Law Commons^™

Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

While internationally Paraguay is known for being the largest hydropower exporter in the world, the domestic economy suffers from regular outages and high system losses. The country is largely dependent on agricultural production, which has led to volatile economic performances in the past resulting from climatic circumstances and commodity price fluctuations. To address these two key policy challenges, the Government of Paraguay has approached The Earth Institute to: 1) explore the potential of a climate risk management system and sustainable agriculture activities to mitigate environmental vulnerability and 2) develop a high-level strategic plan to use Paraguay’s vast hydropower resources for …

Why The Extractive Industry Should Support Mandatory Transparency: A Shared Value Approach, Julien Topal, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The Transparency Amendment, included in the Dodd‐Frank Wall Street Reform and Consumer Protection Act, can be an important tool in curtailing the resource curse that so heavily burdens resource‐rich developing countries by shedding light on opaque payments between the extractive sector and host countries. From the get‐go, however, extractive industry companies have fiercely opposed the new mandatory disclosure requirements as set out in this regulation. The corporate opposition is for the largest part motivated by the fear of a competitive disadvantage that derives from the fact that the amendment is housed with the Securities and Exchange Commission (SEC) and thus …

Memo To The Obama Administration On The Burma Responsible Investment Reporting Requirements, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2013, CCSI sent a memo to President Obama and his Administration in response to the first public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements. The memo applauded the U.S. Government’s efforts to encourage responsible investment in Burma, noting that robust due diligence is essential to ensuring that international investments contribute to sustainable development. Yet the memo also urged the Obama Administration to take steps to strengthen future reporting. In particular, CCSI urged the Administration to issue clarifying guidance that any U.S. investor submitting a report should (1) provide information on due …

On Solid Ground: Toward Effective Resource-Based Development, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The small island-state of Timor-Leste exemplifies the challenge of resource-based development for a poor country well-endowed with a valuable natural resource. Timor-Leste, which gained its independence in 2002, has accumulated $13 billion in its petroleum fund in less than a decade. Some of the largest multinational oil companies are operating in the country, and the revenues continue to flow. And yet, while Timor-Leste has seen very notable improvements in its development indicators in the past few years, it continues to face a massive challenge of converting financial wealth into economic development. There are also heated debates about how to spend …

Community Development Funds And Agreements In Guinea Under The New Mining Code, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Guinea’s 2011 Mining Code introduced a large number of reforms directed to increasing transparency and the contribution of the mining sector to development, including requirements for the establishment of a local development fund and for community development agreements between mining companies and local communities. As part of the legal and fiscal analysis of the gold mining investments in Guinea, CCSI examined how these provisions could be implemented effectively. CCSI produced a report that makes recommendations as to how the Government, mining companies, civil society and communities can work together to maximize the benefits of local development funding in the Guinean …

Great Debate: Mining In Latin America, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Mining represents a great opportunity for economic growth, especially for emerging economies. It is often seen as the path to prosperity. However, the mining industry is a double edged sword. Countries in Latin America are managing to attract significant foreign investment. In Chile, the extractive sector’s participation in the economy has tripled in the last 10 years, reaching 15% of GDP. In Colombia and Peru, it has doubled to 10% of GDP. The Santos administration in Colombia has made mining one of its top policy priorities.

However, there may be significant downsides to mining, as governments are forced to offer …

Shared-Use Infrastructure: A Prickly Partnership Takes Root, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Only about 30% of Africa has access to electricity, and transport costs in Africa are among the highest in the world. For the World Bank, the annual funding gap for infrastructure investment in Africa is US $31 billion.

This gap however can be filled if the investments of natural resource concessionaires are leveraged and not planned in an enclave model. In resource-rich but infrastructure-poor Africa, natural resource concessionaires have traditionally developed railways, ports and power plants to serve their own needs. Africa has therefore often missed the opportunity of coordinating those large investments with national infrastructure planning and has failed …

Ask The Experts: Mining, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

How can governments best ensure mining produces broad-based economic development?

At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.

Legal Issues In Integrated, Multi-Pollutant Planning For Energy And Air Quality, Shawna Ganley, Shelley Welton

Sabin Center for Climate Change Law

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in …

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?

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States has surpassed Russia as the world's top natural gas producer, and according to the world's most respected energy forecaster, the U.S. will also overtake Saudi Arabia as the largest oil producer by 2020. This surge in U.S. oil and gas production would have seemed wildly improbable a decade ago. It flows from a revolution in U.S. oil and gas production. Energy companies have learned to tap previously inaccessible oil and gas in shale and other impermeable (or "tight") rock formations. To do so, they use "hydraulic fracturing" ("fracturing" or "fracking"), pumping fluid into shale at high pressure …

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. …

Fracking And Federalism Choice, Michael Burger

Sabin Center for Climate Change Law

In response to David B. Spence's "Federalism, Regulatory Lags, and the Political Economy of Energy Production," I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that …

"Green" Product Procurement Policy In The European Union: Treatment Of Lifecycle Carbon Analysis And Environmental Ppm Restrictions, Shawna Ganley

Sabin Center for Climate Change Law

With approximately 19% of the EU’s GDP going to government purchases, “green procurement” policies could potentially have a sizable impact on carbon emissions, and moreover could bolster the larger consumer market for sustainable goods. This white paper reviews current EC policy in this area, focusing particularly on the way in which the EC treats lifecycle analysis and non-product related “process and production methods” (PPMs), criteria that relate to the way in which the product was produced rather than to the physical properties of the final product. The paper also addresses some of the factors that may have stymied better uptake …

