Law Commons^™

Legal Considerations For Atmospheric Methane Removal, Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

Scientists are beginning to investigate atmospheric methane removal approaches, which would accelerate the conversion of methane to a less radiatively potent form or physically remove methane from the atmosphere and store it elsewhere. Developing and, if appropriate, deploying atmospheric methane removal approaches will require an understanding of relevant legal considerations and governing structures that could impact whether, when, where, and how specific projects take place. This paper examines the treatment of atmospheric methane removal approaches under international and U.S. domestic law. The paper focuses on five atmospheric methane removal approaches that are currently being investigated: (1) atmospheric oxidation enhancement, (2) …

Regulating Shipping Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

A number of facilities intended for permanent sequestration of carbon dioxide are being developed in the United States. Several will be located on or near the coast of the Gulf of Mexico, making them easily accessible to ships. Meanwhile, in Europe there is substantial interest in capturing carbon dioxide from industrial operations, but currently inadequate sequestration facilities, and growing interest in shipping carbon dioxide for sequestration in the United States. This Article reviews the main U.S. federal laws applicable to transportation and geologic storage of carbon dioxide, including laws enacted to implement relevant international treaties. The Article also contextualizes its …

The False Choice Between Digital Regulation And Innovation, Anu Bradford

Faculty Scholarship

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution …

The International Legal Framework Of Oceanic Shipping Of Carbon Dioxide For Permanent Storage, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

The Intergovernmental Panel on Climate Change defines carbon dioxide capture and storage (CCS) as “a process in which a relatively pure stream of carbon dioxide (CO2) from industrial and energy-related sources is separated (captured), conditioned, compressed, and transported to a storage location for long-term isolation from the atmosphere.” Therefore, CCS encompasses a series of steps, at minimum: capturing carbon dioxide, its transportation to a storage site, and its injection into the subsurface for permanent storage. As such, CCS does not refer to any single activity or technology. This Article focuses on the transportation aspect of CCS and, more precisely, …

Enforcing Legacy Environmental Liabilities For Offshore Oil And Gas Infrastructure, Martin Lockman, Romany M. Webb

Sabin Center for Climate Change Law

For more than a century, American fossil fuel companies have extended their operations offshore to exploit the vast oil and gas reserves that lie under the seafloor. Since 1953, the Department of the Interior (DOI) has operated a complex system of offshore leasing that allows private oil and gas companies to operate in federal waters. DOI’s leasing regime requires companies to plug wells, remove offshore platforms, and generally return their operation sites to a safe and stable condition when their leases end. This process, known as “decommissioning,” can cost tens or hundreds of millions of dollars for each offshore platform. …

Financing Pathways For The Energy Transition: A Regional Approach, Ana M. Camelo Vega

Columbia Center on Sustainable Investment

The success of the global energy transition critically requires a shift from a solely national focus to a regional perspective. Regional cooperation is not just a beneficial opportunity; it is an imperative for the future of sustainable energy. Clean energy solutions are inherently regional, necessitating interconnected systems and collaborative frameworks. This regional focus is essential for addressing the complex challenges of the energy transition, requiring comprehensive engineering, institutional, and financial solutions.

This comprehensive report highlights the crucial financing pathways needed to achieve a successful clean energy transition, focusing on four key regions: Africa, Asia and the Pacific, Latin America and …

Implementing The Inflation Reduction Act: Progress To Date And Risks From A Changing Administration, Romany M. Webb, Martin Lockman, Emma Shumway

Sabin Center for Climate Change Law

The Inflation Reduction Act of 2022 (“IRA”) is the largest investment in climate change mitigation and adaptation in American history. The IRA appropriates more than $142 billion to carry out activities designed to reduce greenhouse gas emissions and protect against the impacts of climate change. This includes up to $37 billion in appropriations for federal loans and loan guarantees, and nearly $105 billion allocated for grants, awards, and other direct spending by federal agencies. In addition, the IRA creates and expands a number of tax credit programs designed to support a broad range of climate-related activities, including investments in clean …

The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence

Faculty Scholarship

The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced. This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence. We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002. Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and …

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

New York Falling Behind In Implementing Bold Climate Law, Michael B. Gerrard

Faculty Scholarship

In July 2019, shortly after Gov. Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA), I wrote in an op-ed, “The champagne corks are still popping. But the realization is dawning that implementing the new law will be really, really hard. New York is boldly going where no state has gone before … It will take a great deal of sweat and treasure (no one knows just how much), as well as a continuation of the political will that brought us to this point.”

