Law Commons^™

Evaluating Climate Risk In Nepa Reviews: Current Practices And Recommendations For Reform, Romany M. Webb, Michael Panfil, Stephanie H. Jones, Dena Adler

Sabin Center for Climate Change Law

In recent years, policymakers, practitioners, and scholars have increasingly considered how climate change should factor into existing environmental review obligations, including review of U.S. federal agency actions under the 1969 National Environmental Policy Act (“NEPA”). Attention thus far has focused primarily on the critical question of how to account for an action’s contribution to climate change via direct, indirect, or cumulative greenhouse gas emissions. However, less focus has been given to the equally critical question of how actions will be affected by, and can prepare for, the impacts of climate change. This paper combines an extensive review of previously conducted …

Who Decides Where The Renewables Should Go?: A Response To Danielle Stokes’ Renewable Energy Federalism, Michael B. Gerrard

Faculty Scholarship

One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition — delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects.

I will begin by describing the magnitude of the problem — the amount …

How Biden’S Environmental Policies Will Affect New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

As this column has previously discussed, President Joe Biden’s environmental policies are a sharp reversal of those of former President Donald Trump. Today’s column spotlights how this change will affect New York state and New York City.

Overview Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Climate change litigation is a global phenomenon. According to a database maintained by the Sabin Center for Climate Change Law, as of February 4, 2019 a total of 1,297 climate cases had been filed in courts or other tribunals worldwide. Of these, 1,009 — 78 percent — were from the United States, Australia was a distant second, with ninety-eight, followed by the United Kingdom with forty-seven. No other country had as many as twenty. The cases were filed in twenty-nine countries and six international tribunals, led by the Court of Justice of the European Union, which had forty-one.

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

Sabin Center for Climate Change Law

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

Threats To The Brazilian Environment And Environmental Policy, Thomas J. Trebat, Laura Nora, Inga Caldwell

Sabin Center for Climate Change Law

The Columbia Global Centers | Rio de Janeiro, in partnership with the Sabin Center for Climate Change Law at Columbia University and the Brazil-American Institute for Law and Environment at Pace University, organized a Workshop on November 13, 2019 in New York City. The Workshop was convened to discuss and raise awareness of the scope and severity of the environmental crisis in Brazil with a focus on the severe threats to the Amazon.

The consequences of the Bolsonaro government´s environmental actions are serious for Brazil and for the world. That is one of the reasons why the Columbia Global Center …

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 …

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 …

L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard

Faculty Scholarship

Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …

Planning For The Effects Of Climate Change On Natural Resources, Jessica A. Wentz

Sabin Center for Climate Change Law

Climate change has important implications for the management and conservation of natural resources and public lands. The federal agencies responsible for managing these resources have generally recognized that considerations pertaining to climate change adaptation should be incorporated into existing planning processes, yet this topic is still treated as an afterthought in many planning documents. Only a few federal agencies have published guidance on how managers should consider climate change impacts and their management implications. This Article explains why these agencies are legally required to consider climate- related risks in planning processes, and presents recommendations and a model protocol for conducting …

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 …

Coming Into The Anthropocene, Jedediah S. Purdy

Faculty Scholarship

Cannon’s debut book, Environment in the Balance, sets itself an ambitious task: to overcome this division by showing that environmental law, much as it may appear dry and dull, is deeply infused with conflicts over values. Cannon’s project is to reveal the green ghost in the gray machine, the soul of disagreement that lends shape to arguments that may otherwise seem aridly technical. He does this by carefully reading thirty major Supreme Court decisions in environmental law and teasing out the differences in worldview that animate the Justices’ reasoning – divisions that are not simply over abstract legal questions, …

Using Online Databasing To Unlock The Full Value Of Environmental Impact Assessments, Jessica A. Wentz

Sabin Center for Climate Change Law

Government agencies are often required to conduct some form of environmental impact assessment (EIA) before approving a major project or proposal. The documents generated during these assessments contain a wealth of information about baseline environmental conditions, impact assessment methodologies, predicted impacts, and mitigation measures, among other things. This information is compiled at great effort and expense and is valuable in many different applications. Unfortunately, the challenge of locating and searching through these documents poses a serious impediment to effectively harnessing the information contained therein.

Granted, public access to EIA documents has improved considerably in the past decade. Environmental Impact Statements …

Survey Of Climate Change Considerations In Federal Environmental Impact Statements, 2012-2014, Jessica A. Wentz, Grant Glovin, Adrian Ang

Sabin Center for Climate Change Law

Climate change will have a profound effect on humans and our environment. Recognizing this, federal agencies have begun to incorporate a more detailed discussion of climate change considerations into the Environmental Impact Statements (EISs) that they prepare for major federal actions, such as the approval of resource management plans and public infrastructure projects, in accordance with the National Environmental Policy Act (NEPA). The Council on Environmental Quality (CEQ) has also issued draft guidance on how agencies should evaluate greenhouse gas (GHG) emissions and climate change effects in NEPA reviews.

To provide insight into how federal agencies are accounting for climate …

State Public Utility Commissions' Powers To Advance Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Improving energy efficiency is widely acknowledged as the most economical way to reduce greenhouse gas emissions and the other adverse environmental impacts of fossil fuel use. Indeed, efficiency measures often yield net cost savings over a fairly short period of time.