Envisioning Resilient Electrical Infrastructure: A Policy Framework For Incorporating Future Climate Change Into Electricity Sector Planning, Sam C.A. Nierop

Sabin Center for Climate Change Law

Climate change needs to be incorporated in future designs of the electricity sector. This paper argues for a policy framework in which utilities take the lead by performing an electrical climate change impact assessment that evaluates to what extent utilities’ electrical assets are vulnerable to future climate change. Based on this assessment, electrical climate change adaptation plans should be formulated by the utility in cooperation with utility regulators, municipalities and supralocal governments. A collaborative process is essential, because adaptation measures need to be tailored to the regional circumstances and many types of adaptation measures require governmental approval. In order for …

Will Greenhouse Gas Rules Prohibit New Coal Power Plants?, Christine Fazio, Ethan Strell

Sabin Center for Climate Change Law

Our article on June 28, 2012, discussed a proposed rule by the U.S. Environmental Protection Agency (EPA) that would limit, for the first time, carbon dioxide (CO2) emissions from new fossil fuel-fired power plants. The proposal’s standard was based on the emissions of new natural gas-fired combined-cycle power plants. In order to meet the standards, new coal-fired plants would need to employ costly and untested carbon capture and storage (CCS) technology. The proposal was criticized by supporters of the coal industry because the standard would essentially prevent any new coal-fired power plants from receiving Clean Air Act (CAA) construction permits. …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

Red China Going Green: The Emergence And Current Development Of Carbon Emissions Trading In The World's Largest Carbon Emitter, Xiaotang Wang

Sabin Center for Climate Change Law

This paper focuses on one of China’s efforts to engage with climate change—the establishment and development of carbon emissions trading schemes (ETSs) in the country. Section II examines the shift from command and control approaches to market mechanisms in China’s climate policy over the past two decades, which primed the domestic scene for the emergence of carbon emissions trading. Section III studies the seven regional ETS pilots due to launch later this year, the success or failure of which will to a large extent determine the future of carbon markets in not only China, but most likely the rest of …

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.

Compilation Of International Authorities Supporting Specific Measures To Combat Climate Change, Fiona Kinniburgh

Sabin Center for Climate Change Law

This document is a compilation of international authorities that endorse or require various specific measures to combat climate change. The document comprises a non-exhaustive compilation of extracts from various international agreements, environmental treaties and resolutions / declarations of international organizations, as well as reports from several respected international bodies. While the UNFCCC, the Kyoto Protocol and decisions of the Conference of the Parties contain the most authoritative and directly applicable obligations regarding climate change, other international conventions, declarations, agreements and charters also give legal support for some of these specific measures.

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

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 …

Discussion Of Climate Change-Related Water Impacts In Federal Environmental Impact Statements (Eiss), January-September 2012, Cathy Li

Sabin Center for Climate Change Law

Climate change and its predicted effect on precipitation, temperature, storm frequency and intensity, global sea levels, and numerous other factors will pose significant challenges for the maintenance and operations of built infrastructure. Climate change is predicted to exacerbate water-related issues, such as water supply shortages brought on by increasingly severe droughts and more frequent or intense flooding caused by extreme precipitation events. Executive Order 13514 and subsequent instructions from the Council on Environmental Quality (CEQ) have directed federal agencies to prepare for and adapt to the changing environment in which they will have to operate. The National Environmental Policy Act …

Federal Executive Actions To Combat Climate Change, Michael B. Gerrard

Faculty Scholarship

“I urge this Congress to pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won’t act soon to protect future generations, I will. I will direct my cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
—President Barack Obama State-of-the-Union Message Feb. 12, 2013

In the current partisan atmosphere in Washington, there appears to be …

Reducing Legal Hurdles To Combined Heat And Power In New York, Michael B. Gerrard

Faculty Scholarship

Combined heat and power (CHP or cogeneration) is the simultane­ous production of electricity and thermal energy from a single fuel source. Most CHP systems in New York City use natural-gas fired turbines or reciprocating engines to generate electric­ity and then capture heat from the com­bustion generator’s exhaust stream and cooling systems.

The Opportunities For And Hurdles To Combined Heat And Power In New York City, Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi

Faculty Scholarship

This paper first seeks to quantify the potential for CHP development in New York City and describe the primary hurdles to optimal deployment in Parts I and II. Part III provides policy solutions for overcoming these hurdles and recommendations for how stakeholders can use information and analysis to maximize the opportunities for CHP.

Some Pluralism About Pluralism: A Comment On Hanoch Dagan's "Pluralism And Perfectionism In Private Law", Jedediah S. Purdy

Faculty Scholarship

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of …

Regulating Electricity Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about …

The (Re)Federalization Of Fracking Regulation, Michael Burger

Sabin Center for Climate Change Law

The purpose of this Article is to defend environmental law's federalism choices from the insinuation that they do not match fracking's environmental impacts and to demonstrate that fracking does indeed belong under the umbrella of federal law. The Article proceeds in four Parts. Part I establishes the federalism-choice analysis framework and applies it to both state and federal regulation of fracking. Part II buttresses the conclusion that federal regulation of potential impacts on underground drinking-water supplies is appropriate through a fresh and extensive examination of the statutory scheme and legislative history of SDWA. Part III offers further support for federal …