Digital Commons Network^™

Compilation Of Recommendations To Reduce Greenhouse Gas Emissions In New York State, Kate Marsh, Neely Mckee, Jordan Gerow

Sabin Center for Climate Change Law

The Climate Leadership and Community Protection Act (CLCPA) was passed by both houses of the New York State legislature and signed into law by Governor Andrew Cuomo in June 2019. It took effect on January 1, 2020. It requires total statewide greenhouse gas (GHG) emissions to be 40% below 1990 levels in 2030 and 85% below 1990 levels in 2050, with an aspirational goal of a 100% reduction in 2050. It is one of the strongest climate change laws in the world, and people everywhere are watching its implementation for models of what can be done elsewhere.

The CLCPA establishes …

Determining Climate Responsibility: Government Liability For Hurricane Katrina?, Teresa Chan, Michael Burger, Vincent Colatriano, John Echeverria

Sabin Center for Climate Change Law

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes. The U.S. Court of Appeals for the Federal Circuit disagreed, however, noting that the government cannot be liable on a takings theory for inaction, and that the government action was not shown to have been the cause of the flooding. On September 6, 2018, the Environmental Law Institute hosted an expert panel to explore this ruling and its potential implications for future litigation in a …

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 …

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 …

Prison Preparedness And Legal Obligations To Protect Prisoners During Natural Disasters, William Omorogieva

Sabin Center for Climate Change Law

Since at least 2004, the intensity of hurricanes and the damage they have caused in America has increased significantly. After the turbulent hurricane season of 2017, citizens should recognize the elevated risks to safety that occur when individuals stay put, especially during high-intensity hurricanes (Category 3 and higher). States of emergency and evacuation orders have been declared recently in many states and cities that anticipated extreme hurricane conditions. However, even with increased calls for evacuations, warnings from public officials, and around the clock media coverage, a significant portion of the population has continued to be overlooked during times of natural …

Holding Fossil Fuel Companies Accountable For Their Contribution To Climate Change: Where Does The Law Stand?, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

The judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain.

10 Questions To Ask About The Proposed “Global Pact For The Environment”, Susan Biniaz

Sabin Center for Climate Change Law

There is no doubt that more needs to be done, both nationally and internationally, to protect the environment. It is tempting, particularly during the Trump era, to welcome any concerted effort to do so. The issue is whether the proposed “Global Pact” is the right vehicle for enhancing environmental protection.

The Global Pact was launched this past June in Paris, with support from, among others, President Macron of France and former California Governor Arnold Schwarzenegger. At least in its preliminary state, the Pact reflects broad, cross-cutting principles in legally binding form. France intends to seek support at the upcoming UN …

Climate Legislation And Litigation In Brazil, Gabriel Wedy

Sabin Center for Climate Change Law

Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%.

This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil.

Putting Green Infrastructure On Private Property In New York City, Justin Gundlach

Sabin Center for Climate Change Law

New York City, like other cities that built combined sewer systems in the early twentieth century, is embarking on the reconfiguration of its approach to stormwater management – one that shifts away from exclusive reliance on “grey infrastructure” (asphalt, pipes, tunnels, sea walls) to greater reliance on “green infrastructure” (green roofs, bioswales, rain gardens, permeable pavements, coastal wetlands). That reconfiguration will entail physical changes as well as changes to the regulation and financing of stormwater management. And, underlying these physical, regulatory, and financial changes is New Yorkers’ role in managing and paying for stormwater runoff – that too must change …

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 …

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.

Hud Doesn't Need New Legislative Authority To Better Integrate Climate Change Resilience Into Its Disaster Recovery Program, Justin Gundlach, Channing R. Jones

Sabin Center for Climate Change Law

This article examines the interaction between the Department of Housing and Urban Development (HUD)’s community development block grant disaster recovery program (CDBGDR) and the federal and state governments' resilience and climate adaptation priorities. It identifies and analyzes the statutes that have guided HUD's approach to date, by considering both key statutory language and legislative history. It also examines 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. In reviewing this material, the article identifies a tension between the requirement that all …

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.

Narratives In Conflicts: Alaska Natives And Offshore Drilling In The Arctic, Michael Burger

Sabin Center for Climate Change Law

This Symposium Essay examines and elucidates the ways in which the narrative constructions that constitute the “imaginary Arctic” factor into litigation surrounding Shell Oil’s highly controversial attempts to drill for oil and gas in the Beaufort and Chukchi seas off Alaska’s North Slope. Judges, lawyers and litigants involved in the Shell litigation have deployed a number of well-established storylines against each other: the Arctic as Classical Frontier, the Arctic as Spiritualized Frontier, the Arctic as Ancestral Homeland, the Arctic as Developing World, and the Arctic as Neutral Space. The litigation literature produced by this “battle for the Arctic” offers an …

Recovering From The Recovery Narrative: On Glocalism, Green Jobs And Cyborg Civilization, Michael Burger

Sabin Center for Climate Change Law

In this Essay, I make a preliminary foray into new narrative terrain, identifying several emerging legal storylines that have arisen in the wake of climate change disruptions and that I predict will prove influential in the coming years. In Part I, I discuss the ways in which new perceptions of scale are re-defining human beings' attachments to a sense of "place" or "dwelling" and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes. In Part II, I discuss the ways in which America's long history of nationalizing nature manifests in the discourse surrounding …

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. …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Teaching Intrapersonal Intelligence As A Lawyering Skill: Introducing Values Systems Into The Environmental Law Syllabus, Michael Burger

Sabin Center for Climate Change Law

The ranges and types of problems with traditional law school curricula, pedagogies, and learning cultures are well-rehearsed, and have been framed, narrated, and analyzed in a number of prominent venues, along with suggested improvements and proposals for systemic reform. This Essay addresses one aspect of the ongoing and pervasive critique: the need to develop in law students the diverse intellectual competencies that the practice of law requires. Working within the framework of Professor Howard Gardner’s theory of multiple intelligences, I argue that intrapersonal intelligence and the self-reflexive analytic process it invokes are important tools in the practicing lawyer’s toolbox, and …

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …

Confronting A Rising Tide: A Proposal For A Convention On Climate Change Refugees, Bonnie Docherty, Tyler Giannini

Sabin Center for Climate Change Law

This Article proposes a new legal instrument to confront the issue of climate change refugees. It defines climate change refugees as people whom climate change forces to relocate across national borders. The existing international legal framework – including its laws and its institutions – does not adequately address the emerging crisis. The proposed instrument should create obligations to deal with both prevention and remediation of the climate change refugee problem. First, the instrument should establish guarantees of human rights protections and humanitarian aid for a specific class of people. Second, it should spread the burden of fulfilling those guarantees across …

Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger

Sabin Center for Climate Change Law

Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …

Ecology And The Jewish Spirit: Where Nature And The Sacred Meet, Michael Burger

Sabin Center for Climate Change Law

It's a real shame, but all political and social movements, at some point, break up into factions. The factions debate their relative necessity, claim authority over areas of discourse and action, and generally vie for power. They stop coordinating and communicating with each other. There are occasional acts of sabotage. The competition of the market economy (including the grant-funded non-profit sector) and the expanse of human vanity demand this distinction. Everyone needs to find their niche. An ecologist understands this as well as an economist, an activist as well as a lobbyist, a rabbi as well as a lawyer.