We still do not know how much sweat and treasure will be required, but …

From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg

Faculty Scholarship

Lightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.”

The Surprising Survival – So Far – Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to …

Global Guidance For Just Transition Policy: Policy Brief, Anna Dell'amico, Martin Dietrich Brauch, Lara Wallis, Alexandra A.K. Meisea

Columbia Center on Sustainable Investment

In 2015, the International Labour Organization (ILO) adopted Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All, providing authoritative and valuable international guidance for just transitions. CCSI has conducted a comparative analysis of the application of the ILO Guidelines in South Africa and Germany and examined the extent to which the ILO Guidelines address energy transition challenges facing developing countries.

This CCSI Policy Brief summarizes the comparison between South Africa’s and Germany’s just transition policies and the ILO Guidelines. It also summarizes CCSI’s findings and recommendations to shape further guidance on just energy transition policymaking from …

Prioritization Of The Draft Provisions On Procedural And Cross-Cutting Issues, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment

Prioritization of the Draft Provisions on Procedural and Cross-Cutting Issues is a joint submission to the Secretariat's request for comments on the prioritization of the draft provisions on procedural and cross-cutting issues. The submission calls for an approach to classification and prioritization that allows Working sufficient time to address issues that are particularly pressing in ISDS reform debates, including, for instance, draft provisions 10 (shareholder claims), 12 (right to regulate), and 23 (assessment of damages and compensation).

Permit Proposals: Summary Of Recommendations, Luis Pablo Alvarez

Sabin Center for Climate Change Law

All scenarios for meeting greenhouse gas reduction targets require faster deployment of renewable energy projects. However, the current permitting processes, while designed to ensure environmental and public safety as well as public participation, often delay progress. The challenge is to speed up renewable energy development without compromising environmental and community protections. This white paper by the Sabin Center reviews 15 reports from reputable institutions that identify steps to streamline the permitting process. These recommendations offer strategies to reduce time and costs in advancing renewable energy projects.

This report will be updated from time to time. Readers who identify errors in …

Global Guidance For Just Transition Policy, Anna Dell'amico, Martin Dietrich Brauch, Lara Wallis, Alexandra A.K. Meisea

Columbia Center on Sustainable Investment

In 2015, the International Labour Organization (ILO) adopted Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All, providing authoritative and valuable international guidance for just transitions. CCSI has conducted a comparative analysis of the application of the ILO Guidelines in South Africa and Germany and examined the extent to which the ILO Guidelines address energy transition challenges facing developing countries.

The CCSI report, Global Guidance for Just Transition Policy, provides detailed context on South Africa’s and Germany’s national socio-political and energy conditions and policies, and comprehensively examines the legal and policy instruments adopted by both countries …

On Critical Genealogy, Bernard E. Harcourt

Faculty Scholarship

Today most critical theorists who deploy history use a genealogical method forged by Nietzsche and Foucault. This genealogical approach now dominates historically inflected critique. But not all genealogical writings today, nor all philosophical debates surrounding genealogy, advance the goals of critical philosophy. It is crucial now that we assess the value of genealogical critiques. The proper metric against which to evaluate such work is whether it contributes to transforming ourselves, others, and society in a valuable way. In this article, I propose that we use the term “critical genealogy” to identify those genealogical practices that positively nourish our activity and, …

Green Public Procurement: How To Fulfill The Promise Of Decarbonizing The Hard-To-Abate Sectors, Laura Garcia Cancino, Perrine Toledano, Ingrid Zhou

