Law Commons^™

Taking From States: Sovereign Immunity's Preclusive Effect On Private Takings Of State Land, Jennifer Danis, Michael Bloom

Sabin Center for Climate Change Law

The core of a state is its physical presence and dominion over its land. States are now battling to maintain their dignity as sovereigns, while traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, threaten state sovereignty by attempting to take state property without consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and …

Climate Change, Ferc, And Natural Gas Pipelines: The Legal Basis For Considering Greenhouse Gas Emissions Under Section 7 Of The Natural Gas Act, Romany M. Webb

Sabin Center for Climate Change Law

As the federal agency charged with overseeing the interstate transportation of natural gas, the Federal Energy Regulatory Commission (FERC) has recently faced growing criticism over its approval of new pipelines. Critics have lambasted FERC for failing to adequately consider the climate change impacts of pipeline development, particularly the greenhouse gas emissions associated with “upstream” natural gas production and “downstream” use. The D.C. Circuit recently weighed in, holding that the National Environmental Policy Act (NEPA) requires consideration of downstream greenhouse gas emissions, at least in some circumstances. The precise scope of that requirement continues to be debated before FERC, in the …

Persistent Regulations: A Detailed Assessment Of The Trump Administration's Efforts To Repeal Federal Climate Regulations, Jessica A. Wentz, Michael B. Gerrard

Faculty Scholarship

This paper takes a critical look at what the Trump administration has actually accomplished in terms of repealing and modifying greenhouse gas emission standards and otherwise advancing its pro-fossil fuel agenda. As detailed herein and summarized in Figures 1 and 2, the scope of the efforts taken pursuant to this agenda is extremely broad – there are dozens of different deregulatory actions underway at various agencies, most notably the Environmental Protection Agency (EPA). But in most cases, the pace of these efforts has been quite slow. This is particularly true for efforts to repeal or revise major regulations like the …

Turning The Tide In Coastal And Riverine Energy Infrastructure Adaptation: Can An Emerging Wave Of Litigation Advance Preparation For Climate Change?, Dena P. Adler

Sabin Center for Climate Change Law

A new wave of “failure to adapt” lawsuits has sought to clarify how a changing climate may change what reasonable preparations governments and private actors must take, including increasing the resilience of their infrastructure. These suits span constitutional, tort, and statutory law more broadly, but unprepared owners of energy infrastructure may risk additional violations under environmental law due to unpermitted releases of air and water pollution during extreme weather events for which they are not adequately prepared. This piece will specifically consider recent legal and administrative suits that may indicate shifting legal responsibilities for coastal and riverine energy infrastructure owners …

Deploying Advanced Metering Infrastructure On The Natural Gas System: Regulatory Challenges And Opportunities, Romany M. Webb

Sabin Center for Climate Change Law

Recent increases in domestic natural gas use have been widely heralded as a vital step in the fight against climate change. Proponents often characterize natural gas as a “clean” fossil fuel, emphasizing that its combustion produces fewer greenhouse gas emissions than coal and oil (per unit of energy produced). Natural gas combustion still emits large amounts of carbon dioxide, however. Natural gas production and transportation also result in emissions, primarily in the form of methane, which is a highly potent greenhouse gas, with approximately eight-four times the climate impacts of carbon dioxide (on a pound-for-pound basis, over a twenty-year time …

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.

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 …

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 …

Downstream And Upstream Greenhouse Gas Emissions: The Proper Scope Of Nepa Review, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project …

Carbon Pricing In New York Iso Markets: Federal And State Issues, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

Does the law permit the New York Independent Service Operator (NYISO) to incorporate, directly or indirectly, a carbon price into New York State’s wholesale electricity market? And, if so, what is the appropriate design of a carbon pricing scheme for the NYISO market? For example, at what level should a carbon price be set and when/how should it be adjusted? How should the revenues generated by such a price be used? What impact (if any) will it have on the Regional Greenhouse Gas Initiative (RGGI) and New York’s Clean Energy Standard? This working paper explores answers to those questions with …

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 …

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 …

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 …

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.