The United States lacks a comprehensive regulatory program for energy efficiency. The Environmental Protection Agency and the Department of Transportation set fuel economy standards for motor vehicles (and on Aug. 28, 2012, finalized a major tightening of those standards). The Department of Energy sets many appliance standards and administers certain grant and research programs. The Federal Energy Regulatory Commission …

Hurricane Katrina Decision Highlights Liability For Decaying Infrastructure, Michael B. Gerrard

Faculty Scholarship

A March 2, 2012, decision from the U.S. Court of Appeals for the Fifth Circuit, little noticed outside of New Orleans, has broad implications for the liability of federal agencies for injuries caused by the decay or obsolescence of infrastructure due to erosion, sea level rise, and other ongoing conditions, whether of natural or human origin. Less directly, the decision also affects the liability of state and municipal governments, and even private entities in charge of built structures.

This article describes the underlying facts, the decision, and its implications. It also considers how governments and private parties can, to a …

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 …

United States Of America, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

The prospect of carbon liability in the United States is a relatively recent phenomenon. It is only in the last decade that US environmental lawyers and policy-makers have begun to turn their attention to climate change, as climate-related litigation has surged, government action on several fronts has begun, and climate change has generally been recognised as a factor to consider in decision-making across the economy. This chapter lays out existing options to establish liability for greenhouse gas (‘GHG’) emissions along legislative, regulatory and judicial channels.

Greenhouse Gas Disclosure Requirements Are Proliferating, Michael B. Gerrard

Faculty Scholarship

While climate change legislation is mired in Congress, several units in the Obama administration have been using their existing statutory authority to adopt rules or guidance requiring extensive disclosures about greenhouse gases (GHGs) in a wide variety of contexts. Every registered public company, the operators of many industrial facilities, and those involved in significant federal actions are now or will soon be covered by one or more of these requirements.

Court Of Appeals Expands Seqra Standing After An 18-Year Detour, Michael B. Gerrard

Faculty Scholarship

The most controversial decision in New York environmental jurisprudence is almost certainly Society of the Plastics Industry v. County of Suffolk (Plastics), in which the Court of Appeals ruled in 1991 that plaintiffs in suits under the State Environmental Quality Review Act (SEQRA) must show that they are affected differently than the public at large. In the 18 years since that decision, the New York Attorney General, the State Department of Environmental Conservation, the New York State and New York City bar associations, and numerous environmental groups all filed amicus briefs or issued reports calling for the reversal of …

The Obama Administration's First Environmental Policy Changes, Michael B. Gerrard

Faculty Scholarship

Under President Clinton the U.S. EPA took the position that it had the authority to regulate greenhouse gases (GHGs) from motor vehicles under the Clean Air Act as written, but the Clinton administration did not take affirmative steps to actually employ that authority. When President Bush took office, the General Counsel of EPA took the opposite position, stating that it would need special authorizing legislation in order to architect that regulation. A petition was filed with the EPA by the International Council for Technology Assessment and other organizations asking EPA to impose such regulations. EPA denied the petition. This led …

International Executive Agreements On Climate Change, Hannah Chang

Sabin Center for Climate Change Law

The difficulty of ratifying any future climate change agreement through the Article II treaty process calls for an understanding of the scope of the President’s independent power to enter into internationally binding commitments related to climate change. This power is necessarily limited, but as this paper shows, the President’s foreign affairs powers, together with authority derived from existing treaty obligations and federal statutes, provide legal authority for the President to enter executive agreements relating to measurement, reporting, and verification; aviation emissions; cooperative research and development in science and technology; and capacity-building for developing countries.

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …

Survey Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending.

Much attention has deservedly gone to the U.S. Supreme Court’s decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting.

This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those …

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

Faculty Scholarship

In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release …

Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes were enacted, or at least spurred along, in direct response to disasters. The Federal Water Pollution Control Act of 1972 followed from the Santa Barbara Oil Spill; the Emergency Planning and Community Right-to-Know Act (EPCRA) resulted from the chemical gas disaster in Bhopal, India; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was sparked by the Love Canal incident; and the Oil Pollution Acte was a reaction to the Exxon Valdez oil spill.

The terrorist attacks of September 11, 2001 have led to the Homeland Security Act and to several other enactments. The collapse of the …

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

The Role Of Existing Environmental Laws In The Environmental Justice Movement, Michael B. Gerrard

Faculty Scholarship

I will focus on what can and cannot be done under the existing statutory and regulatory structures and the common law to protect minority communities from environmental hazards. I will highlight some of the current holes in the legal system to suggest areas where statutory reform might be useful. Fights against these facilities break down between future unbuilt facilities, on the one hand, and existing facilities on the other hand.

A broad array of statutes regulates future facilities, such as landfills, incinerators, interstate highways, and polluting factories. Some of these laws are aimed at providing information and requiring the decision …

The Dynamics Of Secrecy In The Environmental Impact Statement Process, Michael B. Gerrard

Faculty Scholarship

The environmental impact review laws – the National Environmental Policy Act (NEPA) and its state counterparts – are premised on the idea of full and open disclosure. The notion underlying these laws is that if the government and the public are fully informed of the impacts of and alternatives to proposed actions, they will make wise decisions about whether and how to proceed. The Freedom of Information Act and its state counterparts even more explicitly seek to open up governmental deliberations to the public. Considered together, these two types of laws would lead one to believe that secrecy has little …