Columbia Center on Sustainable Investment

Public procurement represents a significant segment of the global economy, accounting for approximately 12% of the global GDP, according to a World Bank's 2020 report. Moreover, steel and cement are among the most carbon-intensive commodities, contributing about 14-16% of global energy-related CO2 emissions. Our latest publication under the COMET initiative, Green Public Procurement: How to Fulfill the Promise of Decarbonizing the Hard-to-Abate Sectors, analyzes Green Public Procurement (GPP) and its pivotal role in decarbonizing hard-to-abate sectors like steel manufacturing.

This comprehensive study delves into how governments can use their extensive purchasing power to shift market dynamics towards low-carbon alternatives, effectively …

A Market Mechanism For The Creation Of A Climate-Differentiated Market In The Steel Industry, Laura Garcia Cancino, Perrine Toledano

Columbia Center on Sustainable Investment

The heavy industry sector, a significant contributor to global CO2 emissions, is at a critical juncture. Accounting for 25% of total CO2 emissions annually, this sector is poised to see an increased demand for materials through 2050, particularly from developing countries focused on infrastructure expansion and transitions toward net-zero emissions. However, the sector's dependency on high-emission technologies, notably in steelmaking, underlines the pressing need for a swift and decisive shift to low-emission alternatives.

Our latest publication under the COMET initiative, A Market Mechanism for the Creation of a Climate-differentiated Market in the Steel Industry, introduces a twofold market mechanism specifically …

Climate Impact Screening And Reporting: A Venture Capital Perspective, Ajay S. Jagdish, Perrine Toledano, Ana M. Camelo Vega

Columbia Center on Sustainable Investment

According to the International Energy Agency’s (IEA) Net-Zero Scenario, about one-third of the emissions reductions needed by 2050 depend on technologies that are currently in development. Additionally, climate adaptation finance faces an even larger investment gap.

The Climate Venture Capital community must demonstrate tangible climate impact to truly earn its reputation.

However, accurately and reliably screening, evaluating, and monitoring climate impact is challenging, with many metrics and methods still needing to be ascertained, clarified, and standardized.

With the support of Princeville Capital, CCSI offers insights into unresolved issues:

1. Attribution and baselining
2. Paris-aligned thresholds for prioritization
3. Indirect impact and tailored KPIs …

Removing Methane Via Atmospheric Oxidation Enhancement: The Legal Framework, Romany M. Webb, Martin Lockman, Korey Silverman-Roati

Sabin Center for Climate Change Law

To achieve the Paris Agreement’s goal of limiting the increase in global average temperatures to “well below 2 degrees Celsius,” and ideally 1.5 degrees Celsius, above pre-industrial levels, global greenhouse gas (“GHG”) emissions must reach net zero in the second half of the century. The global community is not currently on track to achieve net zero emissions. In fact, with the exception of a slight dip during the Covid-19 pandemic, emissions have risen steadily in recent years. This, together with the increasingly visible impacts of climate change, has prompted growing interest in the possibility of removing GHGs directly from the …

The Prohibition Of Annexations And The Foundations Of Modern International Law, Ingrid Brunk, Monica Hakimi

Faculty Scholarship

The international legal norm that prohibits forcible annexations of territory is foundational to modern international law. It lies at the core of three projects that have been central to the enterprise: (1) to settle title to territory as the basis for establishing state authority; (2) to regulate the use of force across settled borders; and (3) to provide for people within settled borders collectively to determine their own fates. Prohibiting forcible annexations is integral to each of these projects independently, and by tying them together, has had a transformative effect on the legal system as a whole. However, its significance …

Sect And Superstition: The Protestant Framework Of American Codification, Kellen R. Funk