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. …

Carbon Capture And Storage Policy In China, Yan Gu

Sabin Center for Climate Change Law

This paper examines the current state of Carbon Capture, Utilization and Storage technology (CCUS) in China as well as the related climate change policy, laws, and initiatives that might be used to encourage the large-scale deployment of carbon sequestration in China. The paper is organized in six sections. Section I examines the overall status of CCUS development in China, including CCUS research activities and demonstration project deployment. Section II discusses the broader environment of national climate change policies issued by the State Council (namely the Central People’s Government) and how it accommodates CCUS development policy. Section III reviews China’s technology …

Court Ruling Gives Green Light To Epa Ghg Regulations – Positive For Natural Gas, Renewables, And Efficient Vehicles, Mark Fulton, Michael B. Gerrard, Jake Baker, Lucy Cotter

Faculty Scholarship

On June 26, 2012, a panel from the US Court of Appeals for the District of Columbia Circuit Court unanimously upheld the US Environmental Protection Agency’s (EPA) landmark greenhouse gas (GHG) regulations, keeping intact the EPA’s authority to regulate carbon emissions from vehicle tailpipes and stationary sources.

The case is of great importance as it effectively clears the way for the EPA to proceed with its proposed rules to regulate CO₂ emissions from both new power plants and from other new stationary sources, in addition to pressing ahead with new vehicle emission standards.

Domestic Mitigation Of Black Carbon From Diesel Emissions, Hannah Chang

Sabin Center for Climate Change Law

Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified as an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. With an emphasis on domestic mitigation, this Article examines how emissions are controlled under the CAA and what EPA, states, and municipalities can do to mitigate black carbon emissions further.

Shopping For State Constitutions: Unequal Gift Clauses As Obstacles To Optimal State Encouragement Of Carbon Sequestration, Nicholas Houpt

Sabin Center for Climate Change Law

Carbon capture and sequestration technology (CCS) could drastically reduce CO2 emissions from coal-fired power plants, thereby mitigating climate change. CCS, however, faces a difficult barrier to market entry: liability for the technology’s many long-term risks. States would like to alleviate this long-term liability problem to capture CCS’s social benefits. Some state constitutions, however, have provisions called “gift clauses” that prohibit giving aid to private parties. This Note argues that some state constitutions’ gift clauses prevent indemnification of private CCS developers. As this Note’s fifty state survey shows, other state constitutions allow indemnification. This asymmetry in constitutionally-allowed financial encouragement results in …

Carbon Offshoring: The Legal And Regulatory Framework For Coal Exports, Daniel M. Firger, Robert Denicola, Katherine English, Daniel Raichel, Ross Wolfarth, Kennan Zhong

Sabin Center for Climate Change Law

This report examines the legal and regulatory framework for U.S. coal exports, focusing in particular on the significant improvements in railroad and port infrastructure that will be necessary in order to boost the volume of overseas coal shipments to the degree anticipated by recent industry projections. While existing railroads and ports have the capacity to handle current coal export volumes, much more infrastructure will be needed to meet surging foreign demand. A wide variety of new construction projects are under consideration to expand capacity and relieve congestion. These range from double-tracking existing Class I railroad rights of way to dredging …

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

The Epa’S Proposed Transport Rule: Implications For Climate Change Regulation, Jessica A. Wentz

Sabin Center for Climate Change Law

On July 6, 2010, the U.S. Environmental Protection Agency (EPA) proposed a Clean Air Act rulemaking to reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from power plants in the eastern United States. If it survives legal scrutiny, the rule will impose a hybrid cap-and-trade program with state-specific SO2 and NOx emission budgets and limited interstate trading. This paper discusses the rule's requirements, how it compares to its predecessor (the Clean Air Interstate Act), the projected impact on air quality and public health, and implications for future climate change policy.

Colorado’S Clean Air-Clean Jobs Act: Encouraging Conversion Of Coal Plants To Natural Gas, Jonathan Talamini

Sabin Center for Climate Change Law

The State of Colorado's recently-enacted Clean Air-Clean Jobs Act (CACJA) requires utilities to create plans that reduce NOx emissions by 70% at a specified portion of their coal-fired electricity generation facilities by the end of 2017. It allows utilities to use many different methods to achieve those reductions, but encourages and incentivizes the replacement of coal-based generation with natural gas. Utilities must seek approval for their plans from state agencies and must work closely with those agencies in designing the plans. This paper discusses the legal, political, and economic context for CACJA, and highlights the bill's advantages and disadvantages as …

Coal-Fired Powerplants Dominate Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Litigation aiming to reduce emissions of greenhouse gases (GHGs) is coming to be dominated by battles over coal-fired power plants. Ten of the last 20 judicial or administrative decisions or case filings in matters aiming to reduce GHGs have concerned such plants. A concerted effort by the environmental community to fight the use of coal is behind much of this litigation. According to the Energy Information Administration, the combustion of coal is the largest source of GHG emissions in the United States; motor vehicles are a not-very-close second.

The Sierra Club has a Web site that tracks all the proposed …