Law Commons^™

Removing Carbon Dioxide Through Seaweed Cultivation: Legal Challenges And Opportunities, Korey Silverman-Roati, Michael B. Gerrard, Romany M. Webb

Faculty Scholarship

Scientists increasingly agree that carbon dioxide removal will be needed, alongside deep emissions cuts, to stave off the worst impacts of climate change. A wide variety of technologies and strategies have been proposed to remove carbon dioxide from the atmosphere. To date, most research has focused on terrestrial-based approaches, but they often have large land requirements, and may present other risks and challenges. As such, there is growing interest in using the oceans, which have already absorbed more than a quarter of anthropogenic carbon dioxide emissions, and could become an even larger carbon sink in the future.

This paper explores …

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement And Seaweed Cultivation: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

This paper explores two ocean-based carbon dioxide removal strategies – ocean alkalinity enhancement and seaweed cultivation. Ocean alkalinity enhancement involves adding alkalinity to ocean waters, either by discharging alkaline rocks or through an electrochemical process, which increases ocean pH levels and thereby enables greater uptake of carbon dioxide, as well as reducing the adverse impacts of ocean acidification. Seaweed cultivation involves the growing of kelp and other macroalgae to store carbon in biomass, which can then either be used to replace more greenhouse gas-intensive products or sequestered.

This paper also examines the international and U.S. legal frameworks that apply to …

The Legal Framework For Offshore Carbon Capture And Storage In Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Averting catastrophic climate change requires immediate action to prevent additional carbon dioxide and other greenhouse gases being released into the atmosphere. However, even that may not be sufficient, with many scientists now warning that it will likely also be necessary to reduce the existing atmospheric carbon dioxide load. That could be achieved using negative emissions technologies that remove carbon dioxide from the atmosphere and store or utilize it in some way. One promising technology is direct air capture (“DAC”) which uses liquid chemical solutions or solid sorbent filters to capture carbon dioxide from the air and concentrate it into a …

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 …

New York Environmental Legislation In 2018, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2018, New York State enacted a Drug Take Back Act in response to environmental and public health concerns about improper disposal of unused drugs. Another enactment gave the Department of Health (DOH) greater discretion in enforcement actions against landlords that do not take adequate action to abate lead paint. Other new laws tinkered with legislation enacted in 2017 to protect drinking water and to promote clean energy and energy storage. In addition, Governor Andrew M. Cuomo signed laws concerning farmland and pollinator protection. In New York City, a Styrofoam ban went into effect on Jan. 1 after courts rejected …

Overcoming Impediments To Offshore Co2 Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Limiting future temperature increases and associated climate change requires immediate action to prevent additional carbon dioxide being released into the atmosphere and to lower the existing atmospheric carbon dioxide load. This could be advanced through carbon capture and storage (CCS), which involves collecting carbon dioxide that would otherwise be released by power plants or similar facilities and injecting it into underground geologic formations, where it will remain permanently sequestered. The techniques developed for CCS can also be used to sequester carbon dioxide that has been removed from the atmosphere using direct air capture or other negative emission technologies. Past CCS …

New York’S New Congestion Pricing Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In the biggest change in local transportation policy in a generation, maybe two, “congestion pricing” will be instituted in Manhattan’s Central Business District in early 2021. It is the first action in decades that could actually lower traffic congestion, and that could provide a stable funding base for the capital program of the Metropolitan Transportation Authority (MTA). It also transfers considerable power from the Mayor to the Governor.

New Climate Law Will Reshape Ny’S Key Sectors, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Deep changes in the way electricity is generated, people and goods move around, and buildings are erected and renovated in New York will be required by the Climate Leadership and Community Protection Act (CLCPA), which both houses of the state Legislature have passed and Governor Andrew Cuomo has promised to sign.

Three Legal Visions Of A ‘Green New Deal’, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Rep. Alexandria Ocasio-Cortez (D-N.Y.), who has rocketed to such fame that she is now widely known simply as AOC, and Sen. Edward Markey (D-Mass.), co-father of Waxman-Markey, the cap-and- trade bill that narrowly passed the House in 2009 but died in the Senate, have introduced identical resolutions to create a “Green New Deal.” H. Res. 109, S. Res. 59.

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

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 …

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 …

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 …

Legal Tools For Cities To Cope With Extreme Heat, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Heat causes more deaths in the U.S. than any other natural hazard – more than floods, hurricanes, or tornadoes. As a result of climate change, it is getting worse. Average annual temperatures are now about 1.8°F higher than they were over the period 1895-2016, they will go up to about 2.5°F by mid-century, and if greenhouse gas emissions continue on the current path, they could rise almost 12°F by 2100, and heat waves that now occur once every 20 years could become annual events, according to the U.S. Global Change Research Program.

State Authority To Preempt Local Laws Regulating Renewable Energy Projects, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The New York State Energy Plan, announced by Gov. Andrew Cuomo in 2015, calls for a doubling to 50 percent of the portion of the electricity used in the state that comes from renewable sources by 2030. This would lower greenhouse gas emissions, create jobs, and reduce the use of fossil fuels, especially natural gas.