Faculty Scholarship

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism …

The Unraveling Of The Federal Home Loan Banks, Kathryn Judge

Faculty Scholarship

The Federal Home Loan Bank system is a $1.3 trillion government-sponsored enterprise that operates primarily for the benefit of member financial institutions. Federal Home Loan Bank members enjoy generous dividends and ready access to fresh liquidity. The biggest beneficiaries are the biggest users of the system, including the largest banks and insurance companies in the country and banks facing financial distress. This essay explains the original aims of the Federal Home Loan Bank system, how the system fulfilled those aims quite successfully for decades following its creation in 1932 and how the system evolved to serve primarily private aims. By …

Is John Stuart Mill's On Liberty Obsolete?, Vincent A. Blasi

Faculty Scholarship

In On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill's argument in On Liberty is …

Capitalism And The Challenge Of Inequality, Andrzej Rapaczynski

Faculty Scholarship

Rapidly rising income and wealth inequality in the United States and other Western countries has been commonly identified as an inherent and nefarious feature of the capitalist system. In fact, however, rising inequality within the economically advanced countries has been accompanied by both a significant relative improvement of the economic and social position of the previously disadvantaged groups, such as women and ethnic minorities, and an unprecedented reduction of the inequalities between the people living in the advanced countries and the rest of the world. This change is largely due to the phenomenon of globalization that brought the advantages of …

Annual Seqra Review: Project Applicants Winning More Cases, Michael B. Gerrard

Faculty Scholarship

New York courts are showing impatience with local governments that withhold or stretch out approval of projects without valid environmental grounds. In seven cases last year under the State Environmental Quality Review Act (SEQRA),courts overturned municipal actions that rejected projects or delayed approvals. In all, the courts decided 46 cases under SEQRA in 2023. Where the government agency had decided that an environmental impact statement (EIS) was not needed, that choice was upheld in 23 cases and overturned in eight. Where an EIS had been prepared, the EIS was upheld in 11 and found inadequate in only one. The remaining …

Public Health And Human Health Implications Of Climate Mobility, Julia Neusner, Ama Francis

Sabin Center for Climate Change Law

Climate change poses significant challenges at the intersection of human and public health, mobility, and international law. Adverse climate impacts undermine the quality of human and public health, contributing to increasing global mobility, while climate-impacted migrants and displaced people can experience severe health challenges in transit and in their receiving communities. Moreover, the nexus between climate change, human and public health, and mobility exacerbates pre-existing vulnerabilities, undermining human rights and implicating State obligations. As international and regional courts, including the International Court of Justice (ICJ), clarify states’ duty to protect people from the adverse impacts of climate change, it is …

Opposition To Renewable Energy Facilities In The United States: June 2024 Edition, Matthew Eisenson, Jacob Elkin, Harmukh Singh, Noah Schaffir

Sabin Center for Climate Change Law

Achieving lower carbon emissions in the United States will require developing a massive number renewable energy facilities at an unprecedented scale and pace. Although many renewable energy facilities are sited without any problem, local opposition often arises. This report updates and considerably expands three previous Sabin Center reports, published in September 2021, March 2022, and May 2023, which document local and state restrictions against, and opposition to, siting renewable energy projects, as well as energy storage and transmission projects that are closely tied to renewable energy generation. The time period covered by this report ranges from as early as 1995 …

Catalyzing Public And Private Investments To Scale Up Socio-Bioeconomy And Nature-Based Solutions, Lara Fornabaio, Lisa E. Sachs, Meike Siegner, Vivek Pandey, Rajat Panwar

Columbia Center on Sustainable Investment

Socio-bioeconomy presents a promising approach to sustainable development by leveraging biological and social diversity to transition away from a fossil fuel dependent economy while simultaneously creating income and employment opportunities for millions of Indigenous and rural communities worldwide. Because the bioeconomy values the sustainable utilization of renewable biological resources, nature-based solutions (NbS), which are a facet of the socio-bioeconomy, gain increasing prominence. Socio-bioeconomy requires substantial investmentsfrom both public and private sectors to develop effective socio-biodiversity production systems. Socio-bioeconomy development will require improved institutional coordination, robust planning, and novel methodologies to measure trade-offs as well as promote synergies that can generate …