Law Commons^™

The Renewable Power Of The Mine, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Access to affordable and reliable energy is key for the mining sector and with rising demand for minerals and falling ore grades, energy demand is estimated to increase by 36% by 2035. Today, energy produced and procured by mining companies is mostly fossil fuel based. This will have to change if the sector is to contribute to the decarbonization of the world economy, needed for countries to meet the target adopted at the Paris Agreement of keeping global temperatures from rising more than 1.5-2 degrees Celsius.

At the same time, the costs of solar, wind and battery storage systems have …

Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

We face a critical environmental crisis. Humanity consumes unsustainably; we use resources at a rate fifty percent faster than they are reproduced by the planet. The population is growing exponentially and climate change, the most important challenge of this century, is already wreaking havoc around the world. Despite numerous existing international environmental treaties, the Earth, and, therefore, human safety and prosperity, is in peril. According to a recent study by scientists from Stanford University and the National Autonomous University of Mexico, the ongoing “sixth mass extinction” threatens to cause an “assault on the foundations of human civilization.” In November 2017, …

How International Oil Companies Could Assist The Republic Of Cyprus To Achieve The Sustainable Development Goals: A Conversation Starter, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper is addressed to International Oil Companies (IOCs), public officials and Non-Governmental Organizations (NGOs) involved in the natural gas industry in Cyprus. There is currently no conversation happening in Cyprus on how the oil and gas industry could help Cyprus achieve their Sustainable Development Goals. Therefore, this paper hopes to initiate a debate and conversation around this topic. It provides an overview of the ways in which IOCs operating in Cyprus could contribute towards the sustainable development of the natural gas industry and assist the Republic of Cyprus to achieve a number of their 2030 Sustainable Development Goals …

Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

International investment law, based primarily on international investment treaties, plays an important role in the governance of investment in agriculture, forestry, and fishing. The obligations established by these treaties, and enforced by means of investor–state arbitration, can present challenges for policy-makers and others seeking to ensure that investments are sustainable, including by affecting the ways in which the costs and benefits of investments are distributed among different actors.

CCSI partnered with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD) to produce a briefing note on agricultural investments under international investment law. The …

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker

Columbia Center on Sustainable Investment Staff Publications

In 2008, ten communities in the Brong Ahafo region of Ghana entered into agreements with Newmont Ghana to govern company-community relations, ensure local job creation, and share the benefits of the company’s mining operations. Ten years later, this report, co-authored by Canadian International Resources and Development Institute (CIRDI), African Center for Energy Policy (ACEP), CCSI, and ISP, looks at the communities’ experience of those agreements and suggests how the agreements might be improved. Though the agreements were celebrated for their attempts to include all stakeholders in decision-making, challenges remain around representation, consultation, and participation. New entities established to facilitate multi-stakeholder …

Il Contributo Delle Compagnie Oil & Gas Nel Raggiungimento Degli Obiettivi Energetici E Climatici (How Oil And Gas Companies Can Help Meet The Global Goals On Energy And Climate Change), Lisa E. Sachs, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Nel settembre 2015, i governi di tutto il mondo hanno adottato17 Obiettivi di Sviluppo Sostenibile (Sustainable Development Goals – SDG) e, pochi mesi dopo – a dicembre – hanno firmatol’Accordo di Parigi. Queste azioni sono la riprova delrafforzamento del consenso globalecirca la necessità di frenare il cambiamento climatico indotto dalle attività antropiche e dipromuovere uno sviluppo sostenibilesu scala mondiale. I due concetti sono infatti strettamente legati: l’urgenza di affrontare il cambiamento climatico va inquadrata nella cornice degli sforzi globali tesi a ridurre la povertà, promuovere la crescita economica, rispettare i diritti umani e di inclusione sociale.

On September 2015, governments …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.

Resourcing Green Technologies Through Smart Mineral Enterprise Development: A Case Analysis Of Cobalt, Saleem Ali, Perrine Toledano, Nicolas Maennling, Nathaniel Hoffman, Lola Aganga

Columbia Center on Sustainable Investment Staff Publications

Achieving the goals of the Paris Agreement requires the world to adopt ‘green technologies’ such as renewable energies and electric transportation at an unprecedented scale. While many countries have implemented policies to spur the adoption of such technologies, a lack of focus has been placed on the sourcing of minerals that are required as inputs. As a result, there is likely to be a significant deficit that may constrain the adoption of green technologies.

In this report, we argue that a neglected area in addressing the mineral scarcity challenge is the private sector’s current trajectory for geological mineral exploration and …

Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Many of the Sustainable Development Goals will only be achieved if the population has access to basic services, such as access to water, power, transport, and telecommunications. However, in many developing countries there is a lack of infrastructure to guarantee these services and there are insufficient public funds to finance growing needs. In resource-rich countries, the mining sector can play a key role in increasing access to infrastructure. Mining-related infrastructure is often developed to serve the exclusive need of the investors, but if it is shared and developed to serve the broader needs and uses of the host economy it …

Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team

Faculty Scholarship

The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an assessment of economic, regulatory …

Using Eias In Our Research, Madison E. Condon

Sabin Center for Climate Change Law

A description of how researchers at the Columbia Water Center use environmental impact assessments in their research projects.

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 …

Join The Parties: 25+ Ways To Promote Participation In Multilateral Environmental Agreements, Susan Biniaz

Sabin Center for Climate Change Law

Negotiators of multilateral environmental agreements are frequently faced with the challenge of striking the right balance between stringency of commitment and breadth of participation. A perfect agreement on paper, with strong commitments and a robust compliance mechanism, might attract too few Parties (or too few key Parties) to achieve the agreement’s environmental objective. Conversely, broad participation in a weak agreement might also fail to accomplish the agreement’s goals.

