 195 nations agreed on a framework for reducing greenhouse gas (GHG) emissions and heading off the worst impacts of climate change. Two implications of the Paris agreement were less heralded:

1. If nations (including the United States) fulfill the voluntary pledges they made, they will embark on a massive transition away from fossil fuels and toward clean energy, including programs of unprecedented magnitude to build renewable energy facilities.
2. Even if all nations do …

Climate Litigation Scores Successes In The Netherlands And Pakistan, Michael B. Gerrard

Faculty Scholarship

Most U.S. climate change litigation falls into one of two categories. The vast majority of cases — which receive the bulk of the attention — are based on the Clean Air Act and other statutes. These include Massachusetts v. Environmental Protection Agency (2007) and the current litigation over the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan. The second category, and the focus of this article, comprises cases based on common law and the Constitution.

Review Of Benjamin K. Sovacool And Michael H. Dworkin's Global Energy Justice: Problems, Principles, And Practices, Michael B. Gerrard

Faculty Scholarship

Energy powers the world. Having enough energy is essential to maintaining even the most minimal quality of life. But extracting and using energy renders some places uninhabitable, and now threatens the ecological integrity of the planet.

Current energy systems involve profound injustices. These injustices can arise in the ways that energy is produced – including through local and global environmental degradation, human rights abuses, corruption, and social and military conflict. Injustice can also arise in the ways that energy is or is not available – with more than a billion people having far too little for a decent existence, while …

President Obama Tackles Climate Change Without Congress, Michael B. Gerrard

Faculty Scholarship

With a majority of the House of Representatives hostile to regulatory action on climate change, President Obama announced in his January 2013 State of the Union address, and again shortly thereafter in his second inaugural address, that he would use his existing statutory authority to move on what he called a threat to future generations. The president followed through on June 25 with a detailed action plan.

This article describes the principal elements of The President's Climate Action Plan and the progress so far in implementing it.

Michael Bloomberg's Environmental Record, Bill De Blasio's Promises, Michael B. Gerrard

Faculty Scholarship

On Nov. 23, 2001, under the headline “Michael Bloomberg’s Environmental Agenda,” this column began, “The stun­ning victory of Michael R. Bloomberg in the Nov. 6 election means that City Hall will be occupied by a man who has no record in environmental affairs.” The column went on to summarize the promises found in Bloomberg’s campaign literature and other statements.

Now with Mayor Bloomberg’s term about to end and Bill de Blasio’s about to begin, we can compare the outgoing mayor’s accomplishments to his promises, and also look at what the incom­ing mayor has pledged.

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

What Does Environmental Justice Mean In An Era Of Global Climate Change?, Michael B. Gerrard

Faculty Scholarship

The 1990s saw the emergence of the issue of environmental justice – the disproportionate exposure of low-income and minority communities to environmental hazards - into the U.S. political sphere. The 2000s saw the emergence of global climate change as a political concern. Neither has led to significant legislation at the federal level, and thus old laws designed for different purposes are being utilized with decidedly mixed results.

This article addresses the confluence of environmental justice and global climate change. The two interact in complex ways, as do the approaches to dealing with them both.

The magnitude of the climate challenge …

What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard

Faculty Scholarship

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In …

'American Electric Power’ Leaves Open Many Questions For Climate Litigation, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut, the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open.

United States Of America, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

The prospect of carbon liability in the United States is a relatively recent phenomenon. It is only in the last decade that US environmental lawyers and policy-makers have begun to turn their attention to climate change, as climate-related litigation has surged, government action on several fronts has begun, and climate change has generally been recognised as a factor to consider in decision-making across the economy. This chapter lays out existing options to establish liability for greenhouse gas (‘GHG’) emissions along legislative, regulatory and judicial channels.

Introductory Comments: The Current State Of Climate Change Law, Michael B. Gerrard

Faculty Scholarship

The three words that best characterize the current state of climate change law are fragmentation, uncertainty, and insufficiency.

Greenhouse Gas Disclosure Requirements Are Proliferating, Michael B. Gerrard

Faculty Scholarship

While climate change legislation is mired in Congress, several units in the Obama administration have been using their existing statutory authority to adopt rules or guidance requiring extensive disclosures about greenhouse gases (GHGs) in a wide variety of contexts. Every registered public company, the operators of many industrial facilities, and those involved in significant federal actions are now or will soon be covered by one or more of these requirements.

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Comment On Developing A Comprehensive Approach To Climate Change Mitigation Policy In The United States: Integrating Levels Of Government And Economic Sectors, Michael B. Gerrard

Faculty Scholarship

The article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach (PM&D) has two central insights: (1) Any serious national effort to control emissions of greenhouse gases (GHGs) must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. A portfolio approach that utilizes many different regulatory techniques is important.

I certainly agree with PM&D about these insights, and they are correct that much of the current Congressional debate has given too little attention to these considerations. However, I have serious reservations about …

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …

Financial Disclosure Of Risks Related To Global Climate Change, Michael B. Gerrard, Christopher Anderson

Faculty Scholarship

Securities and Exchange Commission (SEC) regulations require publicly traded companies to disclose the material impacts of environmental laws on their business. Increasing attention is being paid to the issue of securities disclosure of financial risks and opportunities posed by impending regulation relating to global climate change and by climate change itself.

Mccain Vs. Obama On Environment, Energy, And Resources, Michael B. Gerrard

Faculty Scholarship

For the first time in living memory, the environment is receiving significant attention in a presidential election. Both Senator John McCain (R-AZ) and Senator Barack Obama (D-IL) have given speeches and run television advertisements on the issue and (after a slow start) are being asked questions by the national press about where they stand on climate change and energy.

This article compares the actions and positions of the two candidates on environmental, energy, and resources issues. It begins by looking at their voting records, presents their endorsements and campaign contributions, and then discusses their positions as shown in their campaign …

Climate Change And The Environmental Impact Review Process, Michael B. Gerrard

Faculty Scholarship

In the explosion of modern environmental law that occurred in the 1970s, the first major statute was the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, signed into law by President Richard M. Nixon on January 1, 1970. It spawned "little NEPAs" in about twenty-five states and eighty countries. Council on Environmental Quality, The National Environmental Quality Act: A Study of Its Effectiveness After Twenty-Five Years (1997). All of these laws were designed to require governments to consider environmental issues in their decisions. The chief mechanism of NEPA and its state equivalents is the preparation of environmental impact statements …

Seqra And Climate Change, Michael B. Gerrard

Faculty Scholarship

New York's State Environmental Quality Review Act (SEQRA) is the centerpiece of environmental decision-making in the state. It requires state and local agencies to prepare environmental impact statements (EISs) for actions that could significantly affect the environment. SEQRA has become the principal framework for the identification and mitigation of environmental impacts.

The text of SEQRA provides that EISs should discuss the "effects of the proposed action on the use and conservation of energy resources, where applicable and significant." EISs under SEQRA are also required to consider, among many other things, a project's effects on air pollution. Since the main source …

Survey Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending.

Much attention has deservedly gone to the U.S. Supreme Court’s decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting.

This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those …