Much of this new renewable energy would be generated by wind and solar projects. Some if it would be from wind facilities to be built offshore in the Atlantic Ocean; the rest would be on the land.

New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2017, New York State enacted multiple laws that tackle aspects of two major environmental issues facing the state: protecting water quality and advancing the state’s clean energy goals. In addition, Governor Andrew Cuomo signed laws concerning oil tankers on the Hudson, elephant welfare, food waste, and lead paint. He also approved a moratorium barring New York City’s plastic bag fee from taking effect. This annual survey reports on these developments and other environmental laws enacted in 2017.

Survey Of 2016 Cases Under New York State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 46 cases in 2016 under the New York State Environ­mental Quality Review Act (SEQRA), which requires the preparation of an environmen­tal impact statement (EIS) for state or local governmental actions that could have a significant impact.

For only the second time since this annual survey began in 1991, no court overturned any agency decision where an EIS had been prepared. Eight challenges involved an EIS – all failed. In circumstances where there was no EIS, challeng­ers won four and lost 20. In sum, 2016 was a bad year for plaintiffs in SEQRA cases.

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 …

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 …

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate …

Sadly, The Paris Agreement Isn't Nearly Enough, Michael B. Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa, and other parts of the continent.

Three Major Developments In International Climate Change Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The past month has seen a remarkable set of developments at the international level in controlling greenhouse gas (GHG) emissions – the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofluorocarbon emissions and pollution from airplanes. The stunning election of Donald Trump on Tuesday casts the future of some but not all of these efforts into doubt, however.

Effect Of The Paris Climate Agreement On U.S. Businesses, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In December, 195 countries convened in Paris for the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change. To the surprise and delight of most of the participants, the conference ended in consensus among all the participants on a document, the Paris Agreement, that will be opened for signature on April 22, 2016. President Barack Obama has indicated that the United States will sign it. (Co-author Michael Gerrard participated in the conference.)

New York Environmental Legislation And Regulations In 2013, Michael B. Gerrard

Faculty Scholarship

New laws were signed by Governor Andrew Cuomo in 2013 regarding notice requirements in the Brownfield Cleanup Program, Bottle Bill enforcement, mercury thermostats, oversized lobsters, shark fins, and Eurasian boars, among other things. On the regulatory front, the state promulgated final regulations concerning New York’s participation in the Regional Greenhouse Gas Initiative and regulatory relief for certain dairy farms, and proposed regulations for liquefied natural gas facilities and invasive species.

This annual survey describes new environmental laws that were enacted in New York in 2013, as well as several significant regulatory developments. The survey identifies the laws by their chapter …

Us Federal Climate Change Law In Obama’S Second Term, Michael B. Gerrard, Shelley Welton

Faculty Scholarship

This commentary details the United States’ progress in advancing climate change law since President Barrack Obama’s re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has …

Survey Of 2013 Cases Under State Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts issued 38 decisions in 2013 under the State Envi­ronmental Quality Review Act (SEQRA). This represented the third-lowest number of deci­sions since this annual survey began in 1990; lower numbers were found only in 2011 (35) and 2010 (37).

Federalism Obstacles To Advancing Renewable Energy, Michael B. Gerrard

Faculty Scholarship

Many states have been taking steps to increase the use of renewable energy sources such as wind and solar. How­ever, because electricity is a commodity in interstate commerce and electrons once on the grid do not respect state borders, these state efforts have begun to collide with the dormant Commerce Clause (the principle that the Constitution’s grant of authority to Con­gress to regulate commerce among the states also limits the ability of the states to discriminate against other states) and related constitutional doctrines.

Deluge Of New York City Laws Guards Against Flooding, Protects Environment, Michael B. Gerrard

Faculty Scholarship

The last year of Michael Bloomberg’s 12-year term as mayor of New York City saw a remarkable and little-noticed deluge of new environmental laws. The City Council passed and the mayor signed more than 50 envi­ronmental bills. Over half of these laws were passed in the aftermath of Superstorm Sandy and focused on making infrastructure more resilient, improving emergency preparedness and response, and easing recovery for homeowners and businesses. In addi­tion, laws were enacted concerning clean energy, improving energy and fuel efficiency, reducing emissions from vehicles, and strengthening the city’s recycling laws.

Michael Bloomberg's Environmental Record, Bill De Blasio's Promises, Michael B. Gerrard

Faculty Scholarship

On Nov. 23, 2001, under the headline “Michael Bloomberg’s Environmental Agenda,” this column began, “The stun­ning victory of Michael R. Bloomberg in the Nov. 6 election means that City Hall will be occupied by a man who has no record in environmental affairs.” The column went on to summarize the promises found in Bloomberg’s campaign literature and other statements.

Now with Mayor Bloomberg’s term about to end and Bill de Blasio’s about to begin, we can compare the outgoing mayor’s accomplishments to his promises, and also look at what the incom­ing mayor has pledged.