This paper focuses on the various ways in which negotiators have worked to encourage participation in multilateral environmental agreements. In some cases, they involve steps taken before and during the negotiation of …

Setting The Table For An International Environmental Agreement: A Beginner's Guide To Negotiating Mandates, Susan Biniaz

Sabin Center for Climate Change Law

You may be an experienced negotiator of international environmental agreements. Or you may be new to the field and excited to negotiate your very first one. In both cases, you know your precedents, helped craft your government’s positions, and are anxious to get started. But wait … before you negotiate the agreement, you will need to navigate the mandate.

A mandate launches the negotiation of an international environmental instrument and sets forth its terms of reference, both procedural (such as where and when it will take place) and substantive (such as what the instrument should address). It is generally issued …

Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to …

Distributed Energy Resource Participation In Wholesale Markets: Lessons From The California Iso, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

This article examines CAISO’s DER program after its first year of operation. It draws on written comments submitted to CAISO in the course of program development and on interviews the authors conducted with stakeholders – including active and potential DERPs, investor-owned utilities, and customer groups – to identify “barriers” to program participation. Irrespective of whether these barriers are appropriate – e.g., to ensure continued wholesale system reliability as DER penetration increases – they have clearly prevented the DER program fulfilling CAISO’s stated goal. The barriers should, therefore, be considered by other ISO/RTOs in developing programs with similar goals. The authors …

Expertise Scientifique Et Lien De Causalité Dans Le Cadre Du Contentieux Climatique: Le Point De Vue De La Doctrine Américaine, Michael Burger

Sabin Center for Climate Change Law

Au cours des dernières années, il y a eu une augmentation remarquable du nombre d’actions judiciaires visant à demander aux Gouvernements et aux acteurs privés de rendre des comptes de leur inaction face aux changements climatiques. La « science de l’attribution » du changement climatique – c’est-à-dire la capacité de détecter les changements environnementaux et de les attribuer à l’augmentation des émissions de gaz à effet de serre – joue un rôle central dans bon nombre de ces actions : elle permet en effet de fonder à la fois l’attribution d’événements extrêmes au changement climatique et d’émissions de gaz à …

Green Finance: Leveraging Investment For Environmental Protection, Michael B. Gerrard, Charles E. Di Leva, John Rousakis, Douglas Sims

Faculty Scholarship

Some political narratives describe the relationship between environmental protection and economic growth as two inherently incompatible goals. As the global community turns its attention to implementing international climate agreements, this story is ceding ground to the realization that the economy must facilitate a transition to sustainability. With limited government funding available, private investments offer an opportunity to dramatically increase and leverage funding to address daunting environmental problems. Green financing will play a critical role in the shift to a green economy.

Governments, intergovernmental organizations, financial institutions, corporations, and nongovernmental organizations (NGOs) are examining green financing mechanisms in earnest. Financial institutions …

Is The First Amendment Obsolete?, Tim Wu

Faculty Scholarship

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce – rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on …

Changing International Law For A Changing Climate, Daniel C. Esty, Dena P. Adler

Sabin Center for Climate Change Law

After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, …

The Built Environment, Justin Gundlach, Jennier Klein

Sabin Center for Climate Change Law

The built environment, which includes not only buildings but infrastructure, mediates several important climate impacts on public health and is also subject to diverse legal requirements. It is a subject of particular focus for policy efforts aimed at promoting adaptive responses to climate change on the part of institutions and individuals. This chapter presents key examples of public health impacts that arise from climate change but are mediated – possibly mitigated, possibly exacerbated - by elements of the built environment. It also describes the process and substance of adaptive responses to those impacts. Having presented these physical and policy contexts …

Microgrids And Resilience To Climate-Driven Impacts On Public Health, Justin Gundlach

Sabin Center for Climate Change Law

“Resilience” has burst into the lexicons of several policy areas in recent years, owing in no small part to climate change’s amplification of extreme events that severely disrupt the operation of natural, social, and engineered systems. Fostering resilience means anticipating severe disruptions and planning, investing, and designing so that such disruptions, which are certain to occur, are made shallower in depth and shorter in duration. Thus a resilient system or community can continue functioning despite disruptive events, return more swiftly to routine function following disruption, and incorporate new information so as to improve operations in extremis and speed future restorations. …

Climate Change Impacts On The Bulk Power System: Assessing Vulnerabilities And Planning For Resilience, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

As the scale, speed, and implications of climate change come into focus, stakeholders in the electricity sector are finding it increasingly difficult to turn a blind eye. However, many have opted to attend to climate impacts in a piecemeal fashion, often merely responding to particular extreme events – or types of extreme events, such as coastal storms or floods – and failing to consider the larger phenomenon. This is true of the bulk power system (BPS) in regions overseen by Independent System Operators and Regional Transmission Organizations (collectively, ISO/RTOs), none of which have comprehensively assessed their systems’ vulnerabilities to climate …

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 …

Human Rights And Article 6 Of The Paris Agreement: Ensuring Adequate Protection Of Human Rights In The Sdm And Itmo Frameworks, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

Article 6 of the Paris Agreement recognizes the right of Parties to cooperate in the implementation of their nationally determined contributions (NDCs) through both market- and non-market-based approaches. One market-based approach is outlined in Article 6.2 which provides for “the use of internationally transferred mitigation outcomes [(ITMOs)] towards” NDCs. This is widely seen as establishing a “bottom-up” approach, whereby “mitigation outcomes,” representing emission reduction credits, can be transferred internationally and then become ITMOs. It can be contrasted with other market-based approaches that are “top-down,” involving centralized programs supporting emission reduction projects. One such program is created in Article 6.4 of …

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.